Finnish Yearbook of International Law: Volume 21, 2010 9781472566263, 9781849462259

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The International Criminal Court and the Responsibility to Protect: Synergies and Tensions Pekka Niemelä

Introduction On 26 February 2011 the UN Security Council adopted its first resolution concerning the situation in Libya.1 In addition to imposing sanctions and an arms embargo against Gaddafi’s regime, the Council referred the situation to the Prosecutor of the International Criminal Court (ICC) and, in one of the introductory clauses outlining some of the normative conclusions drawn from the facts, recalled ‘the Libyan authorities’ responsibility to protect its population’. The paradox of simultaneously implying that crimes against humanity had already taken place (the ICC referral) and reminding those responsible of their responsibility not to commit them is of course obvious, and gives rise to a commonly drawn distinction between the ICC and the Responsibility to Protect (R2P) concept. If the ICC referral (and other operative paragraphs of the resolution) is a case of hard, enforceable law, the stuff of international lawyers and conventional legal analysis, then the reference to R2P appears an inconsequential rhetorical move devoid of clear legal effect. And, more generally, the concept’s impact on the high politics that produced resolutions 1970 and 1973 (the latter authorizing use of force to protect Libyan civilians) seems either marginal or difficult to grasp. Both the ICC and R2P have received extensive academic commentary, but hardly any literature exists on their mutual relationship. This is perhaps surprising given that the two share a common normative core: at the moment, the jurisdiction of the ICC covers war crimes, crimes against humanity and genocide (committed after 1 July 2002), whereas R2P is first and foremost identified with the prevention of these crimes (and of ethnic cleansing). The relative infancy of these two institutional projects no doubt partly explains this state of affairs. The ICC is yet to issue its first judgment and some 150 states formally endorsed R2P only 1.

SC Res. 1970, 26 February 2011.

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in 2005 in the World Summit Outcome Document.2 Moreover, the post-2005 R2P practice is neither easy to identify nor to appraise, and the broader debate on the concept remains thoroughly elusive and inconclusive. So if the extant analyses of the ICC and R2P constitute a contested work-inprogress, it is not surprising that their mutual relationship has produced very little serious research thus far. Yet, and in particular outside academia, the ICC/R2P nexus has been noticed more frequently. For instance, the seminal UN document on R2P, issued by Ban Ki-moon in 2009, makes several references to the ICC, describing the Court as an ‘essential tool in implementing the responsibility to protect’.3 In the Secretary-General’s report, the ICC acts, through dissuasion and deterrence, as just one of the atrocity prevention instruments in the broader R2P toolkit designed to prevent future atrocities. On the ICC’s part, the Court’s chief prosecutor, José Luis Moreno Ocampo, has likewise addressed the issue of how the Court could help implement R2P,4 thereby reinforcing the popular view that R2P has policy relevance for a number of institutional contexts and is above all about enforcing and managing various atrocity prevention mechanisms. Of course, such general and straightforward descriptions reveal very little about the (mutual) dynamics of the ICC and R2P. Rather, they invite a number of fundamental questions: is it credible to claim that the ICC deters and prevents political conflict? What consequences flow from an ICC intervention in particular conflicts? What are the points of reference as regards R2P’s gradual institutionalization within the UN? What is at stake, and what forms of expertise and power are mobilized, when the provision of protection becomes a political priority? By foregrounding states and individual governments, aren’t the ICC and R2P reinforcing the classical public/private divide with all the attendant problems? Is the idea of coordination between the ICC and R2P related policies plausible to begin with? These are just some of the questions that occupied the minds of the organizers of the conference, ‘The International Criminal Court and the Responsibility to Protect: Synergies and Tensions’, held at the University of Helsinki in December 2010 with the sponsorship of the Ministry for Foreign Affairs of Finland. Mr. Tapio Kanninen, a long-serving, now retired UN official, came up with the preliminary idea for the conference, and his proposal was taken up and elaborated further by the organizers with the Erik Castrén Institute of International Law and Human Rights. As the conference flyer put it, the main purpose of the conference was to 2. 3. 4.

World Summit Outcome Document, UN Doc. A/RES/60/1, 24 October 2005. Implementing the responsibility to protect, Report of the Secretary-General, UN Doc. A/63/677, 12 January 2009, at para. 18. José Luis Moreno Ocampo, The Responsibility to Protect: Engaging America, Keynote Address at the conference The Responsibility to Protect: A Strategy for Engaging America, held in Chicago November 15-17 2006, see at (visited 15 November 2011).

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‘provide critical and intellectually rigorous guidance for policy-makers working in the two fields’, and, in all modesty, we dare to say that the purpose was well served. Luckily our sponsors were open-minded and gave us a free hand regarding the substance of the seminar, and the idea was to invite speakers with different professional backgrounds. The result was a truly heterogeneous mix of academics, policy-makers and practitioners, whose approaches turned out to be, as was expected, radically different and ultimately incommensurate. Since the ICC/R2P nexus is rather an unexplored terrain, we thought that the seminar proceedings might be of interest to a wider academic audience. While we asked the speakers to simply send in their papers as such, some of them seized the opportunity and developed their papers into full-blown academic articles. There is a long tradition of summarizing the contents of papers (in an introduction) forming a ‘Symposium’ in academic publications. Without questioning the value of such summaries, we felt it best to let the reader decide what to make of the contributions – what aspects of the twin topic the papers highlight and why, what they leave aside, what assumptions undergird the arguments, and what force the arguments possess – independently of any prejudgments on our part. Suffice it to say that the contributions reflect highly divergent institutional priorities and traditions, ranging from the critical-theoretical to the more approving-practical. And perhaps the only general conclusion that can be drawn is that no consensus on the ICC and R2P is achievable and that their imprint on the world will remain an unsettled, perspectival issue. If public and political talk on the ICC and R2P is often underlain by an uncritical moral ethos, this Special Section makes abundantly clear that such outlook has no intrinsic merit and is just one way of describing the ‘reality’ of the ICC and R2P. This is no unimportant achievement.

Born Posthumously: Rethinking the Shared Characteristics of the ICC and R2P David Chandler* AbstrAct: The shared characteristics of R2P and the ICC are considered in the light of their emergence as institutional responses to the problems of liberal interventionism in the late 1990s. Both these institutions are often understood by their advocates as having belied the universalist promise of their birth. This discursive understanding of the limits of R2P and the ICC as being due to the shifting international culture post-9/11 is challenged through re-reading their establishment as an attempt to limit and evade the asserted responsibilities of Western powers in the post-colonial world. The article also traces the shared articulation of this process of limitation and evasion through the development of an institutionalist outlook, which encourages indirect forms of intervention, held to be empowering or capacity-building the post-colonial state, rather than directly undermining its sovereignty. It notes that R2P, operating as a moral norm rather than as a legal mechanism, was better able to make this transitioning than the ICC, and that latterly the ICC has been illustrating a similar shift in priorities and approach. Keywords: R2P, ICC, post-liberal, post-interventionist, institutionalist, sovereignty

1. Introduction This paper argues that both the ICC and R2P have had to overcome immense difficulties as they were born out of the retreat of a certain global perspective of international regulation that, in short, could be understood within a liberal governing rationality. In their development they have come to terms with and helped to articulate the changed understanding of the international sphere; one which is less liberal and therefore articulates a different understanding of international in*

University of Westminster ([email protected]). This paper was initially prepared for the international conference ‘The International Criminal Court and the Responsibility to Protect: Synergies and Tensions’, hosted by the Erik Castrén Institute of International Law and Human Rights, University of Helsinki, 3-4 December 2010. The author would like to thank Martti Koskenniemi, Anne Orford, Stephen Hopgood and others who attended for their helpful insights and comments. Full responsibility for what follows is, of course, mine alone.

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tervention, which could be usefully termed ‘post-liberal’ or ‘post-interventionist’.1 The post-interventionist world no longer counter positions external intervention to sovereignty as if this was a zero-sum game, or articulates intervention in the language of a clash of rights or as a problem which needs a legal solution, but rather sees the internationalisation of state forms as a process of empowerment, of capacity- and capability-building. Despite the increased regulatory engagement, the discourse is one of prevention and the building of sovereignty, not of intervention and the denial of sovereignty.2 In their attempts to come to terms with this different – post-interventionist – framing of the international sphere both institutions have adapted, with R2P leading the way and the ICC following more slowly as it has more formal institutional baggage. The forms of adaptation illustrate clearly how our understanding of the international sphere, and intervention within this, has shifted from the 1990s, when these institutions were initially conceived, to the 2010s were it appears that these institutions are finding their feet and regaining international credibility, articulating the modes of reasoning of a post-interventionist world.

2. Liberal Interventionism of the 1990s In a traditional liberal framing, expressed in the disciplinary division between political theory and international relations, the borders of the sovereign state demarcated a division between a world of law, ethics, community and progress and a world – the international – which lacked all these attributes, as it lacked a sovereign and the constitution of a legal and political sphere distinct from the bare and contested relations of power and interest. In this liberal understanding, the only solution to international conflict was the extension of the state form to the international level and with this the constitution of a global community bound by shared norms and laws.3 The discipline of international relations (IR) engaged with the questions of why this was not possible – why the ‘domestic analogy’ with individuals in the pre-social contract state of nature was not a complete one – and of how forms of stability could be maintained amidst this ever constant threat of conflict (for example, through the realist focus upon 1.

2. 3.

On the concept of ‘post-liberal’, see David Chandler, International Statebuilding: The Rise of Post-Liberal Governance (Routledge: London, 2010); on ‘post-intervention’, see Michel Foucault, The Birth of Biopolitics: Lectures at the Collège de France 1978-1979 (Palgrave: Basingstoke, 2008) and Christian Joerges, ‘Unity in Diversity as Europe’s Vocation and Conflicts Law as Europe’s Constitutional Form’, LSE ‘Europe in Question’ Discussion Paper Series 28, December 2010. See, Chandler, ibid. and Ashraf Ghani and Clare Lockhart, Fixing Failed States: A Framework for Rebuilding a Fractured World (Oxford University Press, 2008). See Hedley Bull, ‘Society and Anarchy in International Relations’, in Herbert Butterfield and Martin Wright (eds), Diplomatic Investigations: Essays in the Theory of International Relations (George Allen and Unwin: London, 1966) at 35-50.

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the balance of power, various understandings of liberal institutionalism, or the English School’s focus on shared norms and values). In the 1990s, with the collapse of the cold war divide, many theorists and political leaders suggested that the end of the problematic of IR had been reached with the domestication of the global. States began to articulate ‘ethical’ foreign policies, eschewing the idea of national interests and articulating the values of ‘global citizenship’. In this ‘new international order’, leading Western states suggested that – in the absence of a formally constituted global sovereign or world government – they could act as putative sovereigns of the international sphere. Through discussions of human rights protection and humanitarian intervention, leading policy discourses of the international framed the world in liberal terms whereby Western states and international institutions, such as the United Nations, NATO, the OSCE and the European Union, increasingly came to envisage international policy making as if they were acting not merely as representatives of their own constituencies but as imagined global governors. In this context, the discursive disciplinary divide between political theory and international relations – the division of internal and external understandings of politics, law and ethics – began to dissolve. The boundaries of sovereignty appeared not to matter and Western governments began to conceive of domestic and foreign policies in similar terms, regardless of representation or accountability.4 In the terminology of Foucault, the international sphere was imagined as a ‘liberal economy of power’5 in which freedom and security could be framed similarly in both the domestic and international arenas. The question of ‘intervention’ was calculated on the basis of this balance: The principle of calculation is what is called security. That is to say, liberalism, the liberal art of government, is forced to determine the precise extent to which and up to what point individual interest, that is to say individual interests insofar as they are different and possibly opposed to each other, constitute a danger for the interest of all.6

The particular freedoms of state sovereignty were weighed against the collective security of ‘international society’, held to be manifest in the duty of protecting the rights and security of all. Security discursively shifted from a concern of states, with the protection and promotion of their national interests, to that of human security, construed as a reflection of the immanent or emerging ‘global community’.7 4. 5. 6. 7.

See, for example, Robert Cooper, The Breaking of Nations: Order and Chaos in the Twenty-first Century (Atlantic Books: London, 2003). Foucault, Biopolitics, supra note 1, at 65. Ibid. As Rob Walker perceptively notes, at stake in discourses of state-based security vis-à-vis global or human-based conceptions of security in the 1990s was the understanding of ‘the form

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3. The Crisis of Liberal Interventionism The liberal framing of the international sphere imagined the domestication of conflict under the regulatory gaze of the putative global sovereigns, acting within or without the consent of the UN Security Council, as representatives of an immanent, global or cosmopolitan legal framework.8 The power to act – to intervene – of major Western powers, began to be equated with a moral legitimacy to act in accordance with higher laws, articulated over the NATO war over Kosovo, in terms of ‘natural law’, ‘cosmopolitan law’ or ‘global ethics’.9 The ‘Spider-Man’ movie encapsulated the satisfaction with moral hierarchy, strongly articulated at the time, asserting that ‘with great power comes great responsibility’.10 However, the assertive and optimistic mood of the 1990s began to dissipate as the putative claims to global sovereignty resulted in a counter discourse of Western responsibility. If the West was now responsible, why was it that troops were not dispatched to prevent genocide in Rwanda? Why did Western states prevaricate and delay when intervention was needed to prevent genocide in Bosnia? Why was it that the war over Kosovo, the asserted high water mark of global liberal interventionism, was fought from 15,000 feet, preventing the loss of a single NATO life but at the cost of the ‘collateral’ damage of the deaths of many of those who NATO was sent to save? Why was it that global responsibility seemed to stop when it came to addressing the structural inequalities of poverty and insecurity that blighted whole swathes of the post-colonial world, especially sub-Saharan Africa? The political leaders of Western states and international institutions realised that the discourse of global ethics and Western responsibility had its limits: that the consequences of dismissing the importance of international law and sovereign statehood undermined, rather than enforced, their moral claims to global leadership. It was in the context of the rolling back of claims of Western responsibility, and of the overt claims of Western powers to the mantle of global sovereignty, that the of political community’ itself. See Rob Walker, ‘The Subject of Security’, in Keith Krause and Michael C. Williams (eds), Critical Security Studies: Concepts and Cases (University of Minnesota Press: Minneapolis, 1997) at 61-81 and 70-71. See also David Chandler and Nik Hynek (eds), Critical Perspectives on Human Security: Rethinking Emancipation and Power in International Relations (Routledge: London, 2010). 8. See, for example, David Held, Democracy and the Global Order (Polity: Cambridge, 1995); Daniele Archibugi (ed.), Debating Cosmopolitics (Verso: London, 2003); Mary Kaldor, Global Civil Society: an Answer to War (Polity: Cambridge, 2003). 9. See ‘Editorial Comments: NATO’s Kosovo Intervention’, 93 American Journal of International Law (1999) 824-862; Nico Krisch, ‘Review Essay: Legality, Morality and the Dilemma of International Intervention after Kosovo’, 13 European Journal of International Law (2002) 323-335. 10. This moral message of the need to engage to struggle against wrong-doing is made by SpiderMan’s father in the 2002 movie Spider-Man, the first of the Hollywood blockbuster trilogy.

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ICC and the R2P were born. Both these institutions can retrospectively be understood as emerging in response to the need to limit the claims upon the West; as a retreat from Western responsibility. Legal guidelines needed to be re-established to remove direct accountability for judging and balancing the claims of freedom and security and intervention. The order of the international needed to be reconstituted. The sovereign state had to return to assume its traditional mediating role as the essential discursive barrier separating Western social and economic domination of the world from Western political responsibility for its consequences.

4. The Birth of the ICC and R2P R2P was formally conceived in 2000, in the wake of the Kosovo campaign, where Western states, under the banner of the NATO alliance launched a humanitarian intervention without the consent of the UN Security Council.11 The International Commission on Intervention and State Sovereignty (ICISS), which produced the ‘Responsibility to Protect’ report in 2001,12 sought to deflect attention from Western responsibility and Western rights of intervention, arguing that responsibility for the protection of basic rights and security was shared but was primarily the responsibility of the domestic state concerned. Starting from the functional responsibility to protect the individual, the report steered away from the liberal discourse of intervention, which pitted the universal ‘human’ rights of individuals against the particularist, conditional, sovereign rights of states. Defining the protection of rights as part of the responsibility of sovereignty, the report argued that there was no clash of rights and that Western states had responsibilities to enable and facilitate the sovereign capacities of non-Western states and that only if this failed would coercive intervention be necessary. The report sought to assuage the advocates of Western intervention that bringing the state back in was not a retreat from Western responsibility but, at the same time, was keen to mediate the relationship between Western responsibility and the problems of conflict in the non-Western world, further seeking to bring in the ambiguous normative framework of ‘just war’ to moderate the more interventionist arguments of those who argued that the liberal framing of interventionism was essentially without sovereign limits, and amounted to no more than ‘cosmopolitan law enforcement’, more akin to policing than war.13 11. Although its roots lie in Deng et al’s assertion of ‘Sovereignty as Responsibility’ in response to super power withdrawal from Africa and the need to constitute local and regional forms of conflict-management. See Francis Deng et al, Sovereignty as Responsibility: Conflict Management in Africa (Brookings Institution: Washington D.C., 1996). 12. Responsibility to Protect, The Report of the International Commission on Intervention and State Sovereignty (International Development Research Center: Ottawa, 2001). 13. See Kaldor, Global Civil Society, supra note 8.

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The ICC was established in 1998 by the Rome Statute and came into force in July 2002. The establishment of the Statute followed similar concerns as those which led to R2P: the need to ‘outsource’ judgments of responsibility and shift the balance away from Western enforcement responsibility to the domestic state and its leaders. Its establishment was deeply influenced by the problems of the ad hoc international tribunals set up to deal with the former Yugoslavia and with Rwanda. These ad hoc tribunals were set up the basis of Western responsibility to judge and thereby to intervene in conflict situations and Western governments faced calls for a multitude of ad hoc tribunals to be set up and even for calls for universal jurisdiction, where domestic tribunals in Western states could pass judgements on events in third countries with third country parties. Through setting up the independent court, the construction of the ICC thereby sought to delimit the demand for Western judgements and responsibility to address war crimes committed in non-Western states. The ICC replaced the need for ad hoc tribunals or for universal jurisdiction and similarly sought to bring the non-Western state back in as a mediator between the West and the problems of the post-colonial world. The framing of the ICC’s mandate was very similar to that used by the R2P report, suggesting that non-Western states should be seen as primarily responsible for judging war crimes and that only if non-Western states were incapable or unwilling to do, would the Chief Prosecutor step in on behalf of the international community.

5. The Crisis of R2P and the ICC Both R2P and the ICC were born into a world where the liberal discourse of the globalising or domestication of the international sphere shifted onto the defensive and clearly articulated the signs of retreat from the triumphalist claims of the early- and mid-1990s.14 However, for the advocates of R2P and the ICC, these institutions were understood, at the time, as representing and institutionalising the gains of that era. They were seen to be symbols of the global cosmopolitan order of liberal rights and justice, which the 1990s appeared to promise. For these advocates, the evolution of both the ICC and R2P has been a disappointment and hard to explain. Why has the interventionist promise of R2P been shelved? Why did the UN World Summit agreement of 2005 entirely separate R2P from the need to reform the decision-making process of intervention in the UN Security Council? Why has the ICC taken on so few cases? Why does the West seem so reluctant to support the ICC in cases of controversy? Why is the ICC increasingly seen to be putting the needs of stability ahead of the need for justice? 14. See further, David Chandler, Empire in Denial: The Politics of State-Building (Pluto Press: London, 2006).

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In this framework, the crisis of R2P and the ICC is seen to be a product of the retreat from the aspirations of the 1990s, during the 2000s, especially following 9/11, and therefore caused by an alleged return to a more ‘realist’ focus on security and stability.15 This framing retrospectively brushes under the carpet the fact that both R2P and the ICC emerged as products of the crisis of liberal internationalism in the 1990s. They were born already posthumously, although this was not recognised by the activists and advocates who understandably conflated the retreat from claims of Western responsibility with their own aspirations for a cosmopolitan or universalist transformation of the international order. Despite the still birth of R2P and the ICC, the retreat of Western powers from the universalist framings of the first post-cold war decade has enabled both R2P and the ICC to recover some creditability and to discursively frame the post-interventionist post-liberal international order.

6. The Rise of a Post-Liberal Order R2P was, in fact, literally still-born, substantially transformed already in its resuscitation by Kofi Annan in 2003, in preparation for the World Summit.16 In its revived form, R2P was refitted into a post-interventionist framework, concerned with prevention, on the basis of an institutionalist understanding of conflict and underdevelopment in the non-Western world.17 The UN Secretary General’s follow-up report to the World Summit, illustrates this approach well in asking the question ‘why one society plunges into mass violence while its neighbors remain relatively stable’?18 The answer it provides is the institutional framing; understanding mass atrocities outside of a concern with economic and social relations, focusing merely on the institutional structures which are held to shape the behavior of individuals, either providing opportunities or incentives for mass atrocities or limiting the possibility of these occurring: Genocide and other crimes relating to the responsibility to protect do not just happen. They are, more often than not, the result of a deliberate and calculated 15. See, for example, Gareth Evans, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All (Brookings Institution: Washington D.C., 2008); Alex Bellamy, Responsibility to Protect: The Global Effort to End Mass Atrocities (Polity: London, 2009). 16. See Evans, ibid.; Bellamy, ibid.; David Chandler, ‘Unravelling the Paradox of “The Responsibility to Protect”’, 20 Irish Studies in International Affairs (2009) 27-39. 17. See, for example, Douglass C. North, Institutions, Institutional Change and Economic Performance (Cambridge University Press, 1990); World Bank, World Development Report 1997: The State in a Changing World (IBRD/World Bank: Washington D.C., 1997); Reforming Public Institutions and Strengthening Governance: A World Bank Strategy (IBRD/World Bank: Washington D.C., 2000). 18. Implementing the responsibility to protect, Report of the Secretary-General, UN Doc. A/63/677, 12 January 2009, at para. 15.

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Finnish Yearbook of International Law (Vol. 21, 2010) political choice, and of the decisions and actions of political leaders who are all to ready to take advantage of existing social divisions and institutional failures.19

The understanding of mass atrocities as a product of institutional shortcomings then sets the agenda for international preventive engagement to assist in institutional capacity-building that would make states ‘less likely to travel the path to crimes relating to the responsibility to protect’: Experience and common sense suggest that many of the elements of what is commonly accepted as good governance – the rule of law, a competent and independent judiciary, human rights, security sector reform, a robust civil society, an independent press and a political culture that favours tolerance, dialogue and mobility over the rigidities of identity politics – tend to serve objectives relating to the responsibility to protect as well.20

There is no liberal ‘quick fix’ of intervention and exit-strategies, but much lower expectations, stressing the lack of universality and the difference between institutions and cultures, which constitute a barrier to Western capacity and responsibility. Here, the best that the international community can do is to indirectly work to facilitate good governance mechanisms and capacity-build state institutions which are the ultimate solution, rather than the direct provision of expensive social, economic and military resources. The ICC too, has shifted towards this post-interventionist framework, arguing that the prosecution of war criminals is just part of its remit. In 2010, twelve years after its creation and eight years after the entry into force of its Statute, the first ever Review Conference took place in Kampala, Uganda. At this review point it was clear that the ICC sought to follow R2P in regaining international creditability on the basis of shifting from intervening against sovereignty to understanding its role as capacity-building: strengthening sovereignty through prevention rather than undermining it through intervention. At the review conference this was promoted in terms of ‘positive complementarity’, emphasizing the ICC’s role in the construction of national capacity. Rather than imposing universal justice, the ICC is increasingly referring to itself as a facilitator and empowering agency, working with and involving states, international organisations and civil society in the collective project of strengthening justice at the national level. Just as R2P has been recast as a framework focusing on prevention rather than intervention, the ICC has attempted to recast itself as capacity-building and strengthening non-Western states rather than as prosecuting or judging them.21 19. Ibid., para. 21. 20. Ibid., para. 44. 21. See for a good overview, Morten Bergsmo, Olympia Bekou and Annika Jones, ‘Complementarity After Kampala: Capacity Building and the ICC’s Legal Tools’, 2 Goettingen Journal of International Law (2010) 791-811.

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7. Conclusion In the post-interventionist framework, the West no longer has the responsibility to secure, to democratise, or to develop the non-Western world. The regulatory mechanisms of empowerment, prevention and capacity-building are premised upon the understanding that there can be no clash of rights between sovereignty and intervention, no inside and no outside. This is not because of the rise of the immanent global sovereign but precisely because of its demise. In the world of R2P and the ICC the dynamic of engagement is provided by the lack of capacity of the target or object states and societies rather than the representative rights of global authority. This framing assumes that the autonomy of the non-Western state is the problem, necessitating regulatory management. State autonomy facilitates or necessitates preventive engagements rather than acting as a barrier to them. External capacity-building to build sovereignty cannot be subjected or bound by liberal framings of clashes of rights or of law. Responsibility once again stops at the boundaries of the sovereign state but this is a state understood as incapable of managing its autonomy without the help of external facilitators.

Finnish Perspectives on the ICC and R2P Päivi Kaukoranta* AbstrAct: The talk addresses Finnish perspectives on the International Criminal Court and the Responsibility to Protect in the context of contemporary Finnish State Practice. Synergies between the ICC and R2P are highlighted in the area of the rule of law as well as in the pursuit for universal enforcement and prevention of mass atrocities. Finally, the talk finishes with discussing the importance of both grass-roots organisations’ and states’ co-operation with the international criminal system for the continued relevance and growth of both the operation of the ICC as well as the development of R2P. Keywords: R2P, ICC, Finnish State Practice, actor co-operation

The speakers in the last session of the conference on the International Criminal Court (ICC) and the Responsibility to Protect (R2P) were given a rather difficult task of looking into the future, of giving a vision of the road ahead and of discussing how the international community might best co-ordinate its future action as regards the ICC and R2P. Deficiencies may be – and have been – identified, but it is more difficult to produce feasible answers. We have heard quite critical voices with respect to the ICC. This presentation attempts to provide some balancing considerations and builds upon the view that the ICC will ultimately have a useful role to play when combating the most serious crimes of concern to the international community. The common values of democracy, peace, security, the Rule of Law, and respect for human rights fall within the same ‘family’, and they are all closely interlinked with both the concept of R2P and the work of the ICC. The fight against impunity is one of the priorities of Finnish foreign policy, and Finland participates actively in strengthening and enhancing the work of the ICC. This engagement should also continue in the future. By promoting the universality and preserving the integrity of the Rome Statute, we seek to ensure an efficient, independent and credible functioning of the *

Director General for Legal Affairs, Ministry for Foreign Affairs of Finland. A shortened version of this presentation was delivered at the conference, The International Criminal Court and the Responsibility to Protect: Synergies and Tensions, held in Helsinki 3-4 December 2010.

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Court. This enhances – at least indirectly – the principle of R2P, which basically aims at preventing mass atrocities. Finland’s vision when negotiating the Rome Statute was that a strong ICC would assist in preventing the most serious crimes from happening – which is also the aim of R2P. When we look ahead, the importance of co-operation between the ICC and states should be highlighted, because it is a crucial factor for the Court’s success and efficiency. Co-operation with the ICC means, among other things, the execution of arrest warrants issued by the Court as well as supporting its work and advocating its independence. Innovations in this respect would undeniably be welcome. In addition, it is important to stress assisting the Court by other means. In this context, it may be noted that Finland has recently concluded an Agreement on the Enforcement of Sentences with the Court. However, also in this field the Court will need assistance by a wider group of States, as we have learnt from experience with the International Criminal Tribunal for the former Yugoslavia. In speaking about synergies between the ICC and the concept of R2P, one obvious hub is the Rule of Law. The ICC, for its part, strengthens the Rule of Law through the principle of complementarity, which is a cornerstone of the Rome Statute. Enhancing the readiness of states to meet their obligations to investigate and to prosecute under the Statute is of utmost importance. There is a lively ongoing debate on positive complementarity, which demonstrates that states should be actively supported in building their capabilities. At the stocktaking debate on complementarity at the Kampala Review conference it was recognized that there is a need for practical steps to be taken to ensure that states have the necessary tools to assume their responsibilities stemming from the Rome Statute. At a retreat discussion organized by the International Center for Transitional Justice and the United Nations Rule of Law Unit in October 2010, the purpose was to build on the momentum created at Kampala to explore how to implement the concept of complementarity. One of the most important messages of the debate was the recognition that the pursuit of criminal justice for serious crimes can in fact enhance the development of the Rule of Law in general. Another important message was that in determining what kind of ICC assistance is best suited for a particular situation, it was noted that a ‘one-size-fits-all’ model is not applicable: responses to assistance requests received from national authorities are largely determined by the specific nature of the request. The retreat also discussed the close relationship between unwillingness and inability to investigate and prosecute under particular circumstances: the provision of technical assistance may be able to alter the nature and strength of political resistance and offer support to national officials who are willing to fulfill their responsibilities. In this regard, the work of the Coalition for the International Criminal Court (CICC) in assisting states to ratify the Rome

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Statute and helping states to meet their obligations stemming from the Statute should be noted. To support this work Finland has funded, for example, the CICC’s capacity-building efforts in Africa. These efforts are in line with the principle of R2P insofar as the international community should assist states to protect their citizens from mass atrocities. Efforts to assist states in meeting their ICC obligations will also serve this purpose. Another initiative worth mentioning is the Justice Rapid Response (JRR) mechanism, which is a multilateral stand-by facility aiming to rapidly deploy professionals of criminal justice (and related fields) trained for international investigations. The mechanism enhances the Rule of Law in a concrete manner by building national capacities to investigate and to prosecute. One important element for any national investigation or prosecution to be successful and to meet the standards set by the Rome Statute system is to be able to provide safety for victims and witnesses. In fact, a professional and functioning witness protection system is an essential part of any judicial system, yet it receives less attention than for example the training of judges or other similar capacity building measures. We have therefore highlighted the need to raise the visibility of this item in the context of complementarity. In this connection we have to acknowledge that the sector of witness protection is rather underdeveloped also in Finland. The stocktaking exercise on international criminal justice in Kampala offered us some concrete guidance for the way ahead. A very essential element of the legitimacy of the criminal justice system is the perspective of the victims of international crimes. Finland and Chile acted as co-focal points for the topic ‘Impact of the Rome Statute system on victims and affected communities’ at the stocktaking segment of the Kampala Conference. For the ICC to fulfill its mandate, it is important to pay attention to the situation of victims and to ensure that their voices will be heard. We have chosen to contribute to this work through the ICC Trust Fund for Victims. The protection of victims is also at the heart of R2P, albeit from a different perspective. When turning to this principle it is fair to note that Finland’s profile on R2P has not been as visible as with the ICC. However, Finland was a strong advocate for the inclusion of R2P in the 2005 World Summit Outcome Document. In a national context, the then rather fresh concept of R2P was referred to when drafting in 2005 new legislation on the participation of Finland in military crisis management. A reference to supporting humanitarian assistance operations and protection of civilian populations in the scope of application of the Act under preparation was justified, inter alia, with the aim to strengthen the Responsibility to Protect at the international level. The Government bill to the Parliament referred, in particular, to the Secretary-General’s Report ‘In Larger Freedom’ and the World Summit Outcome Document.

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Finland has also welcomed the continuing discussions on R2P at the United Nations. Finland warmly welcomed the report of the Secretary-General and his Special Adviser, professor Luck, and fully supported their approach in framing the concept. The formal debate in the General Assembly on implementing R2P was rather constructive. The General Assembly also adopted by consensus the first stand-alone resolution on R2P. These kinds of gradual steps are necessary in consolidating support for and a common understanding of the concept. The Global Centre for the Responsibility to Protect and the International Coalition for the R2P have carried out important work in this field. This kind of grass-roots activity is essential in transforming R2P from principle into practice. During this conference, Kenya has been mentioned as a situation where R2P worked in practice and where the ICC has also come to play a role. On the other hand, in the case of Sudan, the implementation of R2P has proven much more difficult despite the continuous civilian casualties in Darfur, South Sudan and the border areas. Numerous special envoys and mediators have been dispatched and multiple peace processes have been initiated to end the conflict in Darfur. In addition, arms embargos, travel bans, asset freezes and economic sanctions have been imposed against Sudan. Finally, the United Nations Security Council referred the situation in Sudan to the ICC in 2005. All indicted individuals have remained at large. Sudan is a prime example of the inherent fragility of both the ICC and R2P. Neither will be able to function without the co-operation of states. Unwillingness of states to co-operate, then again, is a very complex question of its own. As we look into the future, we should continue our efforts to consolidate the political support for both the ICC and R2P. Another example where the ICC and R2P may act in parallel is the situation in Guinea where the violent events of 2009 amounted, according to the United Nations Commission of Inquiry, to crimes against humanity. In order to prevent future mass atrocities in Guinea, calls have been made by the international community, including Secretary-General Ban Ki-moon, and NGOs to uphold R2P. The ICC has opened a preliminary inquiry into the events and the government’s response to them. These examples illustrate the delicate nature of R2P and how the concept is deeply embedded in political conflict. They also illustrate the interplay between R2P, with its focus on preventive efforts, and the ICC, which by its nature comes into play once international crimes are suspected to have been committed. The location of the ICC Review Conference has been questioned due to the fact that ICC investigations are being carried out in Uganda. This concern was raised of course already before the conference. It was, however, opportune in any case to arrange the conference in the African continent. As in the case of R2P, it

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is also important that African countries gain a feeling of ownership with regard to the Court, as it takes decisions that are so relevant to the countries in question. I would like to end this presentation with a positive note, which is based on my personal perspective on the recent evolution of the international criminal justice system. A permanent international criminal court was largely regarded as a utopia some 20 years ago, including by myself. The tremendous effort of negotiating the Rome Statute was, however, carried out. I do not suggest that the ICC of today is perfect, but I am of the view that we are better off with the ICC than without it. I would rather continue discussing what could be done to remedy the perceived deficiencies than to prepare for the Court’s funeral as has been suggested. Further developments of the ICC are possible. R2P is a very different concept, but I would like to believe that the same applies to it as well.

ICC, R2P, and the International Community’s Evolving Interventionist Toolkit Frédéric Mégret* AbstrAct: This article provides a sketch of R2P and the ICC as practices of power rather than simply as normative projects purporting to constrain power. It will show the deep natural complementarity between the agenda of international criminal justice and that of international interventionism illustrated by R2P; second, it will reflect on the degree to which these purportedly ‘reformist’ agendas have a tendency to gravitate towards established sources of power; third, it will argue that it is states and the Security Council that emerge all the stronger as a result of the interplay of the R2P and the ICC. The article is meant as a study in the plasticity of ideas, their importance in shaping agendas even when not strictly binding, and their sometimes neglected implications with power and violence. Keywords: International Criminal Court, Responsibility to Protect, International Criminal Law, Intervention

1. Introduction Both the ICC and R2P as projects share classic features of idealism: a willingness to put word above fact; a strong principled and deontological push; an insistence over the desirable rather than the merely achievable. They are culminations of a tradition of vibrant international norm entrepreneurship, which they contribute to update in an age of globalization and cosmopolitan human rights,1 and which involves a mixture of convincing, nudging and shaming some of the powers that be into apparently accepting something that they may otherwise not have accepted. They also have their root in some of the most momentous international legal developments of the times. They are, for example, at the avant garde of a * 1.

Associate-Professor at the Faculty of Law, McGill University, and the Canada Resarch Chair on the Law of Human Rights and Legal Pluralism. I would like to express my gratitude to Anne Lagerwall for some helpful and pointed comments. See Ramesh Thakur and Thomas G. Weiss, ‘R2P: From Idea to Norm – and Action?’, 1 Global Responsibility to Protect (2009) 22-53 (describing R2P as ‘the most dramatic normative development of our time’).

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movement that seeks to endow states with positive as opposed to negative obligations. States are not only required to simply refrain from interfering with the affairs of other states, but to actively uphold the laws of war, prosecute or extradite individuals suspected of atrocities, and rescue peoples in danger. In this they are also part of a movement of endowing an amorphous ‘international community’ with a sort of immanent subjecthood. Both also share a darker side.2 Both are inseparable from old interrogations about the legitimacy of interfering in the affairs of other states and the suspicion that all intervention3 is unidirectional, inconsistent or biased. Both share a certain fascination with violence, either the violence that is in the criminal law or the violence that is in intervention. They vie for the legitimate control of this violence if only to claim that atrocities should ultimately be confronted with violence. Both moreover have in common that they are quite single mindedly focused on the idea that certain international crimes are the worst thing that can happen to the international system, and that highly unusual solutions are warranted to deal with them. In this they are obsessed with political violence, as opposed to the manifold ways in which violence operates in the world and at the risk of doing violence.4 Finally, they are also, each in its own way, highly technocratic projects (rich with their assemblies, commissions, special advisers, etc.), imagining a world in which international elites are heavily involved in the prevention of atrocities through a mix of lobbying, ‘lawyering’, and bombing. In this they also always run the risk of confiscating grass roots initiative and abusively speaking in the name of others.5 This article will seek to provide a sketch of R2P and the ICC as practices of power rather than simply as normative projects purporting to constrain power which they are commonly presented to be. First, it will show the deep natural complementarity between the agenda of international criminal justice and that of international interventionism illustrated by R2P, and how the two must be understood as mutually dependent and constituted; second, it will reflect on the degree to which these purportedly ‘reformist’ agendas have a tendency to gravitate towards established sources of power, be they states or the Security Council; third, it will argue that it is states and the Security Council that emerge all the 2. 3. 4. 5.

For an attempt to develop a critique of that darker side in relation to the ICC, see Frédéric Mégret, ‘Three Dangers for the International Criminal Court: A Critical Look at a Consensual Project’, 13 Finnish Yearbook of International Law (2002) 195-247. In this article I will use the term ‘intervention’ to designate not only armed intervention, but any foreign or international policy leading to substantial involvement (and possibly interference) in the affairs of states. Intervention can be civilian, as contemplated by R2P. Hilary Charlesworth, ‘International Law: A Discipline of Crisis’, 65 The Modern Law Review (2002) 377-392. Frédéric Mégret, ‘Beyond the “Salvation Paradigm”: Responsibility to Protect (Others) V. the Power of Protecting Oneself ’, 40 Security Dialogue (2009) 575-595.

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stronger as a result of the interplay of the R2P and the ICC. The article is meant as a study in the plasticity of ideas, their importance in shaping agendas even when they are not strictly binding, and their sometimes neglected implications with power and violence.

2. ICC and R2P: Mutual Convergence This section will seek to understand both the ICC and R2P as initiatives of ‘norm entrepreneurship’ in the international arena.6 Viewing both as resulting from such entrepreneurship avoids the sort of idealization that has too often resulted from international legal scholarship, where the ‘international community’ is presented (in its wisdom, typically) as having ‘adopted’ certain mechanisms. This begs the question of why it adopted such mechanisms when it did and why. Seeing international law itself as a form of norm entrepreneurship, rather than a sort of natural, functional or endogenous development, highlights the fact that international law is constructed by certain ideas, and that these ideas do not ‘float freely.’ Instead, they are embedded in a number of constituencies which, at any point in time, may see the promotion of certain ideas as worthwhile. Moreover, the element of ‘norm entrepreneurship’ in international law also makes it possible to understand international legal developments as the result both of competition and alliances between different actors as well as, inevitably, strategic thinking and drive for power (understood here as the ability to influence the international agenda). The background against this sort of norm entrepreneurship unfolds can be summed up briefly. First, a world of tantalizing possibilities opened up by the 6.

For similar approaches in relation to the ICC see Caroline Fehl, ‘Explaining the International Criminal Court: A “Practice Test” for Rationalist and Constructivist Approaches’, 10 European Journal of International Relations (2004) 357-394; Martin L. P. Groenleer and Louise G. van Schaik, ‘United We Stand? The European Union’s International Actorness in the Cases of the International Criminal Court and the Kyoto Protocol’, 45 Journal of Common Market Studies (2007) 969-998; Darren Hawkins, ‘Explaining Costly International Institutions: Persuasion and Enforceable Human Rights Norms’, 48 International Studies Quarterly (2004) 779-804; Benjamin N. Schiff, Building the International Criminal Court (Cambridge University Press, 2008). In relation to R2P, see Otto F. von Feigenblatt, ‘International Policymaking: The Case of the Norm of the Responsibility to Protect’, 11 Entelequia: Revista Interdisciplinar (2010) 267-272; Jutta Brunnee and Stephen J. Toope, ‘Norms, Institutions and UN Reform: The Responsibility to Protect’, 2 Journal of International Law & International Relations (2005) 121-140; Ramesh Thakur and Thomas G. Weiss, ‘R2P: From Idea to Normand Action?’, 1 Global Responsibility to Protect (2009) 22-53; Noha Shawki, ‘Responsibility to Protect: The Evolution of an International Norm’, 3 Global Responsibility to Protect (2011) 172-196; Bastian Loges, ‘A Norm in the Making? The Emergence of the “Responsibility to Protect” (R2P) and UN Security Council Deliberations’, paper prepared for the presentation at the SGIR 7th Pan-European International Relations Conference: Stockholm, September 9-11, 2010; Christine Kennedy, Norm Entrepreneurship: Canada’s Tips to Tipping, unpublished MA thesis (McGill University, 2008).

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end of the Cold War, rich with the promise of a reinvigorated international law, a domination of liberal states, not to mention a bloated military complex with time on its hands and a mandate to be reinvented (for example NATO). In a context of renewed violence, this world is increasingly tempted to define itself in terms of its ability to avoid the commission of certain atrocities. Second, those tantalizing possibilities then create a considerable degree of anxiety about the potential of international law, about its actuality and its effectiveness. Having invested much in its ability to avert mass international crimes, international law is precipitated in existential crises each and every time (and there are many) that this promise seems to have turned out vacuous. Third, a perception of a deep transformation of the international stage as a result of a general decline of the state, making way for forms of supranational organization and creating unprecedented opportunities for intervention and the reinvention of sovereignty. It is against this background that norm entrepreneurship about the ICC and R2P unfold. Behind each are, more broadly, what might be described as ‘movements’ purporting to promote certain ‘projects’. By movement, I mean a loose assortment of international or internationally minded actors coalescing around a set of goals and seeking to harness political energies and good will to achieve these goals.7 A ‘project’ in such a context is a set of objectives more or less coherently unifying the ‘movement’ and which may impose ideational or conceptual limitations of its own. A ‘movement’ is not meant as a grouping that is entirely homogeneous in its composition, but one that over time shares core goals, and is committed to elucidate strategic priorities from within the movement. The ‘ICC movement’8 and the ‘R2P movement’9 have some differences, but also have 7.

8.

9.

I use the term, I believe, in the sense that David Kennedy uses it, although Kennedy himself never quite defines what he means by a ‘movement’. See D. Kennedy, ‘International Human Rights Movement: Part of the Problem?’, 15 Harvard Human Rights Journal (2002) 101-125. For a critique of that lack of definition, see Hilary Charlesworth, ‘Author! Author! A Response to David Kennedy’, 15 Harvard Human Rights Journal (2002) 127-131. The term is often used loosely in the legal literature on the ICC. See for example James Crawford, ‘International Law and the Rule of Law’, 24 Adelaide Law Review (2003) 3-12; Saul Mendlovitz and John Fousek, ‘Enforcing the Law on Genocide’, 21 Alternatives: Global, Local, Political (1996) 237-258; Carrie LaSeur, ‘Implementing the Rome Statute: The Australian Experience’, 1 Eyes on the ICC (2004) 233-250; Daniel B. Pickard, ‘Proposed Sentencing Guidelines for the International Criminal Court’, 20 Loyola of Los Angeles International & Comparative Law Journal (1997-1998) 123-164; Luc Reydams, ‘A la guerre comme à la guerre: Patterns of Armed Conflict, Humanitarian Law Responses and New Challenges’, 88 International Review of the Red Cross (2006) 729-756. Again, the expression is regularly used in the literature. See Jurgen Brauer and Robert Haywood, ‘Non-state Sovereign Entrepreneurs and Non-territorial Sovereign Organizations’, UNUWIDER Working Paper, 2010/09; David Mickler, ‘Book review of Mahmood Mamdani’s Saviors and Survivors: Darfur, Politics, and the War on Terror’, 2 Global Responsibility to Protect (2010) 331-333; Hugo Slim, ‘Values Versus Power: Responsible Sovereignty as Struggle in Zimbabwe’, 2 Global Responsibility to Protect (2010) 155-160.

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strong similarities born from a certain mimetism. Both are focused on a core of individual entrepreneurs and big civil society actors (major human rights INGOs in particular), that seek to forge alliances with international organizations and some state administrations. The ICC movement is the older of the two. The idea was for a long time incarnated by a few isolated academic or intellectual figures – such as M. Cherif Bassiouni and Benjamin B. Ferencz – but became the basis for a sizeable movement in the 1990s that coalesced under the broad Coalition for the International Criminal Court banner (Human Rights Watch and Amnesty International, the Radical Party, the World Federalist Movement), and a renewed academic/intellectual/professional commitment (in the form of experts, learned societies and journals for example).10 The R2P movement began in a somewhat more elitist way. The idea was initially more the preserve of foreign policy wonks and international technocrats and its adoption owed much to traditional diplomacy efforts. Nonetheless, it has, if belatedly, spurred the emergence of an International Coalition for the R2P11 modelled on that supporting the ICC, that includes many of the same INGOs (the steering committee features the World Federalist Movement, Human Rights Watch and Oxfam International), and which is very active in invoking R2P in particular cases. This section will emphasize how certain fundamental assumptions about the ICC and R2P shape the sort of norm entrepreneurship that can be embarked upon on their behalf. The fundamental overlap between the ICC and R2P is their single-minded focus on the aversion of ‘atrocity crimes’,12 namely genocide, crimes against humanity and war crimes. These crimes must be prevented as a matter of urgent moral and legal obligation, and both R2P and the ICC are means towards that end. As practices of power one might say that their specificity lies in their being technologies of ‘designation of victims’, by which is meant ‘legitimate’ victims.13 In the peculiar conditions of an increasingly politically integrated world where the use of force is less and less the exclusive preserve of state-to-state relations, the ability to designate ‘legitimate victims’ has become crucial to interference in the affairs of states and, occasionally, to 10. Heather Schoenfeld, Ron Levi and John Hagan, ‘Crises extrêmes et institutionnalisation du droit pénal international’, 36 Critique Internationale (2007) 37-54. 11. The precise name of the coalition is ‘International Coalition for the Responsibility to Protect’ (ICRtoP), see at (visited 21 September 2011). 12. David Scheffer, ‘Genocide and Atrocity Crimes’, 1 Genocide Studies and Prevention (2006) 229-250. 13. This is not the place to explore in detail how these technologies work but in the case of the ICC, its vulnerability to referrals ensures that the designation of ‘victims’ remains in ‘safe hands’ from the point of view of traditional political considerations, at least given a record of relatively pliant prosecutors not keen on majorly upsetting global power balances. It is less clear who decides who is a legitimate victim under R2P, although the UN and the Security Council in particular clearly have the high hand on that process.

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the unleashing of force.14 Its corollary is of course the stigmatization, ostracization and ultimately exposure to international intervention of those states that have been found to produce ‘victims’. The ICC and R2P are crucial cogs in this process, which they help to depoliticize as seemingly the application of legal formula or the product of moral lucidity. At the heart of the rapprochement between the ICC and R2P movements lies more than a marriage of circumstance. Both are arguably part of a common broad strategy by the international community. They are highly complementary because each arguably has in store for the other what it is missing. The ICC has the ability to highlight victims in a more or less incontrovertible way, but has little ability to then fundamentally modify the circumstances on the ground and needs to dispel the suspicion that its operations are dangerous for the very populations it is meant to protect; R2P designates victims with less clear authority and needs to find further support in other sources, but has the means to trigger a sizeable intervention, whether diplomatic, political or military.

2.2. The ICC The ICC is a project of repression which increasingly finds it hard to be its own end and must fit into a broader narrative to legitimize itself. Although the appetite for international criminal repression for its own sake is in some quarters quite considerable, international criminal justice is also a project that has come under a steady flow of criticism. Some of this criticism is relatively superficial and the sort that the ICC can overcome: for example, international criminal tribunals are presented as too slow, too formal or too expensive. A deeper set of criticisms, however, challenges the extent to which international criminal tribunals are as beneficial for the international order as their proponents claim them to be, even were they to function properly. It may be tempting for some proponents of international criminal justice to assume that ‘justice has no price’ and should be pursued regardless of the costs. Yet the international legal order is one where it is very difficult to make such absolutist claims convincingly given the range of alternative possibilities.15 Following a period where international criminal justice was defended on more metaphysical (justice is a categorical imperative) or strictly legal grounds (crimes should be punished because this is the law), it has resolutely entered an era where the pragmatics of punishment (this is what punishing crimes will achieve) are more consciously put at the forefront.16 This has put it on a risky path, however, 14. This is very similar to a point made by Mahmood Mamdani in ‘The Politics of Naming: Genocide, Civil War, Insurgency’, 29 London Review of Books (2007) 5-8. 15. Adam M. Smith, After Genocide: Bringing the Devil to Justice (Prometheus Books: Amherst, New York, 2009). 16. Most characteristic of this school is Payam Akhavan. See his ‘Are International Criminal

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as cases soon emerged where the rigid pursuit of international criminal justice may well clash with some of its underlying objectives. For example, a strong suspicion has emerged in some cases that international criminal justice has precipitated renewed violence on the short term by ensuring that tyrants had nothing to lose or, more realistically, making peace negotiations more difficult as a result of the sidelining of key diplomatic interlocutors, all at a steep price. This is a critique that was already made in the context of the former-Yugoslavia and has been consistently made in the context of the ICC’s own work in Sudan and Uganda for example. It is a particularly stinging critique – call it the critique of ‘morbid justice’, a justice suspected of adding cadavers to the already existing mountains – for a movement that prides itself in above all protecting people.17 Moreover, there is a sense in which international criminal tribunals have either come too late or even been created as a substitute for what might have been more resolute action to fend off atrocities (most notably in the case of the Former-Yugoslavia),18 in effect reinforcing a trend in which judicial cognizance of world events supplants strong political engagement.19 It is thus vital for the project of international criminal justice to dispel any suspicion that it proceeds at the cost of some harm to the very people it is supposed to save. One strategy is to add a list of supplementary benefits that international criminal justice is supposed to bring beyond the rather narrow goal of putting people behind bars: peace-making, truth, reconciliation, satisfaction of victims etc.20 However, these goals are somewhat ephemeral, their overabundance may create confusion,21 and they at any rate mostly deal with past events. The big prize no doubt would be if international criminal justice were to save lives, or at least be

17.

18.

19.

20. 21.

Tribunals a Disincentive to Peace? Reconciling Judicial Romanticism with Political Realism’, 31 Human Rights Quarterly (2009) 624-654. In addition to the larger claim that over time international criminal justice will avert genocide, crimes against humanity and war crimes, international criminal tribunals have increasingly been recast as real-time deterrent. See Louis Arbour, ‘The Crucial Years’, 2 Journal of International Criminal Justice (2004) 396-402 at 398. This has in turn triggered a fresh round of scepticism. See Simon Chesterman, ‘No Justice without Peace? International Criminal Court and the Decision to Prosecute’, in Simon Chesterman (ed.), Civilians in War (Lynne Rienner Publishers: Boulder/London, 2001) 145-163 at 149 (pointing out that the establishment of the ICTY was seen by some commentators as an attempt ‘to achieve through law what the international community was not prepared to achieve through force’). Martin Mennecke, ‘Punishing Genocidaires: A Deterrent Effect or Not?’, 8 Human Rights Review (2007) 319-339; Andrea Paulus, ‘Between Incapacity and Indispensability: The United Nations and International Order in the 21st Century’, in Russell A. Miller and Rebecca M. Bratspies (eds), Progress in International Law (Brill: Leiden, 2008) 289-314. Richard J. Goldstone, ‘Justice as a Tool for Peace-Making: Truth Commissions and International Criminal Tribunals’, 28 New York University Journal of International Law & Politics (19951996) 485-503. Mirjan Damaska, ‘What Is the Point of International Criminal Justice?’, 83 Chicago-Kent Law Review (2008) 329-347.

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seen as instrumental in doing so (and certainly not be seen as contributing to loss of life).22 This explains partly the temptation of bringing the idea of international criminal repression in closer association with a broad atrocity-avoiding agenda, such as R2P, that is more specifically geared towards that goal. Indeed, far from claiming a space entirely of their own and proceeding stubbornly with prosecutions whatever the costs, as is sometimes feared in the ‘peace v. justice’ debate, there is every reason to think that key practitioners of international criminal justice have increasingly internalized the need of relevance to ensure that their work does not lead to more shedding of blood. This is particularly apparent in the way the relationship of international criminal justice to peace processes has been conceptualized, even though international prosecutors may loathe to admit that they have responsibilities in that respect. This was already evident in the case of the ad hoc international criminal tribunals that were, after all, created by the Security Council to remedy breaches of international peace and security; but it has also become quite evident for the ICC whose mandate and source of legitimacy is less evidently instrumental.23 In effect, international criminal tribunals, despite awareness of their limitations,24 are increasingly seen as one leg of the international community’s 22. This issue has become crucial now that the ICC is operating simultaneously to some of the events over which it has jurisdiction. For example, the organization ‘Save Darfur’ has been encouraging the Court actively to prosecute those accused of genocide in Sudan in an effort to deter them. The ability to save lives is often presented as exceeding the scope of what tribunals can achieve on their own, but nonetheless something to which they should aspire and indirectly contribute. See Payam Akhavan, ‘Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?’, 95 American Journal of International Law (2001) 7-31 (at 9 noting that ‘[h]astily erected bulwarks cannot be expected to save lives when the deluge has already begun’ but that ‘the focus of punishment should be the prevention of such deliberately induced aberrant contexts, within which habitually lawful social relations degenerate into unrestrained violence’). See also David J. Scheffer, ‘Challenges Confronting International Justice Issues’, 4 New England International and Comparative Law Annual (1998) 1-6 at 6 (‘the need to establish such a court reflects the darker vision of our future. It assumes that atrocities will continue to be the norm and require judicial responses. Nonetheless, an effective and efficient permanent criminal court should help deter the commission of these heinous crimes and thus save lives’). 23. Commentators have increasingly voiced concerns that one should not go without the other. See Rosanna Lipscomb, ‘Restructuring the ICC Framework to Advance Transitional Justice: A Search for a Permanent Solution in Sudan’, 106 Columbia Law Review (2006) 182-212; Louise Parrott, ‘The Role of the International Criminal Court in Uganda: Ensuring That the Pursuit of Justice Does Not Come at the Price of Peace’, 1 Australian Journal of Peace Studies (2006) 8-29; Charles Villa-Vicencio, ‘Why Perpetrators Should Not Always Be Prosecuted: Where the International Criminal Court and Truth Commissions Meet’, 49 Emory Law Journal (2000) 205-222. 24. International criminal tribunals have typically denied that they should have an immediate, deliberate role in terms of peace making, although peace may result indirectly from their activities. See (‘[the] matter of international peace and security is not the responsibility of the Prosecutor; it falls within the mandate of other institutions’). However, the ‘interests of justice’ part of the

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multi-pronged conflict management strategy or ‘protection continuum’,25 rather than as a justice endeavour operating in a vacuum and blind to its real world consequences.26 For example, Louise Arbour, as Chief Prosecutor of the ICTY, arguably engaged in a sophisticated game of international statecraft by deciding to indict Karadžić and Mladić but not Milošević before the Dayton negotiations, thus contributing to marginalize the leaders most tainted with violence whilst not excluding the most useful, and in the process helping to bring about the Dayton agreement.27 The Prosecutor subsequently made an application for an indictment against Milosevic within weeks of the outset of the Kosovo campaign, in what was widely seen as a move that could have a real time impact. More explicitly, although he has certainly fallen short of saying that he would prioritize the search for peace, ICC Prosecutor Moreno Ocampo has made no secret of his desire to engage in international prosecutorial policies that, within the broad horizon of R2P, minimize the disruption to alternative (but nonetheless objectively competing) mediation efforts.28 In this context, references to R2P are a relatively cost-free part of the ICC’s quest for legitimacy; they make international criminal justice seem less like a solitary and quixotic practice and more like a responsible partner in something bigger and more conventionally political.29 At the same time, the development of a

25. 26. 27. 28.

29.

Prosecutor’s discretion is commonly considered to include attention to what might be some of the immediate side-effects of a case. Clearly, it would be hard to argue that resumption or intensification of hostilities, if they are predictable as a result of an indictment, would be in the interest of victims for whom justice is brought. See Kai Ambos, ‘The Legal Framework of Transitional Justice: A Systematic Study with a Special Focus on the Role of the ICC’, in Kai Ambos, Judith Large and Marieke Wierda (eds), Building a Future on Peace and Justice: Studies on Transitional Justice, Conflict Resolution and Development: the Nuremberg Declaration on Peace and Justice (Springer: Berlin/Heidelberg, 2009)19-103; Jens David Ohlin, ‘Peace, Security, and Prosecutorial Discretion’, in Carsten Stahn and Göran Sluiter (eds), The Emerging Practice of the International Criminal Court (Leiden: Martinus Nijhoff Publishers, 2009) 185-208. According to Ohlin, when operating as a result of a Security Council referral, the Prosecutor’s discretion is seriously limited and he should seek to maximize international peace and security. Maria Banda, The Responsibility to Protect: Moving the Agenda Forward (United Nations Association in Canada: Ottawa, 2007) 26. On the inevitability of political considerations in exercising prosecutorial discretion, see Luc Côté, ‘Reflections on the Exercise of Prosecutorial Discretion in International Criminal Law’, 3 Journal of International Criminal Justice (2005) 162-186 at 170-171. Of course, this is always justified by the fact that indictments were ready in one case and not in another, but at the very least this was very opportune diplomatically. For example in relation to Uganda Ocampo claims that as long as negotiations were ongoing with the Lord’s Resistance Army to find an exit to the conflict he ensured that his office’s investigations kept a low profile. See Luis Moreno Ocampo, ‘The Responsibility to Protect: Engaging America’, Keynote Address at the conference The Responsibility to Protect: A Strategy for Engaging America, held in Chicago November 15-17 2006, see at . If nothing else, international criminal tribunals know that they can benefit tremendously,

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strong R2P concept also ironically relieves the ICC of some of the pressure that might otherwise bear upon it in terms of averting atrocities, by clearly flagging this as a responsibility of the larger UN system. Some of the strategic affinities of the ICC with R2P go further. There is great value in a certain overlap of goals, beyond the portrayal of international criminal justice as not inimical to peace and security. The invocation of R2P can help facilitate the operation of international criminal justice in several ways. For example, once a situation is constructed in terms of R2P internationally, it already in a sense points to the commission or quasi-commission of international crimes, thus creating an environment that is politically more hospitable to prosecutions.30 As I will go on to show, the ICC is supposed to do the same job for R2P, but that does not prevent – quite the contrary – some mutual support.31 Moreover, a strong R2P agenda may very well help create the conditions needed for international criminal justice to operate comfortably. There is an overlap between R2P’s insistence that states enforce the rule of law, and the ICC’s reliance on domestic courts doing their job to repress atrocity crimes. International community involvement under R2P may step up the pressure on states to cooperate with the Court, particularly in the arrest of suspects. In the case of a military intervention, it may even create optimal conditions: a situation where the ICC can operate at will because the regime that was responsible for the crimes has been removed. All these considerations, then, go to explain why R2P is in a sense such a boon for the promotion of the model of international criminal justice, providing it with a certain contextual legitimacy even as it relieves it of some of the pressure to perform in terms of atrocity prevention, and helping set the stage for its deployment in more ways than one.

2.3. R2P The starting point for an idea such as R2P32 is very different but nonetheless also one that requires the help of outside ideas and that converges towards the idea of international criminal justice. An extremely broad scenario of international in their investigations, from peace having been re-established in the territories under their jurisdiction so that there is also a more vested interest in R2P running its course. 30. For example in the case of Darfur there is no doubt that the Security Council’s creation of a Commission of Inquiry whose terms of reference were clearly influenced by R2P laid the ground for the referral to the ICC and its legitimacy in launching investigations in the region. See International Commission of Inquiry on Darfur, Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General Pursuant to Security Council Resolution 1564 of 18 September 2004, 25 January 2005. 31. In practice who will first cast the suspicion of international crimes – whether the UN acting under R2P or the ICC – matters little. Most of the time, one will follow the other quite quickly. 32. Unless otherwise mentioned, when referring to R2P I will have in mind R2P as it was formally

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community involvement is envisaged,33 in a context where legitimate fears exist about the potential of legitimate intervention to turn into illegitimate interference. The challenge after Srebrenica, Rwanda and Kosovo is to retain some of the urgency of the humanitarian appeal whilst grounding the international community’s response in some incontrovertible ground that does not render it vulnerable to the accusation that it is licensing imperialism and neo-colonialism, not to mention undoing the global regime on the use of force. The challenge for R2P, in other words, has always been to establish a threshold for international community involvement that is not accused of being too low or too high. At one end of the spectrum, strictly ‘humanitarian’ interventions, i.e. designed to rescue populations in need for example after humanitarian catastrophes (or even from the consequences of climate change) unacceptably lower the threshold and raise the spectre of dissolution of the idea of R2P.34 ‘Humanitarian’ interventions in the endorsed by the General Assembly in 2005. See World Summit Outcome, A/60/355, 15 September 2005, paras 138-139). That concept was then endorsed by the Security Council (SC Res. 1674, 28 April 2006), and further developed by the Secretary General (in Implementing the Responsibility to Protect: Report of the Secretary-General, UN Doc. A/63/677, 12 January 2009). Having said that, it remains difficult to entirely separate the version of R2P that emerges at the UN from 2005 onwards from the many debates that went on before it. See especially International Commission on Intervention and State Sovereignty, The Responsibility to Protect (International Development Research Centre: Ottawa, 2001). 33. For example, even in its relatively dampened down World-Summit Outcome version, R2P emphasises the need for ‘appropriate diplomatic, humanitarian and other peaceful means’ (at para. 139), something which is then understood by the Secretary General (see Implementing the Responsibility to Protect, supra note 32) as legitimizing a broad ‘international assistance and capacity building’ program. Even though these peaceful modes of intervention are typically less emphasized in R2P commentary, there is no doubt that they strongly reinforce the case for involvement in the affairs of states. In addition, the UN pledges itself to ‘collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate’ (World Summit Outcome, para. 139), something that clearly keeps the military option open. 34. After the Nargys cyclone, Bernard Kouchner, the then French foreign minister sought to have the Security Council adopt a resolution based on R2P allowing forceful action to rescue victims of the cyclone. The project was rejected by the Council, the Secretary General, and has almost universally been criticized since by commentators as wrongheaded. See e.g. Ashley McLachlan-Bent and John Langmore, ‘A Crime against Humanity? Implications and Prospects of the Responsibility to Protect in the Wake of Cyclone Nargis’, 3 Global Responsibility to Protect (2011) 37-60; Gareth Evans, ‘The Responsibility to Protect in Environmental Emergencies’, 103 Proceedings of the 103rd Annual Meeting of the American Society of International Law (2009) 27-32; Joanna Harrington, ‘R2P and Natural Disasters’, in W. Andy Knight and Frazer Egerton (eds), Routledge Handbook of the Responsibility to Protect (Routledge: London, forthcoming 2012); Ramesh Thakur, ‘Should the UN invoke the “Responsibility to Protect”?’, The Globe & Mail, 8 May 2008. For a moderately supportive view, see Roberta Cohen, ‘The Burma Cyclone and the Responsibility to Protect’, 1 Global Responsibility to Protect (2009) 253-257.

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sense of ‘ensuring respect for humanitarian law’ have long been rebuffed by key humanitarian actors such as the ICRC, horrified that their humanitarian mandate might be used to justify more use of force,35 for example through a hyper-extensive interpretation of Common Article 1 to the Geneva Conventions.36 Broad interventions in favour of human rights also seem a recipe for undue meddling in the affairs of states given the absence of an agreed upon criterion for even massive or systematic human rights violations.37 Finally, the idea that interventions can be engaged in propping up democracy seems to have been destined only to a short life in the early 1990s.38 Conversely, international criminal justice is supposed to provide a reasonably incontrovertible39 as well as emotionally strong basis for deciding on international community involvement, whether peaceful or military. The international criminal law regime over the span of the last decades has constructed the closest thing to an international taboo. It can count on the powerfully mobilizing force of any appeal to the fear of a repeat of the Holocaust and assorted crimes, however dubious,40 especially in an age of ubiquitous global media. It should therefore come as no surprise that R2P’s triggers (genocide, crimes against humanity and war crimes) coincide almost perfectly with the so-called ‘core crimes’ of the ICC’s jurisdiction.41 The operation of 35. Anne Ryniker, ‘The ICRC’s Position on “Humanitarian Intervention”’, 83 International Review of the Red Cross (2001) 527-532. 36. Frits Kalshoven, ‘The Undertaking to Respect and Ensure Respect in All Circumstances: From Tiny Seed to Ripening Fruit’, 2 Yearbook of International Humanitarian Law (1999) 3-61. 37. Richard B. Lillich, ‘Forcible Self-Help by States to Protect Human Rights’, 53 Iowa Law Review (1967-1968) 325-351. 38. The idea had some popularity following the UN operation in Haiti to restore President Aristide. Thomas M. Franck, ‘The Emerging Right to Democratic Governance’, 86 The American Journal of International Law (1992) 46-91. Framed in such broad terms the idea has certainly attracted much reservation from international lawyers. See Richard Falk, ‘The Haiti Intervention: A Dangerous World Order Precedent for the United Nations’, 36 Harvard International Law Journal (1995) 341-358. It is notable that even in the context of the NATO assistance to Libyan insurgent forces, the pro-democracy element remained very much muted in UN discourse as a basis for military support of the rebels. 39. Although there are some who find that the delimitation of what crimes should trigger R2P could be narrower and more specific. David J. Scheffer, ‘Atrocity Crimes Framing the Responsibility to Protect’, 40 Case Western Reserve Journal of International Law (2008) 111-135. 40. Michael C. Desch, ‘The Myth of Abandonment: The Use and Abuse of the Holocaust Analogy’, 15 Security Studies (2006) 106-145. 41. I say almost perfectly because R2P is also triggered when ‘ethnic cleansing’ is committed. Why ethnic cleansing was added when it is most likely to be covered by the existing crimes is a bit of a mystery. It may be that the drafters wanted to keep the option of invoking R2P in cases very much like those of international crimes, but where that element had not been quite formally established yet. At any rate, the practice of R2P so far seems to have focused largely on the existing crimes. See, e.g. the report of the Commission on Darfur, which reduces ethnic cleansing to the crime against humanity of forced displacement.

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international criminal justice, crucially, serves to appease anxieties about the inherent political-ness of international involvement. First, international criminal justice constructs a binary world of perpetrators and victims, each entirely irreducible to the other.42 It thus foregrounds the problem of evil and individual agency and backgrounds the role of political projects (e.g. nationalism) and some cardinal concepts of the international order (e.g. sovereignty), structural forces, victim implication in some atrocities, or the international community’s own role in bringing about their commission.43 Second, international involvement on the basis of R2P is presented as a fundamental moral or legal duty as opposed to a difficult and inherently contestable political choice. International criminal justice helps to foreground issues of moral obligation, identity, and faithfulness to certain ideals even as it backgrounds more fraught issues such as the achievability of the goals, adequacy of means, possible ulterior motives of the interveners, local perceptions and demands, historical repetition, etc. Intervention is no longer political, but is presented as the fulfilling of an obligation imposed, as it were, from outside: ‘we have no choice but to intervene.’ The convergence of law and morality makes for a command that is unusually imperious. Third, international criminal justice is pathos-producing, and thus an effective ally in obtaining public support. In invoking and legitimizing the figure of the ‘victim’, it helps reconstruct intervention not as something decided and imposed from outside, but as very much demanded from within, by a martyr population.44 Finally, the notion that a crime is about to happen or already happening fosters a sense of emergency that is particularly conducive to pushing the frontiers of intervention, dismissing doubts as finessing and lack of political courage, etc. Finally, there are other more discreet ways in which the ICC project might be said to be helpful to R2P. R2P debates have a clear origin in a perceived need to 42. Such is the strength of this image that international criminal tribunals have found it at times exceedingly difficult to judge both sides of a historical episode of violence. For example, the International Criminal Tribunal for Rwanda (hereinafter ICTR) famously never indicted anyone from the Rwandan Patriotic Front despite evidence of war crimes. 43. Frédéric Mégret, ‘Joinder, Fairness and the Goals of International Criminal Justice’, in Timothy William Waters (ed.), The Milošević Trial: An Autopsy (Oxford University Press, forthcoming 2011). 44. As Ramesh Thakur puts it, ‘Where “humanitarian intervention” raises fears of domination based on the international power hierarchy, the responsibility to protect encapsulates the element of international solidarity. It implies an evaluation of the issues from the point of view of those seeking or needing support, rather than from that of potential interveners. It refocuses the international searchlight back on the duty to protect the villager from murder, the woman from rape and the child from starvation and being orphaned.’ Ramesh Thakur, ‘Iraq and the Responsibility to Protect’, 62 Behind the Headlines (2004) 1-16. The focuses on the raped woman and the child soldier, in particular, have served as powerful tropes historically to justify intervention.

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move beyond the strictures of the old ‘humanitarian intervention’ debate, which is seen as strongly associated with Great Power politics and an urge to use force. Critiques have claimed, harshly perhaps, that R2P is only an effort at cosmetically recycling such debates. To counteract such criticism, the R2P movement crucially needs to develop a strong program of measures designed to prevent the commission of atrocities. In this context, domestic criminal justice is specifically designated in several R2P sources as one of the key planks in the effort to prevent atrocities, and the ICC given a key role in encouraging domestic court systems to enforce the rule of law (a role which, moreover, it is keen to exercise for its own reasons via ‘positive complementarity’).45 Here the temporal and causal relationship between the ICC and R2P is inverted: the Court is no longer just the trigger of R2P or its concluding stage, but part of an early effort of prevention of crimes (and thus the circle is closed since each prosecution sealing an episode of past atrocities is also seen as an investment in the avoidance of future ones). It thus becomes an essential part of R2P’s effort to cast itself as a much broader and more civilian concept than ‘humanitarian intervention’.

3. The Irresistible Attraction of Power The ICC and R2P discourses, in addition to showing a strong mutual complementarity and even dependency, also share a tendency to gravitate towards the very power that they are supposed to constrain. In that, they illustrate not only the practical difficulties of change in the international legal order but also at a deeper level their affinity with the idea of power itself. Both the ICC and R2P begin as discourses challenging power, particularly sovereign power, in both its internal and external dimensions. As such, they privilege a heroic discourse of moral responsibility and appeals to justice against the corruption of politics. Yet without the credible backing of force, international human rights and humanitarian obligations are presented as weak, as entirely reliant on traditional modes of implementation that are unsuited for the task. Hence the ICC and R2P projects soon find themselves obsessed with the need to enlist power for their cause not only in the sense of needing immediate patrons for the purposes of having certain ideas endorsed, but because these ideas themselves depend on power to be implemented on the long term. The irony of the R2P and the ICC movements, then, is a tremendous tendency to reinforce that which they claim to transcend, sovereign states on the one hand, and the Security Council on the other.

45. Implementing the Responsibility to Protect, supra note 32, paras 18-19.

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3.1. Gravitating Towards the Sovereign Both the ICC and R2P are, conspicuously, part of the evolving international social construction of sovereignty.46 In that, they are of course less novel than a discourse that contrasts yesterday’s ‘absolute sovereignty’ with today’s ‘relative sovereignty’. The debate over sovereignty has always arisen at the interface of the permissible and the impermissible. The idea of ‘sovereignty as responsibility’, or that sovereignty does not provide a blanket immunity to engage in wanton acts of violence, are all very much part of the historical baggage of the idea.47 As such they are liable to evolutions but also remarkably stable on the long run. Nonetheless, within that debate, both R2P and the ICC appear to be on the utopian end of ‘the sovereignty spectrum’ and can thus at least claim to be part of a cyclical reaffirmation of the ‘obligation-side’ of sovereignty. Sovereignty is seen from outside as not being its own foundation but as answerable to something above it. This is what justifies a discourse of intervention, whether judicial, political or military. Both R2P and the ICC, in their own ways, are part of projects to tame or civilize the power incarnated by sovereignty on the basis of a vigorous cosmopolitan outlook that emphasizes the transcendent and universal character of obligations owed to human beings.48 In that respect, the ICC stresses the relative character of sovereignty by insisting that certain crimes are by nature international and therefore the responsibility of the entire community. This is despite the fact they may not involve anything particularly international in the sense of trans-border and may have occurred entirely within the domestic sphere. Moreover, international crimes are crimes committed exclusively by individuals, reducing the sovereign to a mere formal envelope, whose specific agency is almost secondary and, increasingly, does not even provide the temporary respite of immunities. R2P, for its part, emphasizes the relative character of sovereignty by insisting on the positive responsibilities 46. In this, I take my cue from the work of Reus-Smit, which is highly compelling on that point. Christian Reus-Smit, ‘Human Rights and the Social Construction of Sovereignty’, 27 Review of International Studies (2001) 519-538. 47. J. Samuel Barkin, ‘The Evolution of the Constitution of Sovereignty and the Emergence of Human Rights Norms’, 27 Millenium: Journal of International Studies (1998) 229-252. 48. Note that this ‘transformationist’ presentation of the projects is often common to both proponents and detractors. For examples of the former, see Jackson Nyamuya Maogoto, State Sovereignty and International Criminal Law: Versailles to Rome (Transnational Publishers: Ardsley, New York, 2003). For examples of the latter, see Guy Roberts, ‘Assault on Sovereignty: The Clear and Present Danger of the New International Criminal Court’, 17 American University International Law Review (2001) 35-77; Kristafer Ailslieger, ‘Why the United States Should Be Wary of the International Criminal Court: Concerns Over Sovereignty and Constitutional Guarantees’, 39 Washburn Law Journal (1999) 80-105; David A. Nill, ‘National Sovereignty: Must It Be Sacrificed to the International Criminal Court’, 14 Brigham Young University Journal of Public Law (1999) 119-150.

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it entails in the domestic sphere, and the ability of the international community to act as the ultimate guarantor that these responsibilities are taken seriously. By the same token, the ICC and R2P are ultimately projects that are highly embedded – perhaps more than their proponents would like to concede – in the fabric of sovereignty. This is of course for the practical and well-known reason that they are highly dependent on the good will of sovereigns. Whatever the power of civil society (e.g. the coalition for an ICC, now matched by an R2P coalition on the same model) or international elites (the International Law Commission, the International Commission on Intervention and State Sovereignty), it is axiomatic that the goal is always to ratify the project into the structures of international law. Whether through a diplomatic conference and a treaty (ICC) or a General Assembly session and resolution (R2P), the need is to obtain some form of sovereign consent, which alone can make a normative commitment to protection meaningful. Moreover, both the ICC and R2P make high demands on sovereigns to remain sustainable normative projects long after the point of ratification. The ICC is the only institution of the two, but it is an institution with feet of clay, that needs state cooperation (of both immediately concerned and third states) at almost every corner. International criminal tribunals before it have ignored or provoked key states at their peril. The implementation of R2P is also constantly reliant on exhorting states to comply with their commitments. States’ support has to be kept alive constantly by a mixture of shaming, cajoling and more or less vacuous threatening. More than simply needing states, the projects have in practice shown a remarkable and even paradoxical deference to sovereignty that reflects a much deeper intellectual dependence on the concept. This is evident, for example, in the ICC Prosecutor’s apparent fascination for the ‘low hanging fruits’ that are state ‘self-referrals’. In fact, with the single exception of Kenya, Moreno Ocampo has resisted using his more radical proprio motu power, a power that allows him in theory to launch investigations out of his own initiative. Instead he launched his key investigations in cases – Uganda, Congo – that had been conveniently forwarded to him by those same states. This was all the more intriguing given that the proprio motu powers had been hailed a great achievement in Rome, and that few had anticipated the possibility of ‘self-referrals’. In fact, such is the allure of state referrals to the Prosecutor that he has actively sought them out from relevant states. Some will no doubt see this as a symptom of lack of judicial vision, while others will point to the shrewdness of prioritizing cases that have a high chance of success, and the sheer legitimacy of prosecuting cases that have a significant measure of sovereign backing. Although there is less practice when it comes to R2P, efforts to work through states to achieve protection are real, and rely on the need for a powerful reinforce-

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ment of core state functions to prevent atrocities. The World Summit Outcome insists that ‘the international community should, as appropriate, encourage and help States to exercise [R2P]’.49 An entire ‘pillar’ of the Secretary General’s strategy to implement R2P, possibly the most important one, is devoted to such action, working with and for Governments with a view to ‘capacity-building’ (or, as Ramesh Thakur put it, ‘capacity, capacity and capacity that strengthen sovereignty and help state authorities to exercise it more responsibly’).50 The Secretary General goes as far as to suggest that help ‘could encompass military assistance to beleaguered States dealing with armed non-state actors threatening both the State and its population’.51 Neither the ICC nor R2P are in any profound theoretical way against sovereignty. The battle is much better understood as one over the continued definition of sovereignty (one as old as sovereignty itself which, needless to say, never had an immutable meaning) rather than a frontal challenge to it. In that respect, it also constitutes a subtle reaffirmation of the legitimacy of sovereignty – in a way that, incidentally, makes portrayal of the Court as an affront to sovereignty seem oddly out of touch with reality.52 The redefinition exercise proceeds in very much the same terms in both cases. The ICC is to have complementary jurisdiction, when states are ‘unwilling or unable’ to prosecute certain international crimes.53 Primary jurisdiction for international courts, as occurred with the ad hoc international tribunals, is presented as an abnormal exception justified only Security Council meddling. It is made quite clear that states have primary responsibility in terms of punishing international crimes over which they have jurisdiction, consonant with their international obligations. There is no shortage of arguments as to why this should be so, including those taken from the effectiveness of domestic criminal law, its proximity, the needs of transitional justice, or respect for sovereignty. Moreover, this implies that the Court should be involved in ‘positive complementarity’ efforts, positively encouraging and even assisting states in exercising their repressive powers. Similarly, R2P in the form it was adopted by the General Assembly, is the latest and most neutral distillation of a series of formulations that have moved from foregrounding the problem of international intervention to putting the issue of sovereign responsibilities (but also, inevitably, prerogatives) at the centre stage. 49. World Summit Outcome, supra note 32, para. 138. 50. Ramesh Thakur, Responsibility to Protect: First Do More Good than Harm, . 51. Implementing the Responsibility to Protect, supra note 32, para. 29. 52. Eric K. Leonard, ‘Discovering the New Face of Sovereignty: Complementarity and the International Criminal Court’, 27 New Political Science (2005) 87-104. 53. Rome Statute of the International Criminal Court, adopted 17 July 1998, UN Doc. A/ CONF.183/9, UNTS No. 38544, in force 1 July 2002, Article 17.

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The primary holder of the responsibility to protect is the state.54 International community intervention, military or otherwise, is held up as very much a last resort when a state has failed abysmally. The threshold for international involvement is almost exactly the same as for the ICC.55 In many ways, R2P is an ode to sovereignty, understood as responsible power. The projects, in other words, are projects of making good sovereigns, a project as old as international law itself.56 The circumventing of the sovereignty of a few is based on their having not lived up to the exigencies of sovereignty; the legitimization of the sovereignty of others is based on their willingness to stand for a certain concept of sovereignty. This affinity with sovereignty easily explains the riddle of why so many apparently fully sovereign states have subscribed to both the ICC and R2P quite willingly, and makes fierce opponents of both on sovereignty grounds appear more than a little disconnected about what sovereignty actually entails.57 Some sovereigns no doubt emerge strongly validated from having successfully withstood the international scrutiny, and if anything the exercise reinforces a perilous dividing line between ‘good’ and ‘bad’ states.58 Nonetheless, what is remarkable is the extent to which states are merely asked – be it for the purposes of some higher international purpose – to do what they have always done and arguably done best historically: to assert their authority, to punish and repress, to exercise legitimate violence. The ICC and R2P are a contemporary take on an old international law idea, one hardly invented by late 20th Century utopians, that these powers be exercised benevolently and for the benefit of their populations. All in all, it is therefore perhaps not to claim too much to say that ICC and R2P, even as they are often presented above all as projects of taming sovereigns, are also projects of legitimizing and enabling at least some of them.59 Such are 54. See World Summit outcome, supra note 32, para. 138 (‘Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it’). 55. Ibid., para. 139 (the international community shall intervene more forcefully where ‘national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity’. My emphasis.). 56. Robert Cryer, ‘International Criminal Law vs State Sovereignty: Another Round?’, 16 European Journal of International Law (2005) 979-1000. 57. Douglas E. Edlin, ‘Anxiety of Sovereignty: Britain, the United States and the International Criminal Court’, 29 Boston College International & Comparative Law Review (2006) 1-22; John R. Worth, ‘Globalization and the Myth of Absolute National Sovereignty: Reconsidering the “Un-signing” of the Rome Statute and the Legacy of Senator Bricker’, 79 Indiana Law Journal (2004) 245-265. 58. Gerry J. Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (Cambridge University Press, 2004). 59. Eric K. Leonard, ‘Discovering the New Face of Sovereignty: Complementarity and the

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the understandable and of course not altogether surprising limits of reform in the international system.

3.2. Gravitating Towards the Security Council On one account at least, both R2P and international criminal justice stand as stark departures from a concept of global order based on international peace and security alone. The concept of international security is itself famously redefined as one of ‘human security’ the key foundations of which are peace, the rule of law, respect for human rights, the absence of impunity, and so on.60 Both R2P and the ICC strive to replace the casuistry of international politics with respect for hard principles. States shall not decimate their populations and if they do will expose themselves to a stern response from the international community. Ad hocism is presented as deeply antithetical to the rule of law rather than as a manifestation of appropriate political flexibility.61 The element of discretion is seemingly radically minimized in a context of appeals to categorical imperatives: there can be ‘no peace without justice’, amnesties are out as an option, all shall be prosecuted alike, and all atrocities must be stopped. Although the international criminal justice movement may acknowledge its debt to the Security Council in the 1990s, the creation of the ad hoc tribunals by the Council is seen as a pragmatic concession to reality but one ultimately unworthy of the ideals of justice. The ICC thus emerges ideal-typically as a permanent court with potentially universal jurisdiction and a Prosecutor with proprio motu powers of investigation, largely free from the sort of instrumentalization characteristic of ‘victors’ justice’. As to proponents of R2P, they similarly deplore that the history of humanitarian involvement to prevent or stop atrocities has been marred by selectivity and ad hocism. The R2P movement never quite makes it to making international involvement a legal obligation, but it certainly affirms a solemn duty to prevent or stop atrocities consistently, the idea being that intervention to prevent atrocities should never be held hostage to political games and calculations.62 International Criminal Court’, 27 New Political Science (2005) 87-104. For a recent exploration of this tendency of international law to be at its most sovereignty upholding when it claims to be at its most sovereignty transcending, see Frédéric Mégret, ‘Who’s in and Who’s Out? A propos de la protection internationale du monopole de l’exercice de la violence légitime et quelques autres attributs des monstres froids’, 24 Revue québécoise de droit international (2011, forthcoming). 60. Lloyd Axworthy, ‘Human Security and Global Governance: Putting People First’, 7 Global Governance (2001) 19-23. 61. Andrea Bianchi, ‘Ad Hocism and the Rule of Law’, 13 European Journal of International Law (2002) 263-272. 62. ‘Consistency’ is a key theme of the Secretary-General’s report on R2P. See Implementing the responsibility to protect, supra note 32, paras 2, 11, 31, 55, 57, and 62 (para. 62 states: ‘the credibility, authority and hence effectiveness of the United Nations in advancing the principles

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In this, both R2P and the ICC are seemingly part of a rejection of a realpolitics or even managerial approach to international peace and security, one that might be criticized as at best a manifestation of Great Power interest, and at worst a security and order exercise oblivious to the moral challenges involved. The Security Council is seen as initially focusing too much on a concept of security that minimizes issues of protection, rights and justice63 and, even more importantly, as too selective and discretionary a tool to be the reliable backbone of a principled policy,64 not to mention form the basis for an international rule of law.65 It is seen as corrupting of both the sanctity of international justice and the neutrality of humanitarian action. Moreover, the Council’s limited membership and close association with big powers makes it suspect not only of engaging in politics (which in itself is anathema to the ICC and, to a lesser extent, to R2P), but in the politics of a few states.66 It is both the limitations of the Council in terms of international criminal justice (ad hoc international criminal tribunals) and of rescuing populations (Kosovo) that precipitate the ICC and R2P projects. Both, however, find that they are congenially weak if they fail to enlist some element of centralized enforcement at the international level. The most practically successful international criminal tribunals, Nuremberg and Tokyo, were so because they were backed by an almost imperial show of force, in the form of Allied or American occupations of Germany and Japan. For all the discourse about the international criminal tribunals representing the international community, it is perhaps a little too easily forgotten to what extent almost all have profited from the backing of major powers. Under normal international conditions, such relative feats of judicial power as Nuremberg or even the ICTY cannot be easily replicated. The ICC is a court that only has jurisdiction over those states that have judged it propitious to submit to it. Although in practice this includes states that have committed international crimes, the biggest ‘offenders’ are likely to remain outside its purview. And although R2P makes much of the fact that it is primarily states that must do the work when it comes to protecting populations, there is little that cajoling can achieve when confronted with a state that is adamant that

63. 64.

65. 66.

relating to the responsibility to protect depend, in large part, on the consistency with which they are applied. This is particularly true when military force is used to enforce them.’) Elissa Golberg and Don Hubert, ‘Case Study: The Security Council and the Protection of Civilians’, in Rob McRae and Don Hubert (eds), Human Security and the New Diplomacy: Protecting People, Promoting Peace (McGill-Queen’s University Press, 2001) 223-230. For a classical presentation of the ‘humanitarian impulse’ as ‘the maximum to which the comunity of states can aspire’ see Thomas G. Weiss, ‘The Humanitarian Impulse’, in David Malone (ed.), The UN Security Council: From the Cold War to the 21st Century (Lynne Rienner Publishers: Boulder/London, 2004). Kenneth Manusama, The United Nations Security Council in the Post-cold War Era: Applying the Principle of Legality (Martinus Nijhoff Publishers, 2006). Jose Alvarez, ‘The Once and Future Security Council’, 18 The Washington Quarterly (1995) 3-20.

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its sovereignty protects it from international scrutiny and is committed to a path of atrocities. What can in a sense save the humanitarian aspiration from wishful thinking is that it is backed ultimately by the prospect of resolute international community intervention, if need be by force. Not even R2P’s tireless prose can mask the fact that its first (state responsibility) and second (international support of the state) pillars are of little avail if somewhere down the road the threat of something more powerful and overwhelming is not contemplated. Moreno Ocampo identified quite clearly in relation to both the ICC and R2P that ‘the power to act, enforcement, is our main common challenge.’67 As a result, both the ICC and R2P as, essentially, normative projects in search of powerful patrons, are tempted to come closer to the Security Council, the single most important international dispenser of legitimate violence. This is more than simply bowing to the reality of an externally imposed international politics; it is also certainly more than acknowledging the legal superiority of the Charter, the binding character on all of Chapter VII resolutions, and the need to find a space within the UN normative architecture: these are important matters in their own right but one would hesitate to describe them as causal. Rather, there is an element of conscious design in reaching out to and seeking to work with the Council that is a mix of realism and a subtle understanding that the ICC and R2P are also an aspiration to exercise power for certain positive ends. Neither however is in any position historically to ‘demand’ anything from the Council, so the effort is instead to work as norm entrepreneurs do, speaking the Council’s own language and trying to cajole the powers that be in an attempt to gain something from them without compromising too much of one’s essence. The Rome Statute, for example, engages in a complex trade off with the Council. It does recognize the power of the Council to defer investigations.68 That was a power that was probably never really its to recognize since the Council could have exercised it anyhow, but the gesture at least serves to project a vision of the ICC dealing with the Council at arm’s length. It is nonetheless a significant symbolic concession. It seems to recognize that the relationship between justice and peace is not as straightforward as presented by ICC proponents, since the Council may consider that it is in the interest of ‘international peace and security’ to suspend investigations (in other words, although it may be true that ‘there can be no peace without justice,’ there can also be much justice with very little peace).69 The rigidity of the demand for 67. Ocampo, ‘Engaging America’, supra note 28. 68. Rome Statute of the International Criminal Court, supra note 53, article 16. 69. The significance of the trade-offs involved as a challenge for policy is now clearly recognized, with an increasingly shared assumption that, although the ICC prosecutor may not be able to acknowledge such things openly, part of the responsibility for getting the right mix lies in him or her. See Nick Grono and Adam O’Brien, ‘Justice in Conflict? The ICC and Peace

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justice is thus toned down in advance in cases where to press for convictions too strongly might backfire (at least the ICC can blame deferral of investigations on the Council, rather than having to make such a decision itself as a fully responsible political actor). In this symbolic exchange, as it were, the ICC does get the tremendous potential backing of the Council referring situations to it.70 This is truly decisive for the Court as it potentially extends its jurisdiction beyond states parties, i.e. to those states which for good real political reasons (from their point of view) have opted to remain safely outside the arrangements of the Rome Statute. In effect, it promises a way to use power against power, to harness the power of the Council to put all states within theoretical reach at least of the Court. It comes as no surprise therefore that the ‘situations’ examined by the ICC that were most clearly directed at sovereigns against their will were the ones referred to the Court by the Council (Sudan and Libya). Needless to say, they were so referred to much civil society applauses. R2P also gives the Security Council a central role. Begun with the Kosovo episode as a debate about whether ‘coalitions of the willing’ should fly to the rescue of populations in danger even in the absence of Security Council authorization, the question is eventually fundamentally reframed after a decade of arm wringing as to how the Security Council should behave when dealing with situations involving atrocities.71 Superficially, the Council is ‘targeted’ for soft reform (permanent members, for example, are encouraged not to use their veto power in R2P situations), yet in practice R2P also solemnly validates its role, all the more so that ultimate intervention remains discretionary and largely submitted to the imperatives of international peace and security. This makes the Council’s willingness to intervene at least the symbolic linchpin of the whole cascading R2P logic. In the process of enlisting the Council’s support for their normative enterprises, the ICC’s aspiration to international criminal justice and R2P’s aspiration to the absoluteness of the humanitarian imperative, however, are both exposed as ultimately weak and dependent on the very sort of power whose limitations they condemn. The only way for the ICC to obtain jurisdiction over the cases that may matter most is through resort to the Security Council’s logic of exception, and its ultimate ability to designate who gets prosecuted and when. The Court thus ends up being highly subservient to the Security Council power logic that was supposed to be so lethal to the fundamental justice of international criminal justice. Indeed, the ICC Prosecutor has enthusiastically pursued every referral Processes’, in Nicholas Waddell and Phil Clark (eds), Courting Conflict? Justice, Peace and the ICC in Africa (Royal African Society: London, 2008) 13-20. 70. Rome Statute of the International Criminal Court, supra note 53, Article 13 (b). 71. This is quite clear in paragraph 129 of the World Summit Outcome (supra note 32) which effectively rules out any ‘coalition of the willing’ and which reinstates a strong sense of Council legality.

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sent to him by the Council, as shown for example by his very quick response in the Libya case, at the risk of appearing subservient to it.72 R2P for its part is an attempt to elevate the protection of certain populations above the vagaries of politics. Yet in its World Summit Outcome version it crystallizes both the fundamental legalism of the humanitarian impulse and the unease with an international order that would be driven primarily by a moral impulse. All decisions to intervene with force are to be taken by the Security Council and, save for a vague commitment by the Council to act in the spirit of R2P, hardly a dent has been made (and maybe none was ever meant to be made) into the fortress.

4. Who Gains? Of course, the process of enlisting the help of sovereigns or the Council is also one that is supposed to simultaneously rein them in. The ICC and R2P want to harness the power of the sovereign but for very particular, virtuous ends. In that respect, they are very much in tune with a long tradition of international law.73 R2P and to a lesser extent the ICC are part of an old line of projects to re-imagine the power of the Council as something less self-sufficient and that can be harnessed for some higher goal. In that aspiration to ‘civilize’ the Council they are evocative of endless debates about whether the Council is bound by international law’74 or even whether it should not have a more central role in enforcing international law (as opposed to simply pursuing a certain form of order).75 However, the attempt to instrumentalize the powers that be is one that is fraught with ambiguity. It is not clear, in particular, who is doing whose bidding. Both R2P and the ICC are not just powerful forces reshaping legitimate uses of violence – they are also constantly at risk of becoming instruments of that violence. The ICC has the potential to become a means for sovereigns to wield certain forms of power. For example, the working assumption during most of the genesis of the ICC project was the ‘impunity’ hypothesis, that is, the idea that in 72. Simon Jennings, ‘Playing Politics with the ICC’, 9 March 2011, available at (visited 22 September 2011). 73. Ethan A. Nadelmann, ‘Global Prohibition Regimes: The Evolution of Norms in International Society’, 44 International Organization (1990) 479-526. 74. Thomas M. Franck, ‘The “Powers of Appreciation’: Who Is the Ultimate Guardian of UN Legality?’, 86 The American Journal of International Law (1992) 519-523; Dapo Akande, ‘The International Court of Justice and the Security Council: Is There Room for Judicial Control of Decisions of the Political Organs of the United Nations?’, 46 International and Comparative Law Quarterly (1997) 309-343. 75. See e.g. Vera Gowlland-Debbas, ‘Security Council Enforcement Action and Issues of State Responsibility’, 43 International and Comparative Law Quarterly (1994) 55-98; Paul C. Szasz, ‘The Security Council Starts Legislating’, 96 The American Journal of International Law (2002) 901-905.

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certain key circumstances states would be crucially reluctant to use their criminal jurisdiction. Needless to say these cases exist, and the ICC structure is designed to address them. But aside from such cases, the history of transitional justice is also littered with cases where states have only been too happy to exercise their criminal powers, and have at times done so with a zeal that was a serious threat to due process. The ICC (and ad hoc international criminal tribunals before it)76 quite characteristically does very little to prevent these excesses, seeming to prefer almost any repressive policy to the prospect of impunity.77 It arguably gives a free rein in advance to robust repression, in ways that may be clearly in tension with the international criminal justice project’s own supposedly liberal ambitions. More importantly, it makes itself in advance complicit with states’ very traditional use of the criminal law to assert sovereignty and public order, instil a certain discipline, and construct grand judicial narratives that shape national projects (e.g. Eichmann in Jerusalem). The best illustration that the ICC is often not forcing states to do that which they do not want to do as much as providing them with an alternative way of doing what they want to do anyway, is the largely unforeseen (although hardly unforeseeable) case of state ‘self-referrals’. Although these could be seen as manifestations of welcome sovereign virtue, they typically evidence a willingness by some states to have the benefits of criminal prosecutions without the costs, or even more ominously to instrumentalize the international community to do their dirty work for them. It is remarkable that countries like Uganda have used their referrals to the Court as ways to deal with (however criminal) non-state actors. It is perhaps even more remarkable that the ICC Prosecutor has gladly obliged.78 Whereas the international criminal justice movement was once premised on ‘the anti-State worldview of jurists pursuing human rights through coercive global regimes’, some argue that it is now only natural that if non-state actors are ‘in a position to challenge and undermine the authority of States, often with cata76. The extent to which the engine of an international criminal justice based solely on the perceived danger of impunity could sputter when confronted with a reality that belied that hypothesis was dramatically illustrated in the 1990s by the ICTR. There, the international community was left seeking an impunity that was not there (Rwanda was fully committed to punishing the génocidaires and at any rate the Tribunal had more or less decided not to prosecute members of the new regime) whilst having very little to say on the conditions in which Rwanda carried out its own prosecutions. This is even though these conditions left much to be desired and were probably much more worrisome than the risk of impunity. 77. This has given rise to a so far inconclusive debate among international criminal lawyers. See Kevin Jon Heller, ‘The Shadow Side of Complementarity: The Effect of Article 17 of the Rome Statute on National Due Process’, 17 Criminal Law Forum (2006) 255-280; Gregory S. McNeal, ‘ICC Inability Determinations in Light of the Dujail Case’, 39 Case Western Reserve University Journal of International Law (2006-2007) 325-350. 78. For a strong critique, William A. Schabas, ‘Complementarity in Practice: Some Uncomplimentary Thoughts’, 19 Criminal Law Forum (2008) 5-33.

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strophic result’, then states may be ‘victims rather than villains’.79 International criminal justice is thus on a course to becoming a device to assist states that are too weak and whose authority is challenged by non-state actors. A similar scenario is quite evident with R2P, whose genesis reflected a deep scepticism about the legitimacy of sovereignty and the need to occasionally override it, but which may still end up being enthusiastically invoked by states seeking to better stigmatize and control certain non-state actors and attracted, for example, by the Secretary General’s hints of military assistance. Internationally, it is also apparent that it would be quite wrong to see R2P and the ICC as somehow ‘imposing their terms’ on a reluctant Security Council. The Council in many ways has been more than willing to endorse these new responsibilities precisely because it largely contributed to their popularization. In that respect, Kosovo is the tree that hides the forest, the one notable case where the Council did not rally around a humanitarian cause – but for reasons that had less to do with a wholesale rejection of the relevance of humanitarian concerns for intervention than their circumstantial clashing with considerations of high politics. Even in the case of Kosovo, a majority of Security Council permanent and temporary members supported an intervention. For the most part, it is worth noting that the 1990s and 2000s have been an absolutely receptive moment for humanitarian and justice concerns by the Council. This is a story that has been told elsewhere and thus need not be retold here.80 It began with the invocation of the threat to civilians to justify no-fly zones (Irak), and continued with the invocation of humanitarian crises to justify the mandate of certain peacekeeping operations (Somalia, Bosnia). It was marked by the invention of new methods to deal with threats to international peace and security such as the creation of international criminal tribunals. Characteristically, the resolution referring the Libyan situation to the ICC was adopted unanimously, despite three of the permanent members having serious misgivings about the Court (and despite not being parties to the Rome statute). This speaks to how dominant a certain humanitarian discourse has become before the Council. The 79. This thesis is expounded in Payam Akhavan, ‘Self-Referrals Before the International Criminal Court: Are States the Villains or the Victims of Atrocities?’, 21 Criminal Law Forum (2010) 103-120. See also Andreas Th. Müller and Ignaz Stegmiller, ‘Self-Referrals on Trial: From Panacea to Patient’, 8 Journal of International Criminal Justice (2010) 1267-1294. 80. See Mark R. Hutchinson, ‘Restoring Hope: UN Security Council Resolutions for Somalia and an Expanded Doctrine of Humanitarian Intervention’, 34 Harvard International Law Journal (1993) 624-640; Richard B. Lillich, ‘The Role of the UN Security Council in Protecting Human Rights in Crisis Situtations: UN Humanitarian Intervention in the Post-Cold War World’, 3 Tulane Journal of International and Comparative Law (1995) 1-18; Fernando R. Tesón, ‘Collective Humanitarian Intervention’, 17 Michigan Journal of International Law (1995-1996) 323-372; Sean D. Murphy, ‘The Security Council, Legitimacy, and the Concept of Collective Security after the Cold War’, 32 Columbia Journal of Transnational Law (19941995) 201-288.

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resort to a variety of humanitarian and human rights justifications for Security Council action must be read in the light of a post-Cold War world that was ripe with the hubris of a new sense of possibilities. It served to reinvigorate the concept of international peace and security and to update it beyond its canonical meaning focused on inter-state violence. The import of justice concerns for the Security Council in this context is quite evident. First, they obviously enrich the Council’s modes of interventions in complex conflicts. International criminal justice, in particular, can act as a powerful way to delegitimize heads of states that are seen as standing in the way of international peace and security. More generally, justice concerns have fundamentally helped the Council reframe its mandate in more thoroughly intrusive ways, beyond either the sort of collective action anticipated by the Charter (Korea, Iraq) or traditional peacekeeping operations. Intrusive UN policies had arguably existed throughout the Cold War as Secretariat practices,81 but the Council has helped make them more mainstream, alongside a more explicit licensing of violence in defence of humanity. The trend is very much one in which the Council is moving away from a strict understanding of collective security and reinventing itself as an occasional enforcer of international law. Although R2P is often criticized for being a weak standard, its influence in framing the international community’s response to Libya or to the Ivory Coast has already been discreet but unmistakable.82 The association with humanitarianism and judicialism has also powerfully helped reframe the legitimacy of the Council, not as an increasingly passé body dominated by the victors of the Second World War, but as being at the forefront of the defence of certain values. 81. See Anne Orford, International Authority and the Responsibility to Protect (Cambridge University Press, 2011). 82. Resolution 1970 referring the Libya situation to the ICC does not explicitly mention R2P but does unequivocally ‘recall the Libyan authorities’ responsibility to protect its population’. See SC Res. 1970, 26 February 2011. Moreover, as one author cogently remarked: ‘nonetheless, its flavour impregnates the decision. In referring the situation to the ICC, and thus sending a clear signal to unscrupulous leaders that their crimes will not go unpunished, the UN Security Council brings the responsibility to protect to the forefront of the battle to maintain international peace and security in the world.’ See Marianne Ducasse-Rogier, ‘Libya, the UN, the ICC and the Responsibility to Protect’, Clingendael Diplomatic Studies Programme CDSP | Publications, at (visited 21 September 2011). The same could be said of all subsequent SC resolutions which, although they may have avoided a reference to R2P out of deference to Russian or Chinese concerns, nonetheless essentially base the authorization to use force on an almost word for word repetition of R2P mantras (the need to protect civilians, the suspicion of crimes against humanity, the responsibility of the Libyan government, etc). On Ivory Coast, see SC Res. 1975, 30 March 2011 (invoking various forms of governmental responsibility in its Preamble, although not mentioning R2P as such). The leadup to UN and French intervention was also full of R2P invocations. See UN Press Release, UN Secretary-General’s Special Advisers on the Prevention of Genocide and the Responsibility to Protect on the Situation in Côte d’Ivoire, 29 December 2010.

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Indeed, the discourse of atrocities, whenever the Council decides to deploy it, is a powerful permissive force in justifying intervention, one that is increasingly effective at silencing dissent as a form of complicity with atrocities. Nor has this increased legitimacy for the Council come at the price of exacting demands on it. The Council can but is not obliged to either defer or refer situations to the ICC; it can freeze or accelerate the work of international criminal justice at will. In other words, it remains, fundamentally, the ultimate arbiter of the international criminal justice’s reach and temporality when matters of high politics are involved. It can do so, remarkably, even in cases where some of its members are not themselves parties to the Rome Statute and therefore get the benefits of instrumentalizing the Court without any of the exposure or obligations.83 Its power in cases where it refers a case comes close to the power of deciding who gets prosecuted in the sense that the referral of a situation is the most decisive – much more so in a sense than the later individualization of indictments by the Prosecutor.84 The Council can also but is not strictly obliged to act on R2P; when it does ‘as appropriate’ and ‘on a case by case basis’, it will be able to draw on all the rhetorical benefits that come from association with a ‘courageous’ stance on behalf of mankind; when it fails to do so, it will always be able to invoke the fact that R2P is more guiding thread than legal obligation,85 and reassert the primacy of classical international peace and security, which are prerequisites to atrocity prevention anyhow. Moreover, the Council is helped by a pliant international prosecutor who is very keen to respond positively to referrals if that means, in his own words, that ‘the International Criminal Court could add legitimacy to the Security Council’s decision to apply the Responsibility to Protect concept.’86 The net effect seems to be that it is, ultimately, the Council that emerges as the crucial arbiter in designating who is a ‘legitimate victim’, and whose mission is successfully rebranded from one based on order and security to being the ultimate guarantor of the survival of the innocent, without conceding anything in terms of its composition or its discretion.

83. This is all the more so that both in Sudan and Libya specific exemptions from jurisdiction were drafted to exclude non-Sudanese and non-Libyan nationals of non-states parties from the Court’s reach. 84. It is a power, moreover, that is not constrained by any of the normal liberal constraints on the criminal trial since no actual individual is involved. Hence the Security Council can deplore a ‘genocide’ or ‘crimes against humanity’ in a way that is bound to have some influence on international judicial institutions work, but without any of the constraints that come with judicial determinations. 85. See Office of the President of the General Assembly, Concept note on the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity, UN Doc. A/63/958, Annex (9 September 2009). 86. Ocampo, ‘Engaging America’, supra note 28.

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5. Concluding Thoughts Discourse on R2P and the ICC is a mixture of millenarian hubris about achievements and potential on the one hand, and constant mortification and hand wringing about the limitations put in their way on the other. In fact, the paradox is that R2P and the ICC are both weak and powerful, and not necessarily for the reasons or in the way that is often thought. The convergence of the ICC and R2P agendas before the Security Council suggests a much stronger degree of normative entrenchment of evolving ideas about sovereignty and international authority than each would indicate separately. As a result of these combined moves, international community involvement is able to appear as endowed with all virtues: humanitarian in the old sense, crime preventing in the new sense, and international peace and security fostering. There is no reason to think, though, that this overlap will significantly change practices; rather its emergence is probably a sure sign that practices have already very significantly changed. This runs against the general consensus that both independently and certainly in conjunction the ICC and R2P are fundamentally international legal order-altering moves, of almost revolutionary proportions. Instead, there is a sense that the effect of these moves is first and foremost to re-inscribe the centrality of the state, at the expense, for example, of any more radical critique of the role of sovereignty in producing violence: the degree, for example, to which genocide, war crimes and crimes against humanity are not just pathologies of the state system but also arguably very much contained within it; the degree to which the response to all of the above is itself inscribed in violence, be it that of the criminal law or of armed intervention. Moreover, alone and in conjunction, the ICC and R2P reinforce the centrality and exceptionality of the Security Council by updating its mandate, giving it a gloss of legitimacy and leaving it as the ultimate arbiter of international politics. Rather than fearing that R2P and the ICC will create new possibilities of ‘political’ abuse, the concern should be that they will make it even more difficult to unmask power logics at work in the Council. In essence, R2P and the ICC can also be seen as having a role in ‘softening’ targets for the Council through increased stigmatization. Perhaps the genius of R2P (and to a lesser extent the ICC) is that it makes appear as a duty that the international community might reluctantly but heroically occasionally endorse, that which the Council has been only too happy to do when it suited it. In this context also, the discourse of radical innovation in the Council’s mission can and should be contrasted with the reality of the inertia of Council reform when it comes to its composition and modus operandi. Indeed if these evolving new normative alignments raise one fear it is not that there will be a dearth of interventions, but that the hydraulic pressure of international criminal justice, combined with a very broad mandate to discipline

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sovereigns, and a Security Council on the lookout for ways to reinvent its mission will further entrench a very unequal mix of highly intrusive interventions in some cases (for example in Africa), and absolute inaction in other cases. In this context, there is a strong suspicion that the combined operation of the ICC and R2P makes it much easier for the international community to interfere in the affairs of some states and even go to war against them by providing a broad legal and moral cover for such action. By the time the pressure of international criminal justice and R2P have been brought to bear, there is always a risk that the ‘international community’ will corner itself and others into thinking (through the mass media, through endless repetition of the unfathomable consequences that would follow) into intervening. The danger in the end may not be that the powers that be not believe in the need of humanitarian intervention, but that they believe in it a little too readily. More insidious effects may be involved as the Council moves beyond international peace and security traditionally conceived. When the international community does intervene, the danger is that it will increasingly conceive itself as doing so primarily to ‘stop crime’, which may turn out to be a remarkably impoverishing way of seeing both the goals and potential negative effects of intervention. The strictly humanitarian vision implicit in traditional debates on humanitarian intervention made it tempting to reduce those who benefited from an international intervention to pure bodies in need, human ‘matter’ waiting to be rescued. The international community made no distinction based on whether those suffering were victims of a campaign of brutal war, a genocide or a tsunami. This turned out to be a mistake that the international community paid dearly for in the 1990s, when it fell for the belief that Bosnians were dying because of lack of food rather than at the hands of snipers., even though the latter was by far the better view In that respect, international criminal justice has had the significant effect of nudging the international community beyond a purely neutralist humanitarian stance and peacekeeping’s traditional emphasis on impartiality. It forces the Security Council to take into account the fact that there may indeed be differences in the moral standing of parties to conflicts. However, it does so in ways that are themselves deeply problematic. First, even more so than traditional humanitarianism, international criminal justice and R2P seem to rely on a concept of victimhood that denies victims any agency. Victims are always ‘pure’ victims rather than complex historical actors, not to mention themselves involved in some measure of wrongdoing. Although this is not an inevitable consequence of international criminal justice, in practice it does seem to be its consistent by-product. Paradoxically, it is almost as if what agency is not recognized in victims is then over-invested in those responsible for atrocities. The oppressors are presented hyper-agents, rational calculators, and cold-blooded killers. These combined pressures end up radically discounting the

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impact of political passions, cataclysmic events and massive political change. They portray the international community as merely exercising a police function against a few psychopaths, rather than as exerting some more fundamentally political pressure in the midst of profoundly historical events. The debilitating effect of international criminal justice on our representation of populations as nothing else than victims of the genocidal tyrant also fits nicely within R2P’s ‘wardship’ view of sovereignty. It is for the international community to step in to fill a ‘vacuum’ left by the defaulting state, rather than any local actor or fighting population since the latter are presumed to either not exist or be too compromised.87 The effects of such a reductionist view have already been felt in the limitations of the intervention in Libya in 2011, one which from the start had difficulty deciding between a view of the crisis as entailing primarily a humanitarian catastrophe, crimes committed by the tyrant, a threat of massive regional destabilization, or the political problem of succession in a very complex domestic environment. The perception that atrocities are being or are about to be committed powerfully increased pressures to intervene, and helped cement a fragile consensus, even among states normally lukewarm about the possibility, that Libyan sovereignty must be breached. The fact that intervention has been prompted by other factors as well, does not change the fact that R2P norms and ICC involvement have had a powerfully facilitative effect. However, some of the very factors that make the principle of an intervention popular in such a case, also significantly obscure how it should unfold and its real foundation. The international community seemed to move beyond strict humanitarianism (protect the population), towards international criminal justice enforcement (freeze Gaddafi’s assets, arrest him), but in ways that bore only a passing relation to facts on the ground (a revolution aimed at toppling a tyrannical regime). This hesitation was a by-product of the normative dilemmas that resulted from the conflation of peace, justice and humanitarianism. Populations were to be protected ‘from atrocities’ but in ways that excluded thinking about the origin of these atrocities except in the most succinct form (e.g. Gaddafi’s personal evil). The goal of the international intervention was then formally reduced to indefinitely preserving a sort of atrocity-free stalemate, even if that stalemate’s very indecisiveness ended up being a rampant cause of more violence. Yet as time passed on, it became clearer that what was going on in Libya had more to do with classic ‘regime change’ under another name, than the R2P/ICC agenda conveyed, and that the ability to move seamlessly from one semantic register to the next was reminiscent of other, remarkably less consensual, interventions. It is not hard to see how the confusion of moral sentiments and calculation, international peace and security and justice, creates many opportunities for more 87. Mégret, ‘Beyond the “Salvation Paradigm”’, supra note 5.

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brutal forms of interest to seep in. The danger is that the notion of international peace and security, which formed the basis of Security Council action for much of its first decades, will have been so broadened as to lose any residual analytic trenchancy and, with it, any residual ability to constrain the actions of those who control the levers of force.

Complementarity in Practice: Critical Lessons from the ICC for R2P Sarah M. H. Nouwen* AbstrAct: One is a court, the other a policy guideline, and yet, the International Criminal Court and the Responsibility to Protect share fundamental working premises and modes of operation. Among the similarities are the crimes involved; the secondary, or complementary, responsibility of the international actor; the responsibility of the international actor not amounting to a legal obligation, and the ‘pillars’ on which the ICC and R2P are built. By dint of these conceptual similarities, the first years of experience of the ICC could be instructive for the implementation of R2P. Three problematic consequences that the ICC has had in some of the countries in which it intervened could also be consequences of R2P: undermining the primary responsibility of the state; undermining the resilience of those it claims to protect; and, intensifying conflict. These are not merely results of implementation by a teething organisation; they stem from the design of the ICC, and, possibly, because of the similarities, R2P. Keywords: responsibility to protect, International Criminal Court, peace versus justice, law-politics, Uganda, Sudan

1. ICC-R2P Introduction ‘We need NATO, the EU and the ICC’, displaced persons in Kalma camp chant. It is December 2008: Darfurians, and the world, are awaiting the decision of the International Criminal Court (ICC) on the Prosecutor’s request for an arrest warrant for the Sudanese President. Mentioning NATO and the ICC as international institutions that could intervene to ameliorate their situation, these Darfurians may agree with the organisers of this conference: there is a link between the ICC and the Responsibility to Protect (R2P). This contribution argues that one of the links between the ICC and R2P is that they share fundamental working premises and modes of operation. On this basis, it develops the hypothesis that by dint of the conceptual similarities, the *

Sarah M. H. Nouwen is the Mayer Brown Research Fellow in Public International Law at Pembroke College and the Lauterpacht Centre for International Law, University of Cambridge.

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first years of experience of the ICC could be instructive for the implementation of R2P. It then illustrates how three problematic consequences that the ICC has had in countries in which it intervened could also be consequences of R2P. The argument concludes that these are not merely results of implementation by a teething organisation; they stem from the design of the ICC, and, possibly, because of the similarities, R2P. Before this argument is elaborated, a few clarifications are called for. First, the argument is based on lessons from field research in Uganda and Sudan, but does not claim that these lessons apply in both countries or for that matter anywhere else in the world. The impact of the ICC and R2P are context specific. Secondly, when it is argued that the ICC or R2P have ‘caused’ something, it is acknowledged that in social science generally and in conflict situations in particular, causality is better described in terms of complexity theory than in Newtonian physics.1 For the sake of brevity and clarity, only the outcome of the analysis is presented; intervening variables have been taken into account but are not discussed.

2. ICC-R2P: Conceptual Similarities and Differences Four conceptual similarities between the ICC and R2P stand out. First, the crimes that trigger R2P and that are within the ICC’s jurisdiction are almost entirely the same: genocide, crimes against humanity and war crimes (R2P is also concerned with ethnic cleansing). Secondly, both the ICC and the concept of R2P entail a secondary, or complementary, responsibility of the international order: the right to intervene is dependent on states not doing something. Thirdly, the responsible international actor – in the case of the Rome Statute, the ICC, and in the case of R2P, the broader international community and ultimately the Security Council – is not under a legal duty to act; the duty is at most a (non-legal) responsibility.2 Finally, the ‘pillars’ of R2P, as described by the UN Secretary-General,3 overlap to a large extent with the modus operandi 1. 2.

3.

See Mark Duffield, Global Governance and the New Wars: The Merging of Development and Security (Zed Books: New York, 2001) at 9. The Rome Statute creates no legal obligation on the ICC Prosecutor to investigate and prosecute. Article 53 of the Statute can be read as leaving little discretion for the Prosecutor, but in practice he has huge discretion due to, for instance, resource constraints. See Rome Statute of the International Criminal Court, adopted 17 July 1998, UN Doc. A/CONF.183/9, UNTS No. 38544, in force 1 July 2002, Art. 53. R2P lacks the precision to be a legal obligation. Moreover, there is insufficient practice and opinio juris for it to be customary international law. States have purposefully referred to R2P as a ‘responsibility’ as opposed to an ‘obligation’. See also Carsten Stahn, ‘Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?’, 101 American Journal of International Law (2007) 99-120. Implementing the responsibility to protect, Report of the Secretary-General, UN Doc. A/63/677 (12 January 2009).

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of the ICC. The first pillar, according to which the state has the primary responsibility to protect, can also be discerned in the Rome Statute’s principle of complementarity: it is only when no state genuinely investigates or prosecutes that the ICC may step in. Pillar II, the international community’s responsibility to help states with exercising their responsibility, is absent in the Rome Statute. Nonetheless, without clear legal basis in the Statute, the Prosecutor has developed a policy of ‘positive complementarity’, which encapsulates a similar idea.4 Pillar III concerns the responsibility to intervene. A difference between the ICC and R2P seems to lie in the manner in which the international order is to intervene. The ICC Statute’s emphasis is entirely on the instruments: investigating, prosecuting and trying, presumably with the aim of (contributing to) ending impunity. The Statute does not subject the instruments to a review on their effectiveness in achieving the aim of ending impunity. R2P, on the other hand, has no conceptually prescribed method. R2P can be implemented by a wide range of instruments: diplomatic, economic, judicial, military or any other means. This open-endedness in terms of means makes R2P an ephemeral concept: a diplomatic code cable can be considered to implement R2P, as can full-fledged military intervention. It also makes R2P a moving target in any discussion: when R2P is criticised for being merely another name for humanitarian intervention, R2P advocates point to the myriad of other protective means as the feature that distinguishes R2P from humanitarian intervention. However, as the Secretary-General’s report acknowledges: ‘no strategy for fulfilling the responsibility to protect would be complete without the possibility of collective enforcement measures including through sanctions or coercive military

4.

According to the policy, the Office of the Prosecutor (OTP) ‘will encourage national proceedings wherever possible’ (Luis Moreno-Ocampo, ‘Statement to the Diplomatic Corps’, The Hague, 12 February 2004). Some OTP or OTP-supported documents have provided ideas for implementing the policy. Without going into details, they mention the OTP’s providing states with information received from public sources, with evidence (gathered by the Court), with advice regarding national proceedings and with training and technical support; acting as an intermediary between states, brokering assistance and facilitating situations where states may assist one another in carrying out national proceedings; promoting national proceedings, traditional mechanisms or other tools; and developing legal tools to facilitate cooperation and empower domestic criminal jurisdictions. See Luis Moreno-Ocampo, ‘Statement to the Assembly of States Parties to the Rome Statute of the International Criminal Court’ (New York, 22 April 2003); ICC-OTP, ‘Informal Expert Paper for the Office of the Prosecutor of the International Criminal Court: The Principle of Complementarity in Practice’ (December 2003); ICC-OTP, ‘Paper on Some Policy Issues before the Office of the Prosecutor’ (September 2003); ICC-OTP, ‘Annex to the Three Year Report and the Report on the Prosecutorial Strategy’ (2006); ICC-OTP, ‘Report on Prosecutorial Strategy’ (14 September 2006); ‘Report on the Activities performed During the First Three Years (June 2003 – June 2006)’ (12 September 2006).

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action in extreme cases.’5 If the concept of R2P is to have any distinctive feature it is the promise of coercive measures if everything else fails.6 Finally, a glaring and seemingly important difference between the ICC and R2P is that the first is an institution and the second has no institution particularly devoted to its implementation. This difference is real, but not as big as it seems. Even without one particular institution responsible for its implementation, R2P shares many of the organisational features of the ICC: both the ICC and R2P rely on ‘friends’, made up of the same states, and ‘coalitions’,7 founded by the same person and sharing a post box.8 The pillars of the ICC and R2P rest to a large extent on the same foundations. By dint of the strong conceptual similarities, the first years of experience of the ICC could be instructive for the implementation of R2P. Three problematic consequences that the ICC has had in states in which it has intervened could also be consequences of R2P.

3. Consequence 1: Undermining the Primary Responsibility of the State Pillar I of both the ICC and R2P consists of the primary responsibility of the state. The Rome Statute implies the primary responsibility of the state to investigate and prosecute the crimes within the Court’s jurisdiction by providing that the Court may exercise its jurisdiction only when no state investigates or prosecutes, or if it does, is unable or unwilling to do so genuinely. While the Rome Statute itself does not establish a legal obligation on states to investigate and prosecute,9 the idea of the ICC acting as a court of last resort and states’ bearing the primary responsibility for investigating and prosecuting (the crimes within the Rome Statute) fits the aim of combating impunity: national courts can prosecute more crimes than the ICC alone. 5. 6. 7. 8.

9.

Implementing the responsibility to protect, supra note 3, at para. 56. See also Alex de Waal, ‘R2P in Theory and Politics (1)’, 2009, . See and . Cf. (‘Contact us: CICC, c/o WFM, 708 3rd Avenue, 24th Floor, New York, NY 10017, USA’) and (‘Contact us: ICRtoP, c/o World Federalist Movement, 708 Third Avenue, 24th Floor, New York, NY 10017, USA’). The Statute’s only provision explicitly referring to such a duty is the sixth preambular recital, ‘recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’. See Rome Statute, supra note 2. However, considering the ordinary meaning of the provision’s text, the context and the treaty’s object and purpose, it is apparent that this recital does not create an obligation. See more elaborately, Sarah Nouwen, ‘Finetuning Complementarity’, in Bartram S. Brown (ed.), Research Handbook on International Criminal Law (Edward Elgar: Aldershot, Brookfield, 2011) 206-231 at 214-216.

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The very first situation that was referred to the Court, however, suggests that the ICC may actually undermine, rather than enforce, the primary responsibility of the state.10 In its letter referring the situation concerning the Lord’s Resistance Army (LRA) to the ICC, the Ugandan government explained that Uganda, ‘[h]aving exhausted every other means of bringing an end to this terrible suffering … now turn[ed] to the newly established ICC and its promise of global justice.’11 It emphasised that the Ugandan judicial system was ‘widely recognised as one of the most independent and impartial and competent on the African continent’. There was ‘no doubt that Ugandan courts have the capacity to give captured LRA leaders a fair and impartial trial’.12 Nonetheless, Uganda had referred the situation because: without international cooperation and assistance, it cannot succeed in arresting the members of the LRA leadership and others most responsible for [crimes against humanity]. Furthermore, Uganda is of the view that the scale and gravity of LRA crimes are such that they are a matter of concern to the international community as a whole. It is thus befitting both from a practical and moral viewpoint to entrust the investigation and prosecution of these crimes to the Prosecutor of the ICC.13

The ground of inability to arrest may justify the recourse to the ICC as international back-up mechanism14 (leaving aside the irony that the ICC relies on Uganda to execute its arrest warrants). However, if Uganda’s argument – that it is practically and morally befitting that international crimes are prosecuted by the ICC – is followed by other states, then the creation of the ICC has diminished the state’s primary responsibility to investigate and prosecute. ICC organs have not rebutted Uganda’s reasoning – on the contrary. Implementing a policy that is in sharp contrast to the announced policy of positive complementarity, the Prosecutor has encouraged states to refer situations to the Court.15 The judges, for their part, have not emphasised the state’s primary responsibility either; indeed, 10. This ‘undermining’ is not, of course, a legal violation of any kind. However, it goes against the grain of the idea of encouraging states to fulfil their primary responsibility. 11. Government of Uganda, ‘Referral of the Situation concerning the Lord’s Resistance Army Submitted by the Republic of Uganda’ (16 December 2003), on file with author, para. 6. 12. Ibid., para. 24. 13. Ibid., para. 25. 14. See Rome Statute, supra note 2, Art. 17(3). 15. In accordance with the policy of encouraging ‘self-referrals’, the Prosecutor encouraged states to refer to the Court situations concerning their own territory and nationals, stating that ‘[t] here may be cases where inaction by States is the appropriate course of action’ and arguing that the Court may have ‘superior evidence and expertise relating to that situation, making the Court the more effective forum’ (ICC-OTP, ‘Paper on Some Policy Issues before the Office of the Prosecutor’, September 2003, 5). More elaborately on self-referrals, see Sarah M.H. Nouwen and Wouter G. Werner, ‘The Law and Politics of Self-Referrals’, in Alette Smeulers (ed.), Collective Violence and International Criminal Justice: an Interdisciplinary Approach (Intersentia: Antwerp, 2010) 255-274.

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they have uncritically reiterated the Ugandan considerations.16 What’s more, in Katanga and Bemba they suggested that a state also fulfils its duty to investigate and prosecute by transferring a case to the ICC.17 The Assembly of States Parties, in turn, did not scorn Uganda for having outsourced its responsibility to the Court. Instead, Uganda was awarded with hosting the first Review Conference. In the words of a Ugandan government minister: The fact that Uganda was the state to give the Court its first situation is the reason that the Review Conference should be here. We deserve it.18

The Uganda situation reveals the normative paradox of the ICC’s complementarity principle: while complementarity accords states the primary right to investigate and prosecute, the creation of the ‘Rome System’, and particularly the way it has been implemented so far, has, by projecting the Court as an institution to take over from states the responsibility to investigate and prosecute, in fact undermined the expectation on states to discharge that responsibility.19 Seemingly without realising it, the Pre-Trial Chamber has recognised this paradox, presenting complementarity as a principle ‘reconciling the States’ persisting duty to exercise jurisdiction over international crimes with the establishment of a permanent international criminal court having competence over the same crimes.’20 By providing too ready a back-up, the Court diminishes the notion 16. Warrant of Arrest for Joseph Kony, Doc. no. ICC-02/04-01/05-53, Pre-Trial Chamber II, 8 July 2005 as amended on 27 September 2005, at para. 37; Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen, Doc. no. ICC-02/04-01/05-377, Pre-Trial Chamber II, Decision on the Admissibility of the Case under Article 19(1) of the Statute (10 March 2009), at para. 37. 17. Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Doc. no. ICC-01/04-01/07-1497, Appeals Chamber, Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case (25 September 2009), at para. 85 (‘there may be merit in the argument that the sovereign decision of a State to relinquish its jurisdiction in favour of the Court may well be seen as complying with the “duty to exercise [its] criminal jurisdiction”, as envisaged in the sixth paragraph of the Preamble’); Prosecutor v. Jean-Pierre Bemba Gombo, Doc. no. ICC-01/05-01/-8-962, Judgment on the Appeal of Mr Jean-Pierre Bemba Gombo against the Decision of Trial Chamber III of 24 June 2010 entitled ‘Decision on the Admissibility and Abuse of Process Challenges’ (19 October 2010), at para. 74. 18. Interview with a Ugandan Government Minister, Kampala, 7 October 2008. 19. This argument is developed in Sarah M.H. Nouwen, Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan (Cambridge University Press, 2012, forthcoming). 20. Prosecutor v. Joseph Kony et al., Decision on the Admissibility of the Case, supra note 16, at para. 34. See, similarly, Prosecutor v. Katanga and Chui, Judgment on the Appeal of Mr. Germain Katanga, supra note 17, at para. 85 (‘The Appeals Chamber acknowledges that States have a duty to exercise their criminal jurisdiction over international crimes. The Chamber must nevertheless stress that the complementarity principle, as enshrined in the Statute, strikes a balance between safeguarding the primacy of domestic proceedings vis-à-vis the International

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of the responsibility of the state and thereby breaches the first pillar of its own fundamental (and publicly declared) policy. Rather than a Court of Last Resort the court turns into a Court of Convenience. Does R2P run the same risk? A difference seems to be that R2P does not have to feed a hungry institution. But the rhetoric around R2P has been undermining the primary responsibility of the state in another way: by merging several concepts, ranging from preventative measures to responsive, from diplomatic to military, under one banner, and referring to this total as an ‘emerging norm of R2P’, the rhetoric glosses over the fact that some of the elements of this responsibility are not ‘emerging’ but already binding under present international law.21 Instead of clarifying, and thereby potentially enhancing compliance with international legal obligations, R2P talk risks diluting international law.

4. Consequence 2: Undermining the Resilience of those it Claims to Protect Back to Darfur 2008. The person who stated ‘We need NATO, the EU and the ICC’ is asked why Darfurians need the ICC. He answers: For justice. What is ‘justice’? Justice is the end of the war. How is the ICC going to end the war? By arresting President Bashir and his party. And then? Once there is peace in Darfur, the ajaweed [respected elders] will do real justice. What is real justice? Real justice is done through judiya [a mix of mediation and arbitration between groups, resulting in compensation and arrangements for future co-existence].22

An ajwad, a respected elder, is asked why Darfurians are not using judiya right now: ‘This is genocide and only the International Criminal Court can address

Criminal Court on the one hand, and the goal of the Rome Statute to “put an end to impunity” on the other hand.’ Footnotes omitted.). 21. See, for instance, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Judgment), ICJ Reports (2007) 43, section IX.1. 22. Interview by the author, Nyala, December 2008.

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genocide’, he responds.23 Echoing celebrity activists such as George Clooney and Angelina Jolie who have been insisting on the need for international intervention in Darfur,24 this ajwad argues that the crimes have been committed ‘against humanity’ and that therefore traditional justice is not sufficient.25 The upshot is that Darfurians have become dependent on outside intervention not only for food, water and medical aid, but also for judicial and political solutions. Two years later, in May 2010, when asked about the ICC the spokesperson shrugs his shoulders: ‘African Union, United Nations, International Criminal Court’.26 In his view they are all international organisations that promised peace but failed to bring it. In defence to the criticism of disillusioning those in whose interest they claim to act, ICC and R2P advocates immediately refer to the need to temper expectations – neither the ICC nor R2P are panaceas. But it is their own rhetoric of potential that raises these expectations. Victor Tanner has observed with respect to humanitarian aid how ‘[t]here is a tendency, in humanitarian circles, to underestimate the resilience of communities in crisis – and by extension, to overestimate the difference aid programmes can make to survival and recovery.’27 This applies to international criminal justice and R2P, too. Similar to how the field of psychology sees aversive events immediately through the lens of trauma and treatment, R2P advocates see disasters only through the lens of ‘saving’.28 Both views fail to recognise human resilience as a person’s most effective protection. And like trauma therapy for untraumatised persons is ineffective, indeed harmful,29 the promise of saving by outsiders disturbs resilience to protect oneself. This is not to say that no assistance should be given – but the assistance should be different from that provided by the ICC or promoted by R2P advocates. The ICC and the concept of R2P focus on the event itself – a genocide, crimes against 23. Ibid. 24. Angelina Jolie, ‘Justice for Darfur’, Washington Post, 28 February 2007. 25. There are also other reasons for the diminished recourse to judiya, among which are: transformations, accelerated by the conflict, in Darfurian society such as the rise of new authorities and individualisation, which challenge the legitimacy of judiya; too little support from the state to facilitate and enforce judiya; too much intervention from the government in the judiya procedures; and an environment of armed conflict. Moreover, many ajaweed argue that judiya is not suitable to the number and character of crimes committed in the conflict. See Nouwen, Complementarity in the Line of Fire, supra note 19. 26. Author’s interview, Darfur, May 2010. 27. Victor Tanner, ‘Rule of Lawlessness: Roots & Repercussions of the Darfur Crisis’ (Interagency Paper, January 2005) 29. 28. See for instance the approach of the influential Save Darfur movement: . See also Mahmood Mamdani, Saviors and Survivors: Darfur, Politics and the War on Terror (Verso: London, New York, 2009). 29. See George A. Bonanno, ‘Loss, Trauma, and Human Resilience: Have We Underestimated the Human Capacity to Thrive after Extremely Aversive Events?’, 59 American Psychologist (2004) 20-28.

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humanity, war crimes. However, psychologists working on post-conflict situations have found that ‘[f ]or many survivors the most troubling aspect of disaster is not the event itself, but coping with day-to-day life afterwards. Rebuilding livelihoods, and thereby self-worth, is key. ... “The majority of the time people will heal within themselves once those other aspects of their lives are restored”.’30

5. Consequence 3: Intensifying Conflict ‘We are admiring the ICC, we are fully supporting the ICC. ... we are ready to work as tool for the ICC to capture anybody.’31 It is a few days before the ICC’s decision on an arrest warrant for President Bashir is expected. The member of one of the rebel movements continues that if the warrant is issued it will be the ‘end of his legitimacy to be president of Sudan.’32 He adds: ‘We will work hard to bring him down ... If he doesn’t cooperate with the ICC, the war will intensify.’33 Intended or not, one of the consequences of the ICC’s intervention in Sudan has been intensification of the conflict in Darfur.34 After the request for an arrest warrant against the Sudanese President, some armed movements, feeling strengthened by ‘brother Ocampo’, increased their military activity against the government. Others have refused to participate in peace negotiations, arguing that one should not negotiate with ‘war criminals’. When seeing international justice operate to weaken their opponent more than themselves, leaders of Darfurian rebel movements have calculated that they should put negotiations on hold until international criminal justice has weakened the opponent to such an extent that they can obtain a peace agreement, on their terms.35

30. ‘In-Depth: Coping with Crisis. Global: Introduction’, IRIN Humanitarian News and Analysis (a service of the UN Office for the Coordination of Humanitarian Affairs), 10 November 2010, . 31. ‘Darfur Rebels Vow Full ICC Cooperation Ahead of Ruling on Bashir Case’, Sudan Tribune, 2 March 2009. 32. Ibid. 33. Ibid. 34. This section is based on, and further developed in, Sarah M.H. Nouwen and Wouter G. Werner, ‘Doing Justice to the Political: The International Criminal Court in Uganda and Sudan’, 21 European Journal of International Law (2010) 941-965. 35. See also Bashir cited in Sam Dealy, ‘Interview: Sudan’s President Omar Al-Bashir’, Time Magazine, 14 August 2009: ‘We are not concerned with the ICC except for one issue: The methods that the Court followed had a dangerous impact in signaling a message to the armed rebel groups that they should not reach peace with this government because its president is wanted by international justice, which will definitely lead to the government’s fall, and therefore there is no need to talk to the government which is perceived to have the international community against it. This is the most dangerous thing with this court.’

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The Sudanese government, for its part, has threatened that ‘[t]he enemies’ recourse to the ICC would be counterproductive.’36 Depicting ‘Ocampo’s Plot’ as ‘A Malicious Move in the Siege’37, the government has interpreted the Prosecutor’s request for an arrest warrant against Bashir as part of the western policy of promoting regime change in Islamic countries. The association is straightforward: execution of an arrest warrant against an incumbent president inevitably results, at least de facto, in a change of head of state. In response, the government strengthened its lines of defence. While in 2007 and 2008 there were indications that Bashir, tired of twenty years of figure-heading for the National Congress Party, was not keen to run in the next elections, his electoral victory was overwhelming in 2010: the ICC arrest warrant and the precedent of Koštunica sacrificing Milošević provided enough reason not to step down. The situation in Darfur illustrates that R2P, like the ICC carrying the promise of outside intervention, can intensify conflict, too. Observers to the negotiations leading to the still-born Darfur Peace Agreement have observed that Abdul Wahid, leader of one of the rebel movements, ‘saw the possibility of an armed intervention comparable to those by NATO in Bosnia or Kosovo and ... refused to sign the Darfur Peace Agreement’.38 Alan Kuperman has argued that the expectation of humanitarian intervention has increased both the magnitude and duration of Darfur’s rebellion, and therefore the retaliation it provoked against civilians.39 At the same time, international invocation of R2P with respect to Darfur increased the Sudanese government’s unwillingness to accept a UN peacekeeping force. The reasoning was evident: A peacekeeping force mandated by the same body that referred the situation in Darfur to the ICC might well be authorised to enforce arrest warrants, and thereby effectuate regime change. Moreover, as Alex de Waal has noted, in light of the parallels made by US politicians between ‘saving’ Kosovo and ‘saving’ Darfur, ‘[i]t was not lost on Sudan’s leaders that NATO’s humanitarian intervention in Kosovo appear[ed] to be leading to the independence of the province.’40 The Darfur rebellion, unlike Sudan’s war in its South, was never inspired by a claim for independence: Darfurians wanted more rather than less state in Darfur and more rather than less of Darfur in powerful positions in Khartoum. But in 2010, rebel leaders invoked the Advisory Opinion of the International Court of Justice on Kosovo, arguing that they, too, could proclaim

36. ‘Enemies’ recourse to the ICC futile – Al Bashir’, Al-Rai Al-Aam, 19 July 2010. 37. Poster at airport road, photographed in 2008, published in Nouwen and Werner, ‘Doing Justice to the Political’, supra note 34, at 955. 38. Alex de Waal, ‘Darfur and the Failure of the Responsibility to Protect’, 83 International Affairs (2007) 1039-1054 at 1046. 39. Alan J. Kuperman, ‘Darfur: Strategic Victimhood Strikes Again?’, 4 Genocide Studies and Prevention (2009) 281-303. 40. De Waal, ‘Failure of the Responsibility to Protect’, supra note 38, at 1046.

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Darfur independent.41 The ICC and the R2P advocacy have thus both contributed to radicalisation of political claims and fuelled ambitions of total victory. Confronted with this consequence of intensifying conflict, hard-core ICC or R2P supporters answer, if not contesting the facts: ‘and rightly so’. In the words of ICC Prosecutor Ocampo, criminals should be arrested, not appeased.42 In the words of the UN Secretary-General: Yes, it may be true: demanding criminal accountability, at the wrong time, can discourage warring parties from sitting down at the negotiating table. Yes, it may even perpetuate bloodshed. Even so, one thing is clear: the time has passed when we might speak of peace versus justice, or think of them as somehow opposed to each other.43

R2P has been supported on similar deontological grounds. The SecretaryGeneral has argued that the UN: never tires of trying to accomplish the impossible. So be it with R2P, which speaks to the things that are most noble and enduring in the human condition. We will not always succeed in this cardinal enterprise, and we are taking but the first steps in a long journey. But our first responsibility is to try.44

The parallel between R2P and the ICC is that while activists, policymakers, bureaucrats, diplomats, and armchair theorists in New York, The Hague and London ‘try’ to provide protection or taboo the peace versus justice debate45, others feel the consequences of an international community that in its quest for a protection that it cannot provide or ‘justice for yesterday’s victims’, to cite an anonymous author, ‘makes today’s living the dead of tomorrow’.46

6. The Complementarity and R2P Paradox Almost indignant, an Acholi traditional leader in northern Uganda recounts the problem as blatantly obvious:

41. ‘Self-determination emerging as an option for Darfur: JEM’, Sudan Tribune, 4 August 2010. 42. Luis Moreno-Ocampo, ‘Statement’, Review Conference – General Debate, Kampala, 31 May 2010, 5. 43. Ban Ki-Moon, ‘An Age of Accountability’, Address to the Review Conference on the International Criminal Court, Kampala, 31 May 2010, 4. 44. Ban Ki-Moon, ‘Responsible Sovereignty: International Cooperation for a Changed World’, address at an eponymous event in Berlin, 15 July 2008. 45. See more elaborately Sarah M.H. Nouwen, ‘Justifying Justice’, in James Crawford and Martti Koskenniemi (eds), The Cambridge Companion to International Law (Cambridge University Press, 2012). 46. Anonymous, ‘Human Rights in Peace Negotiations’, 18 Human Rights Quarterly (1996) 249258 at 258.

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Finnish Yearbook of International Law (Vol. 21, 2010) If you want to issue arrest warrants, then make sure that Kony is within your reach. If you cannot arrest Kony, then it is the local people that will suffer.47

The Acholi leader identifies a structural problem of the ICC and R2P. Inability to arrest the LRA leadership was one of the primary stated reasons for Uganda to refer the situation to the ICC. Nonetheless, at an international ICC event four years later, after the ICC has issued arrest warrants for the LRA leadership, the ICC Registrar accused the Ugandan government of failing to execute the ICC arrest warrants for the LRA leadership.48 This situation reveals what has been termed the ‘complementarity paradox’: where a state is unable or unwilling genuinely to investigate and prosecute, ‘the international community’ is often as, or even more, unwilling or unable to do so.49 There are indications that one could equally speak of an R2P paradox. In 2006, there was international consensus that the UN should take over the peacekeeping operation of the African Union in Darfur as the AU had failed to keep a nonexisting peace. There was also international consensus that the UN would not intervene without a peace agreement having been reached. The examples illustrate a fundamental flaw in the design of ICC and R2P as back-up mechanisms: while the concepts correctly assume that states sometimes fail in fulfilling their responsibility to prosecute or to protect, they do not provide for the scenario that the ‘international community’ is equally, if not more, unwilling or unable. ICC and R2P proponents will rebut that this is precisely what they are working on: enhancing the willingness and capacity of both the state and the international community to prosecute and to protect against international crimes. But, as this contribution has argued, the way in which this is currently done is often counterproductive. Recommendations as to how to engage differently I leave for a next conference – at Professor Koskenniemi’s home university one need not provide policy advice to guard oneself against the accusation that criticising ICC and R2P equates defending those responsible for international crimes. Vice versa, nothing in this contribution is aimed to disprove the assumption that both the ICC and R2P derive from a genuine desire to make this world a better place. Indeed, this desire is too important for its pursuit to be left unaccountable.

47. Interview by the author, Gulu, September 2008. 48. Participant Observation, Assembly of States Parties, Sixth Resumed Session, side event for African States, New York, 2-6 June 2008. 49. For nuances of this paradox, see Nouwen, Complementarity in the Line of Fire, supra note 19.

From Promise to Practice? The Legal Significance of the Responsibility to Protect Concept Anne Orford* AbstrAct: This article suggests that the responsibility to protect concept offers a coherent framework for understanding and integrating pre-existing practices of international executive rule that have shaped the decolonised world since the 1950s. The idea that the UN has a responsibility to maintain order and protect life in the decolonised world began to take shape with the creation of the United Nations Emergency Force (UNEF) in response to the Suez crisis of 1956 and the UN operation in the Congo (Organisation des Nations Unies au Congo, or ONUC) in 1960. Since that time, the UN and other international actors have developed and systematised an expansive body of practices aimed at maintaining order and protecting life in the decolonised world. This article explores the ways in which the responsibility to protect works to transform those practices of executive rule into promises, or deeds into words. It concludes by exploring some of the legal and political questions raised by thinking about the responsibility to protect concept in the light of this history. Keywords: responsibility to protect, Dag Hammarskjöld, international executive rule, UN Charter, decolonisation, authority

1. Introduction Since its development by the International Commission on Intervention and State Sovereignty (ICISS) in 2001,1 the responsibility to protect concept has garnered the support of a strikingly diverse range of states, international and regional organisations and civil society groups, and has led to major projects of systemic integration and rationalisation at and around the United Nations (UN). Yet for much of the intervening decade most critics and commentators, * 1.

Australian Research Council Future Fellow. This article was first published in revised form in 3 Global Responsibility to Protect (2011) 400-424, and draws on Anne Orford, International Authority and the Responsibility to Protect (Cambridge University Press, 2011). International Commission on Intervention and State Sovereignty (ICISS), The Responsibility to Protect (International Development Research Centre: Ottawa, 2001).

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including most international lawyers, have argued that the responsibility to protect concept remains of limited legal significance. The ICISS report proposed an ambitious catalogue of duties that the international community owed to populations suffering serious harm, yet as the product of a commission with no particular official status, its recommendations carried no legal weight. The idea that the responsibility to protect concept might impose significant new legal obligations upon states or international organisations to take particular forms of actions in specific circumstances was firmly resisted, both by states that might be subjected to international intervention and by states that might be obliged to participate in such actions.2 In the negotiations leading up to the World Summit, ‘states with major force projection capabilities’ made clear that they were ‘decidedly unenthusiastic – as were many other Member States as well – about allowing multilateral organizations to decide how, where, and when their forces would be deployed’.3 In particular, John Bolton, the US Representative to the UN, spelt out in a letter to Member States that ‘the Charter has never been interpreted as creating a legal obligation for Security Council members to support enforcement action in various cases involving serious breaches of international peace’ and accordingly ‘a determination as to what particular measures to adopt in specific cases cannot be predetermined in the abstract but should remain a decision within the purview of the Security Council’.4 States that had experienced – or that might expect to be targets of – Western intervention, including the members of the Non-Aligned Movement, were also strongly opposed to any endorsement of the notion that inclusion of the responsibility to protect concept in the World Summit Outcome might create a right of humanitarian intervention.5 These concerns were reflected in the removal of language from the World Summit Outcome referring to the ‘obligation’ of the international community to help protect populations, and in the maintenance of space for political-decision making concerning the use of force with the limited commitment to taking collective action through the Security Council ‘on a case-by-case basis’ in situations where ‘peaceful means’ are inadequate and ‘national authorities manifestly fail to protect their populations’.6 2. 3. 4. 5. 6.

See further Edward C. Luck, ‘Sovereignty, Choice and the Responsibility to Protect’, 1 Global Responsibility to Protect (2009) 10-21 at 19. Ibid. John R. Bolton, Ambassador and Representative of the US to the UN, ‘Letter to UN Member States’, 30 August 2005, (visited 6 July 2011). Luck, ‘Sovereignty’, supra note 2, at 17–18. Ekkehard Strauss, ‘A Bird in the Hand is Worth Two in the Bush – On the Assumed Legal Nature of the Responsibility to Protect’, 1 Global Responsibility to Protect (2009) 291-323 at 296-99.

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Most international lawyers have concluded that the version of the responsibility to protect concept enshrined in the World Summit Outcome and accepted by Members of the General Assembly cannot be understood to impose new legal obligations that are binding upon states acting either unilaterally or collectively.7 There is nothing added to the existing obligations of states by the statement that the ‘raison d’être and duty’ of every state is to protect those within its territory.8 The responsibility of the state to protect those within its territory or jurisdiction from genocide and other mass atrocities was already reflected in the Genocide Convention, international and regional human rights treaties and the laws of war.9 Nor does it appear that the declaration of an international responsibility to protect has imposed an enforceable legal obligation upon states to engage in unilateral or collective intervention in response to every situation of mass atrocity.10 Indeed, for more sceptical commentators, the development of an international responsibility to protect populations from international crimes can be added to the long list of unfulfilled promises and unrealised tasks that the international community has set itself during the post-Cold War era.11 The perception that the responsibility to protect concept is of limited normative significance was seriously challenged in March 2011, when the Security Council passed Resolution 1973 reiterating ‘the responsibility of the Libyan authorities to protect the Libyan population’, and authorising ‘UN Member States that have notified the Secretary-General, acting nationally or through regional organiza7.

See, as representative examples of legal scholarship, Jutta Brunée and Stephen J. Toope, ‘The Responsibility to Protect and the Use of Force: Building Legality?’, 2 Global Responsibility to Protect (2010) 191-212 at 192; Hilary Charlesworth, ‘Feminist Reflections on the Responsibility to Protect Concept’, 2 Global Responsibility to Protect (2010) 232-249 at 235 and 248; Ekkehard Strauss, ‘A Bird in the Hand’, supra note 6, at 314; Carlo Focarelli, ‘The Responsibility to Protect Doctrine and Humanitarian Intervention: Too Many Ambiguities for a Working Doctrine’, 13 Journal of Conflict and Security Law (2008) 191-213 at 193; Amrita Kapur, ‘“Humanity as the A and Ω of Sovereignty”: Four Replies to Anne Peters’, 20 European Journal of International Law (2009) 560-567 at 562; Carsten Stahn, ‘Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?’, 101 American Journal of International Law (2007) 99-120; Gelijen Molier, ‘Humanitarian Intervention and the Responsibility to Protect after 9/11’, 53 Netherlands International Law Review (2006) 37-62. For the position that the responsibility to protect concept does create a new obligation upon the Security Council to intervene in situations of mass atrocity, see Anne Peters, ‘Humanity as the A and Ω of Sovereignty’, 20 European Journal of International Law (2009) 513-544 at 540 and 544. 8. In Larger Freedom: Towards Development, Security and Human Rights for All, Report of the Secretary-General, UN Doc. A/59/2005 (21 March, 2005), at para. 135. 9. See further Louise Arbour, ‘The Responsibility to Protect as a Duty of Care of International Law and Practice’, 34 Review of International Studies (2008) 445-458; Mark Gibney, ‘Universal Duties: The Responsibility to Protect, the Duty to Prevent (Genocide) and Extraterritorial Human Rights Obligations’, 3 Global Responsibility to Protect (2011) 123-151 at 138-141. 10. Brunée and Toope, ‘Building Legality?’, supra note 7, at 208. 11. Nicholas J. Wheeler and Frazer Egerton, ‘The Responsibility to Protect: “Precious Commitment” or a Promise Unfulfilled?’, 1 Global Responsibility to Protect (2009) 114-132.

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tions or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures … to protect civilians and civilian populated areas under threat of attack’ in Libya.12 In the aftermath of Security Council Resolution 1973, the difficulty lies not in making the argument that the responsibility to protect concept has normative significance, but rather in agreeing on what its significance might be. The significance of the concept, for international law and politics, is in some ways obscured by the dramatic events in Libya. According to the Secretary-General, the challenge that faces the international community is to transform the responsibility to protect concept from ‘promise to practice’ or from ‘words into deeds’.13 The intervention in Libya was, in this view, a historic step towards this realisation of the responsibility to protect concept. In contrast, this article will suggest that the normative significance of the responsibility to protect concept lies not in its capacity to transform promise into practice, but rather in its capacity to do the reverse – that is, to transform practice into promise, or deeds into words. The responsibility to protect concept offers a coherent framework for understanding and integrating pre-existing practices of international executive rule that have shaped the decolonised world since the 1950s. In order to understand the significance of the responsibility to protect concept, it is therefore necessary to go back before the World Summit of 2005, before the ICISS report of 2001, before the NATO intervention in Kosovo of 1999 that was the immediate trigger to the creation of ICISS – back to the mid1950s and early 1960s. The idea that the UN has a responsibility to maintain order and protect life in the decolonised world began to take shape with the creation of the United Nations Emergency Force (UNEF) in response to the Suez crisis of 1956 and the UN operation in the Congo (Organisation des Nations Unies au Congo, or ONUC) in 1960. Since that time, the UN and other international actors have developed and systematised an expansive body of practices aimed at maintaining order and protecting life in the decolonised world. This article explores the ways in which the responsibility to protect works to transform those practices of executive rule into promises, or deeds into words. Part 1 outlines the major innovations in international executive rule introduced during the early years of decolonisation. Part 2 analyses the extent to which the UN Charter provides a normative foundation for such forms of executive action. Part 3 explores how those practices of executive rule expanded during the 1990s, and the strains placed by that expansion upon existing accounts of the legitimacy of international 12. SC Res. 1973, 17 March 2011. 13. On the need to move from ‘promise to practice’, see UN Secretary-General, Implementing the responsibility to protect, Report of the Secretary-General, UN Doc. A/63/677 (12 January 2009). On the need to move from ‘words to deeds’, see UN Secretary-General, ‘Remarks at a Stanley Foundation Conference on “Implementing the Responsibility to Protect”’, Tarrytown, 15 January 2010, (visited 6 July 2011).

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authority. Part 4 concludes by suggesting why the emergence of the responsibility to protect concept is a significant normative development in light of that history.

2. Practices of Protection: The Role of the UN in the Decolonised World When the UN was requested to intervene in the Suez crisis in 1956 and the Congo crisis in July 1960, both the requesting governments and then UN Secretary-General Dag Hammarskjöld believed that the UN could operate as a neutral force to protect life, maintain order and preserve the independence of newly decolonised states. Both the Suez and Congo crises were situations in which the old colonial powers were suddenly confronted with the material effects of decolonization. The creation of UNEF and ONUC in response changed the landscape of international politics in two ways. First, those operations signaled the end of a particular version of informal empire. Second, the major innovations in international executive rule that were consolidated and developed during that period – such as fact-finding, peacekeeping, civilian administration and centralised forms of technical assistance – have since expanded to become core techniques for the administration of the decolonised world.

2.1. The Suez Crisis and the Emergence of Executive Rule The Suez crisis was one effect of the wave of revolutions that swept the Arab world and Africa during the 1950s and 1960s. Then, as now, young leaders were fired by dreams of pan-Arabic solidarity, by the desire to end oppressive and exploitative rule, and by hopes for a better future. As archival records now make clear, however, that earlier wave of revolutions was not welcomed by Western leaders. The Suez crisis erupted on 26 July 1956, when Egyptian President Gamal Abdel Nasser issued a decree nationalising the Compagnie Universelle du Canal Maritime de Suez, transferring its assets to the Egyptian government and declaring martial law in the Canal zone. With the nationalisation of the Canal, the countries of Europe and North America were suddenly confronted with the material effects of decolonisation. Egypt had long been of enormous strategic and commercial importance to European powers, particularly after the Suez Canal had opened to shipping in 1869. The existence of the Canal contributed greatly to the expansion of European world trade, as it allowed ships to travel from Europe to Asia without having to navigate around Africa. By the 1950s, the Canal had become central to international commerce and, perhaps more importantly, much of Europe’s oil was transported through the Canal.14 14. Keith Kyle, Suez: Britain’s End of Empire in the Middle East (I.B. Tauris Publishers: London and New York, 2001) at 7.

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The nationalisation of the Suez Canal posed a major problem for those states that had come to depend upon access to the canal on favourable terms. The nationalisation did not appear to breach any international treaties, and there was no general principle of international law requiring that resources deemed of vital importance to international commerce must be held or managed by private companies or by international bodies.15 The option of invading Egypt to regain control over the Canal seemed to have been ruled out by the provisions of the (still relatively new) UN Charter prohibiting the resort to force in international relations. In response to the news, a coalition of Canal users therefore took action publicly, through the UN, to find a peaceful solution to the problem. These negotiations appeared successful, and on October 12 the foreign ministers of the UK, France and Egypt agreed on a set of six principles for the future operation of the canal that were subsequently endorsed by the Security Council.16 Yet at the same time as these public negotiations were proceeding, the French, Israeli and British governments also secretly formulated plans ‘to break the Canal problem by force’.17 In 1996, the Israeli government released its copy of the tripartite Protocol of Sèvres, signed on 24 October 1956 by the UK, Israel and France.18 The Protocol recorded the agreement reached between the three parties that Israeli forces would launch ‘a large scale attack’ on Egypt in the evening of 29 October 1956, thus providing a pretext for Britain and France to undertake a police action to secure the Canal and restore peace. The following day the British and French governments would simultaneously issue an ultimatum to the Egyptian and Israeli governments requiring them to ‘halt all acts of war’ and withdraw all troops ten miles from the Canal. In addition the Egyptian government would be called upon ‘to accept temporary occupation of key positions along the Canal’.19 If Israel or Egypt did not give its consent to the Anglo-French demands within twelve hours, the ‘Anglo-French forces would intervene with the means necessary to ensure that their demands are accepted’.20 While the ultimatum merely required Israel to withdraw from territory it had occupied illegally, it required Egypt to withdraw from part of its own territory.21 On the 29 October, as agreed, Israeli forces attacked Egypt. That evening, the US government declared in a radio broadcast that it intended to stand by the 1950 15. ‘Note: Nationalization of the Suez Canal Company’, 70 Harvard Law Review (1957) 480-490 at 485. 16. Brian Urquhart, Hammarskjöld (W. W. Norton: New York, 1972) at 167-68. 17. Ibid., at 160. 18. The Protocol of Sèvres, 24 October 1956, reprinted as the Appendix to Avi Shlaim, ‘The Protocol of Sèvres, 1956: anatomy of a war plot’, 73 International Affairs (1997) 509-530, and as Appendix A to Kyle, Suez, supra note 14, at 587. 19. Ibid., Articles 1-2. 20. Ibid., Article 3. 21. Wm Roger Louis, Ends of British Imperialism: The Scramble for Empire, Suez and Decolonisation (I.B. Tauris: London, 2006) at 680.

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Tripartite Agreement between the US, the UK and France, in which the three powers had declared their opposition to the use of force in the Middle East and had pledged to support any victim of aggression in the region, and announced its decision to call for an immediate meeting of the Security Council.22 The latter announcement apparently came as a surprise both to the Secretary-General and to the French President of the Security Council. On hearing that news, Hammarskjöld tried to contact the US Ambassador to the UN, Henry Cabot Lodge, Jr, only to find that Lodge was in a box at the opening night of the Metropolitan Opera. Hammarskjöld was finally able to track down James Barco, Lodge’s deputy, who hurried to the Opera House to tell Lodge the news.23 It happened that the British Ambassador to the UN, Sir Pierson Dixon, was also in his box at the opera, also in white tie. As a result, all the while Maria Callas was singing Norma, ‘the two boxes were exchanging notes’.24 When Lodge’s box told Dixon’s box of the plan to invoke the Tripartite Agreement and spoke of the need for the Three Powers to live up to their undertakings, Dixon responded: ‘Don’t be silly and moralistic. We have got to be practical’.25 The exchange between the boxes was, according to one historian of the period, ‘not to the mutual satisfaction of the occupants’.26 The next morning, on 30 October, France and the UK delivered their joint ultimatum directed to Egypt and Israel. News of the Anglo-French ultimatum became known during a Security Council meeting on 30 October. During that meeting, Britain and France vetoed both a US and a Russian resolution calling for an Israeli withdrawal and calling on all members to refrain from the threat or use of force in the area.27 In response to the deadlock of the Security Council, the Yugoslav representative invoked the procedure under Resolution 377 (V) of the General Assembly, ‘Uniting for Peace’, and the matter was referred to the General Assembly.28 As anticipated, Israel quickly accepted the ultimatum while Egypt rejected it. The Anglo-French invasion of Egypt commenced with the launch of air attacks on 31 October.29 An Emergency Special Session of the General Assembly was convened on 1 November to discuss the Suez situation. At that meeting, the Egyptian representative, Omar Loutfi, announced that his country had ‘been subjected to bloody aggression’, and that Israel had committed a ‘premeditated, carefully prepared 22. 23. 24. 25. 26. 27. 28.

Urquhart, Hammarskjöld, supra note 16, at 172. Ibid. Kyle, Suez, supra note 14, at 354. Ibid., at 355. Ibid. Louis, Ends of British Imperialism, supra note 21, at 682. Uniting for Peace, GA Res. 377 (V), 3 November 1950. The ‘Yugoslav resolution’ was the first time the Uniting for Peace procedure had been formally invoked at the UN. 29. Urquhart, Hammarskjöld, supra note 16, at 173.

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armed attack for the purpose of occupying part of Egyptian territory and provoking war in that area’.30 The Franco-British air force had since begun to bomb Egypt and had attacked a military academy, a mosque, a hospital, all Egyptian airports and other sites in Cairo, Ismailia, Port Said, Suez and Alexandria.31 Loutfi reported that on 30 October, the Commander-in-Chief of the Franco-British forces had declared: Aerial bombing will continue until Egypt sees reason. Length of the operation depends on how quickly Egypt accepts our terms. The sooner Egypt sees reason, the less damage will occur.32

Sir Pierson Dixon, the UK Ambassador, did not know in advance of the decision by the British government to support the Israelis and invade Egypt, and wrote later that the effort of ‘putting a plausible and confident face on the case was the severest moral and physical strain I have ever experienced’.33 Nonetheless, in addressing the General Assembly, Dixon dutifully sought to characterise the Anglo-French intervention as a police action. The action which we and the French government have taken is essentially of a temporary character, and, I repeat it, designed to deal with a unique emergency. Our intervention was swift because the emergency brooked no delay. It has been drastic because drastic action was evidently required. It is an emergency police action.34

Dixon rejected as ‘absurd’ and ‘false’ the suggestion that the UK intervention was undertaken as part of a plan agreed to with Israel.35 He stressed that British action was not aimed at the ‘sovereignty’ or the ‘territorial integrity’ of Egypt.36 The UK had no interest in Egyptian territory per se. It is not of our choice that the police action which we have been obliged to take is occurring on Egyptian territory … After all, the fighting in which Israel is involved is taking place in Egypt, and it is therefore only in Egypt that it can be stopped. When two householders have committed a breach of the peace, the policeman has no option but to attempt to separate them where it is taking place.37

Dixon however stated in closing that ‘[i]f the United Nations were willing to take over the physical task of maintaining peace in the area, no-one would 30. GA Emergency Special Session 1-10 November 1956, Meeting Records, UN Doc. A/PV.561 (1 November 1956), at para. 25. 31. Ibid., at paras 29-31. 32. Ibid., at para. 32. 33. Urquhart, Hammarskjöld, supra note 16, at 175. 34. GA Emergency Special Session, supra note 30, at para. 79. 35. Ibid., at para. 97. 36. Ibid., at para. 102. 37. Ibid., para. 104.

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be better pleased than we. But police action there must be, to separate the belligerents and to stop the hostilities’.38 In a significant speech marking the clear separation between the interests of the US and old Europe on the issue of how to manage decolonisation, the US Secretary of State John Foster Dulles condemned the resort to force by Israel, France and the UK. Dulles was certainly no friend to Nasser. Yet the US did not want to enable a future legal order premised on the old model of informal imperial occupation of territories in the name of police action. From the perspective of the US State Department, colonial networks of influence were ‘outmoded’ and ‘dangerous to peace’.39 In his speech to the General Assembly, Dulles said that while there had been a ‘long and sad history of irritations and provocations’ on all sides, this did not justify resort to force by Israel, France and the UK.40 The session concluded with a proposal by the Canadian representative, Lester Pearson, that the General Assembly should create ‘a United Nations force, a truly international peace and police force’ that could keep Egypt and Israel at peace while a political settlement was negotiated.41 Two days later, Canada submitted a resolution to the General Assembly requesting ‘as a matter of priority, the Secretary-General to submit to it within forty-eight hours a plan for the setting up, with the consent of the nations concerned, of an emergency international United Nations Force to secure and supervise the cessation of hostilities in accordance with all the terms of the aforementioned resolution’.42 In a later study of the experience derived from the establishment of the United Nations Emergency Force, Hammarskjöld described UNEF as ‘a new and in many ways unique experiment by the United Nations in a type of operation which previously it had not been called upon to conduct’.43 The plan that Hammarskjöld developed, which was subsequently acted upon to establish UNEF, set out a number of key principles to guide the establishment and operation of the Force. These principles would come to play a significant role in shaping the rationalisation of executive action by the UN over the following decades. Of particular relevance to future operations were the principles addressing the issues of independence, impartiality and consent. Hammarskjöld proposed that the Force should have an international character and be set up under UN command.44 The officer responsible for that force would be ‘fully independent

38. 39. 40. 41. 42. 43.

Ibid., para. 111. Louis, Ends of British Imperialism, supra note 21, at 469. GA Emergency Special Session, supra note 30, at paras 137-139. GA Emergency Special Session, supra note 30, at paras 307-308. GA Res. 998 (ES-I), A/3354, 4 November 1956. Summary Study of the Experience Derived from the Establishment and Operation of the Force, Report of the Secretary-General, UN Doc. A/3943 (9 October 1958), annex, at para. 1. 44. Second and Final Report of the Secretary-General on the Plan for an Emergency International

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of the policies of any one nation’,45 and UN military personnel would have the same undivided loyalty to the UN as other international civil servants.46 The force must also be impartial. According to Hammarskjöld, the terms of reference made clear that ‘there is no intent in the establishment of the Force to influence the military balance in the present conflict and, thereby, the political balance affecting efforts to resolve the conflict’.47 In his subsequent study on the operation, Hammarskjöld stressed that, as a matter of principle, ‘United Nations personnel cannot be permitted in any sense to be a party to internal conflicts.’48 Finally, while the General Assembly acting under the Uniting for Peace resolution could establish an emergency force, consent was required to the operation or stationing of the force on the territory of a given country.49 The need for consent flowed from the principle of equality between member states.50 A clear commitment to respecting the sovereign equality of newly independent states such as Egypt was clearly of great importance in a situation where the Secretary-General was seeking to distinguish the use of force by the UN from intervention by former colonial powers. The UN action in the Suez had two major consequences for the future world order. On the one hand, the UN action ‘vindicated the view that colonialism was an anachronism’.51 Suez marked a moment at which former European imperial powers were forced to recognise that the preservation of the old colonial system was no longer possible. It was clear after Suez that powerful states would no longer readily be able to secure access to resources or strategic advantage through ‘temporary’ occupation, police action or land appropriation. Yet it was also clear that newly independent states would not be free to deny foreign access to and control over resources. Instead, the Suez operation supported the emergence of an Americanised global economy, premised upon an openness to investment, free trade, non-discrimination and the international management of resources in the decolonised world. The second long-term consequence of the Suez operation was the empowerment of the executive. In a confidential memo to the British Foreign

45. 46. 47. 48. 49. 50. 51.

United Nations Force Requested in the Resolution Adopted by the General Assembly on 4 November 1956 (A/3276), UN Doc. A/3302 (6 November 1956), at para. 4. Ibid. UN Secretary-General, Summary Study of Experience, supra note 43, at para. 168. UN Secretary-General, Second and Final Report, supra note 44, at para 8. UN Secretary-General, Summary Study of Experience, supra note 43, at para. 166. UN Secretary-General, Second and Final Report, supra note 44, at para. 9. Nabil Elaraby, ‘United Nations Peacekeeping by Consent: A Case Study of the Withdrawal of the United Nations Emergency Force’, 1 New York University Journal of International Law and Politics (1968) 149-177. Wm Roger Louis, ‘The Suez Crisis and the British Dilemma at the United Nations’, in Vaughan Lowe, Adam Roberts, Jennifer Welsh and Dominik Zaum (eds), The United Nations Security Council and War: The Evolution of Thought and Practice since 1945 (Oxford University Press, 2008) 280-297 at 297.

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Office after Suez, Sir Pierson Dixon concluded that Hammarskjöld’s influence had been significantly strengthened by his handling of Suez: ‘The outcome of this crisis left him more than a symbol or even an executive: he had become a force’.52 The political implications of that development were ambiguous, as the UN operation in the Congo would make clear.

2.2 Protecting Life and Maintaining Order: the UN in the Congo ONUC was also established in response to a situation in which entrenched colonial interests were threatened. The crisis in the Congo erupted just days after the Congo’s accession to independence on 30 June 1960, when soldiers of the Armée Nationale Congolaise (formerly the infamous Force Publique) revolted against their Belgian officers.53 The revolt was accompanied by rioting, attacks against European residents and looting. The soldiers demanded immediate appointment of Congolese officers and, along with other public servants, sought higher wages and promotions.54 The new government responded to the soldiers’ demands by agreeing to Africanise the officer corps and raise army wages by 30 per cent. This was interpreted by outside observers as an invitation to employees in mines and factories ‘to follow the soldiers’ lead and consolidate independence with social demands’.55 Belgium quite properly saw the Congolese government’s approach to these demands and to related questions of economic restructuring as a threat to the future of Belgian power and resources in the Congo.56 On 10 July Belgium intervened, justifying its military action as a ‘humanitarian intervention in the Congo’ undertaken ‘with the sole purpose of ensuring the safety of European and other members of the population and of protecting human lives in general’.57 The Belgian intervention started in the resource rich province of Katanga, which declared its independence on 11 July, and extended to the occupation of the Port of Matadi, which was also of commercial significance to the Belgians.58 On 12 July, the Prime Minister of the Republic of the 52. Sir Pierson Dixon, ‘The Secretary General of the United Nations: Mr Dag Hammarskjöld’, Confidential memorandum to Mr Selwyn Lloyd, 16 January 1958, FO371/137002/UN2303/1 (The National Archives, Kew). 53. For the history of the Force Publique, see Adam Hochschild, King Leopold’s Ghost (Mariner Books: Boston, 1999) at 123-31. 54. Georges Nzongola-Ntalaja, The Congo from Leopold to Kabila: A People’s History (Zed Books: London, 2002) at 89. 55. Ludo De Witte, The Assassination of Lumumba (translated to English by Ann Wright and Renée Fenby, Verso: London, 2002) at 8. 56. For an analysis of competing Belgian and Congolese economic interests in post-independence Congo, see Anne Orford, International Authority and the Responsibility to Protect (Cambridge University Press, 2011) at 70-72. 57. Security Council Meeting Records, UN Doc. S/PV.873 (13-14 July 1960), at paras 183 and 197. 58. On the relation between the Katangese secessionists and Belgian military forces, see Carole J.L. Collins, ‘The Cold War Comes to Africa: Cordier and the 1960 Congo Crisis’, 47 Journal of

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Congo, Patrice Lumumba and the President, Joseph Kasavubu, jointly wrote to the UN Secretary-General requesting UN military assistance ‘to protect the national territory of the Congo from the present external aggression which is a threat to international peace’.59 In his report to the Security Council, placing the Congo on the agenda and successfully requesting UN intervention, Hammarskjöld avoided characterising the nature of the Belgian intervention. Instead, he said that UN assistance was necessary to achieve ‘the maintenance of order in the country and the protection of life’.60 Nonetheless, Hammarskjöld made clear his understanding that, ‘were the United Nations to act as proposed’ and as a result ‘the national security forces are able to fully meet their tasks’, the Belgian government would then ‘see its way to a withdrawal’.61 Hammarskjöld told the Security Council that if he were given a mandate to act, he intended to base his actions on principles derived from the recent UN intervention in the Suez. On 14 July 1960, the Security Council passed Resolution 143, calling upon the Government of Belgium to withdraw its forces from the territory of the Congo, and authorizing the Secretary-General ‘to take the necessary steps, in consultation with the Government of the Congo, to provide the Government with such military assistance as may be necessary until, through the efforts of the Congolese Government with the technical assistance of the United Nations, the national security forces may be able, in the opinion of the Government, to meet fully their tasks’.62 In implementing these Security Council resolutions, Hammarskjöld treated the civilian and military components of the operation as ‘interrelated and mutually supporting elements of the assistance’.63 UN civilian administration and technical assistance were conducted under the centralised control of the Chief of the United Nations Civilian Operation, the Swede Sture Linner, who ‘in rank and authority’ was ‘the opposite number to the Supreme Commander of the United Nations Force’.64 According to Hammarskjöld, the ‘basic and necessary unity of the civilian and military operations’ made it essential that technical assistance operations be placed under the authority of the Chief of civilian activities. He recognized that this innovation meant that the UN ‘in the situation now facing

59. 60. 61. 62. 63. 64.

International Affairs (1993) 243-269 at 250; Georges Abi-Saab, The United Nations Operation in the Congo 1960–1964 (Oxford University Press, 1978) at 21-53. Cable dated 12 July 1960 from the President of the Republic of the Congo and Supreme Commander of the National Army and the Prime Minister and Minister of National Defence Addressed to the Secretary-General of the United Nations, UN Doc. S/4382 (13 July 1960). Security Council Meeting Records, supra note 57, at para. 19. Ibid., at para. 26. SC Res. 143, 14 July 1960. UN Secretary-General, Memorandum by the Secretary-General on the organization of the United Nations Civilian Operation in the Republic of the Congo, UN Doc. S/4417/Add.5 (11 August 1960), at 1. Ibid., at 2.

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the Congo’ was going ‘beyond the time-honoured forms for technical assistance’ in order ‘to do what is necessary’.65 Hammarskjöld considered that the UN could be trusted with the task of protecting newly independent states because of its unique characteristics of universality and neutrality. The UN, in Hammarskjöld’s words, was ‘a universal organization neutral in the big Power struggles over ideology and influence in the world, subordinated to the common will of the Member Governments and free from any aspirations of its own to power and influence over any group or nation’.66 Yet during the Congo operation, it became clear that in practice the UN could not remain impartial. Even basic decisions about which authorities should be given the funding that the UN had available to pay the army, or with which actors the UN should liaise to administer the country, involved choosing between competing factions. The situation was made more complicated when, early in the Congo operation, two sets of splits emerged within the country – the first between the central government and the secessionists backed by the Belgians, and the second between the parliamentary government and the executive.67 UN officials had to decide which actors they should recognise as the lawful authorities in the territory. The decision to support President Kasavubu and his chief of staff Colonel Mobutu was hugely controversial, and led to the famous attack on Hammarskjöld’s claims to neutrality and impartiality by Russian President Khrushchev.68 At the time of the Suez crisis, the expansion of executive power at the UN and the ‘margin of confidence’ it left to those with decision-making authority was equated with the dilution of Great Power politics and the empowerment of the newly independent states of the decolonised world. 69 Yet the views of newly independent states would not always align with those of the Secretary-General or the Security Council. It was during the Congo operation that the significant problems this raised became apparent. In retrospect, it is clear that even in the earliest days of UN intervention in the decolonised world, the idea that the UN could act as a neutral or impartial force was not plausible. Yet the idea that the UN in particular, and international humanitarians more generally, could intervene as neutral actors to alleviate suffering without becoming party to internal conflicts 65. Ibid. 66. UN Secretary-General, Introduction to the Annual Report of the Secretary-General on the Work of the Organization, UN Doc. A/4390/Add.1 (1960), at 2. 67. See the discussion of the choices facing the UN in Orford, International Authority, supra note 56, at 83-87. 68. Nikita Khrushchev, Chairman of the Council of Ministers of the Union of the Soviet Socialist Republics, ‘Statement to the UN General Assembly’, UN Doc. A/PV.882 (3 October 1960), at paras 22-24. 69. As the Secretary-General noted in his plan for UNEF, if ‘the Force is to come into being with all the speed indispensable to its success, a margin of confidence must be left to those who will carry the responsibility for putting the decisions of the General Assembly into effect’, UN Secretary-General, Second and Final Report, supra note 44, at para. 19.

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persisted throughout the Cold War. The adequacy of this account of international authority would become a major question during the 1990s, as the enormous expansion of international humanitarian action necessitated and enabled by the ending of the Cold War produced new practical and theoretical challenges.

3. The Powers of the Executive under the UN Charter The practices of executive action that Hammarskjöld developed at Suez and the Congo have since expanded dramatically. Yet there is little in the UN Charter that suggests its authors envisaged the creation of a powerful international executive that could undertake such wide-ranging forms of police action. Hammarskjöld himself recognised that the Charter gave little attention to the development of the executive aspects of the organisation. In the Introduction to his 1961 Annual Report to the General Assembly, Hammarskjöld noted that although ‘great attention is given’ in the Charter ‘to the principles and purposes, and considerable space is devoted to an elaboration of what may be called the parliamentary aspects of the Organization, little is said about executive arrangements’.70 To the extent that there exists an explicit legal basis for executive action, Hammarskjöld found it in the provisions of the UN Charter that define the authority of the Secretariat and the Secretary-General, giving the SecretaryGeneral an administrative position of ‘full political independence’ and entrusting the Secretary-General with the execution of political decisions at the request of the Security Council and the General Assembly.71 Article 99 in particular gives the Secretary-General considerable discretion to bring to the attention of the Security Council any matter that in his opinion may threaten the maintenance of international peace and security. Hammarskjöld considered that this grant of discretion carried with it a broad authority to make such inquiries and engage in such informal diplomatic activity as the Secretary-General thought necessary in order to determine whether to invoke his powers.72 Hammarskjöld did not interpret the limited attention to executive aspects of the UN in the Charter as a constraint on executive action. He argued forcefully that it was necessary to stop thinking of the UN merely as a forum for ‘static conference diplomacy’ and instead reimagine it as a ‘dynamic instrument’ for ‘executive action, undertaken on behalf of all members’.73 He concluded that the 70. UN Secretary-General, Introduction to the Annual Report of the Secretary-General on the Work of the Organization, UN Doc. A/4800/Add.1 (1961), at 5. 71. Dag Hammarskjöld, ‘The International Civil Servant in Law and in Fact’, in Wilder Foote (ed.), The Servant of Peace: A Selection of the Speeches and Statements of Dag Hammarskjöld (The Bodley Head: London, 1962), 329 at 334. See further the discussion in Orford, International Authority, supra note 56, at 10-11. 72. Hammarskjöld, ‘The International Civil Servant’, supra note 71, at 334. 73. UN Secretary-General, Introduction to the Annual Report of the Secretary-General 1961, supra

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lack of discussion of the executive aspects of the UN in the Charter meant that ‘the executive functions and their form have been left largely to practice’.74 This suited Hammarskjöld. He preferred to avoid dealing with abstract questions of authority or producing doctrines to define – and thus inevitably circumscribe – UN action. Nonetheless, Hammarskjöld was drawn to system building. He systematically digested the principles and lessons to be learned from past operations, and turned them into what he called ‘master texts’ or instruction manuals for emergency action.75 Hammarskjöld himself referred to previous operations as ‘precedents’,76 and described the principles that arose from them as ‘UN common law’.77 Over the course of his time in office, a set of themes began to emerge from these master texts. In particular, Hammarskjöld returned to the principles of independence, impartiality and neutrality as central to the character of international civil service. His repeated references to the need for an independent, impartial and neutral civil service were the closest Hammarskjöld came to providing an account of the reasons why the UN executive was the proper authority to rule the decolonised world.78 The expansion of executive rule has not been the subject matter of Charter amendments, new treaties or doctrinal elaboration.79 Rather, the practices of executive rule have been transmitted through operationally-oriented documents such as Security Council mandates, rules of engagement, instruction manuals, reports and studies outlining lessons learned from previous experience. To the generations of international civil servants who came after him, Hammarskjöld and his colleagues bequeathed practices that were then systematically rationalised and translated into programmes for further dynamic executive action. note 70, at 1. 74. Ibid. 75. Dag Hammarskjöld, ‘The Uses of Private Diplomacy’, in Foote (ed.), The Servant of Peace, supra note 71, 170 at 173. 76. Andrew W. Cordier and Wilder Foote, Public Papers of the Secretaries-General of the United Nations, Volume V: Dag Hammarskjöld 1960-1961 (Columbia University Press: New York, 1975) at 84. See further the discussion in Orford, International Authority, supra note 56, at 77-78. 77. Dag Hammarskjöld, ‘Secret, 14 July 1960’, in ‘Congo-1960, 14 July-14 September, Dag Hammarskjöld’s personal notes on Congo operations’, Dag Hammarskjöld’s samling L179:141, Kungliga Biblioteket, Stockholm. 78. See further Orford, International Authority, supra note 56, at 47-90. 79. It should be noted, however, that the International Court of Justice (ICJ) endorsed the expansive approach to executive action adopted by Hammarskjöld. In a decision dealing with the UN operations in the Suez and Congo, the ICJ held that when the UN ‘takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the Organization’. Each UN organ ‘must, in the first place at least, determine its own jurisdiction’, Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, ICJ Reports (1962) 151, at 168.

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The result has been the gradual consolidation of a significant apparatus of international rule accompanied by a minimalist articulation of the nature and form of international authority. From the 1960s onwards, UN peace and humanitarian operations have continued to be based upon the principles of neutrality, impartiality and independence inherited from Hammarskjöld.80 The insufficiency of those principles as a basis for international authority became increasingly apparent as the scope and complexity of UN operations expanded during the post-Cold War period.

4. The Expansion of Executive Rule in the post-Cold War Period Hammarskjöld had developed his model of preventive diplomacy in the context of the Cold War. With the end of the Cold War, the concept of security, and thus the ends to which the conflict prevention machinery of the UN was to be put, became more ambitious. The forms of executive rule initiated by Hammarskjöld came to play an increasingly significant role in the administration of life in decolonised states. For example, the mandates granted to UN peacekeeping forces during the 1990s extended beyond the traditional task of monitoring ceasefires to include ‘the full spectrum of peacebuilding activities, from providing secure environments to monitoring human rights and rebuilding the capacity of the state’.81 Peacekeeping became established as a core technique of international rule in the aftermath of the Cold War – by the end of 2009, the UN Department of Peacekeeping Operations could claim that it led ‘the world’s second largest deployed military force (after that of the US)’.82 UN civilian operations also became significantly more ambitious in scope and scale during the 1990s. While international organisations had long been involved in territorial administration, it was during this period that the UN took on responsibility for the plenary administration of Kosovo and East Timor. Similarly, during the post-Cold War period UN agencies in the humanitarian field began to exercise an increasing range of governmental powers in order to provide services and protection to populations throughout the decolonised world. To take one example, by the end of 2008 the UN High 80. For the claim that the principles of neutrality, impartiality and consent have acquired ‘constitutional status’, see Nicholas Tsagourias, ‘Consent, Neutrality/Impartiality and the Use of Force in Peacekeeping: Their Constitutional Dimension’, 11 Journal of Conflict and Security Law (2006) 465-482. 81. Victoria Holt and Glyn Taylor with Max Kelly, Protecting Civilians in the Context of UN Peacekeeping Operations: Successes, Setbacks and Remaining Challenges (United Nations: New York, 2009) 2-3. 82. United Nations, United Nations Peace Operations 2009: Year in Review (United Nations: New York, 2010), at 5.

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Commission for Refugees (UNHCR), the UN agency with responsibility for providing protection and support to refugees and internally displaced persons (IDPs), estimated that it was responsible for a total population of 34.4 million.83 With the expansion in the scope and complexity of international operations, it became clear that existing political and legal concepts could not fully grasp the nature of this form of rule or address the questions about legitimacy, authority and credibility to which it gave rise. The authority of the UN to exercise increasing amounts of executive power had continued to be explained in terms of the minimalist principles of neutrality, independence and impartiality. Those principles seemed increasingly unable to offer either operationally useful or politically satisfying answers to questions about authority that arose as a result of the growth of the power of the international executive. Both the achievements and the failures of UN operations during the 1990s placed the legitimacy of international executive action on the table. In Kosovo and East Timor, for example, local actors challenged the legitimacy of the authority exercised by international administrators. They asked why the UN, rather than the people, should have the authority to decide who should govern. The East Timorese, for example, were shocked when the Security Council took decisionmaking about East Timor out of their hands, announcing the establishment of the UN Transitional Administration in East Timor and endowing it with the power ‘to exercise all legislative and executive authority’.84 José Ramos-Horta commented: ‘Imagine a transition in South Africa, where Mandela wasn’t given the ultimate authority. Imagine if some UN official were given all the power and told it was up to him whether he felt like consulting Mandela or not’.85 In the aftermath of the genocides in Rwanda and Srebrenica, on the other hand, critics argued that the commitment of the UN to protecting its own personnel and its adherence to principles of impartiality and neutrality had contributed to the failure of UN peacekeepers to protect civilian populations from genocide. UN reports questioned the viability of the long-standing commitment to impartiality and neutrality on the part of UN peacekeepers and humanitarian agencies when confronted with situations of war or genocide.86 In the words of one such report on the future of UN peace operations, although impartiality should remain one of the ‘bedrock principles’ of peacekeeping, there are cases where ‘local parties 83. UNHCR, 2008 Global Trends: Refugees, Asylum-seekers, Returnees, Internally Displaced and Stateless Persons, 16 June 2009, available at . 84. SC Res. 1272, 25 October 1999, at para 1. 85. Samantha Power, Chasing the Flame: Sergio Vieira de Mello and the Fight to Save the World (Penguin Books: London, 2008) at 300. 86. UN Secretary-General, Report of the Secretary-General pursuant to General Assembly Resolution 53/35: The Fall of Srebrenica, UN Doc. A/54/549 (15 November 1999); Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in Rwanda, UN Doc. S/1999/1257 (16 December 1999), annex.

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consist not of moral equals but of obvious aggressors and victims’.87 In such situations, a commitment to impartiality ‘may amount to complicity with evil’.88 Many of those concerns came to a head in 1999 when NATO intervened in Kosovo without Security Council authorisation. While some states and commentators saw the NATO intervention as illegal, others argued that it was legitimate on humanitarian grounds. This was the logical extension of the functionalist justification for the expansion of UN jurisdiction that had accompanied international executive action since the 1960s. If the functions of sovereignty had been disaggregated and the international community had become the agent of a system for ensuring peace and protection, why did it matter who exercised those functions? If the UN failed to make the right decisions, failed to protect populations at risk effectively and failed to conduct itself in conformity with fundamental human rights values, what was wrong with coalitions of the willing, powerful states or regional organisations taking their place as executive agents of the world community, particularly if they could do so more efficiently? The precedent represented by Kosovo thus threatened not only the authority of the sovereign state, but also that of the UN. Revealing a keen understanding of the threat that the NATO action in Kosovo represented to UN jurisdiction, then Secretary-General Kofi Annan warned in his 1999 Annual Report to the UN General Assembly: ‘If the collective conscience of humanity … cannot find in the United Nations its greatest tribune, there is a grave danger that it will look elsewhere for peace and for justice’.89

5. International Authority and the Responsibility to Protect In light of this history, the responsibility to protect concept can be understood as an attempt to answer growing questions about the legitimacy of international authority. The responsibility to protect concept in the form of the ICISS report emerged as a response to the NATO action in Kosovo and concern about its implications for the international order. Inspired by the work done by Francis Deng and his associates during the 1990s on conflict management and IDPs in Africa, the ICISS report returned the question of authority to its proper place at the centre of debates about international intervention. The report argued that ‘the changing international environment’ required a ‘re-characterization’ of sovereignty from ‘sovereignty as control to sovereignty as responsibility’.90 According to 87. Panel on United Nations Peace Operations, Report to the Secretary-General, UN Doc. A/55/305-S/2000/809 (21 August 2000), at ix and 9. 88. Ibid., at ix. 89. Secretary-General Presents His Annual Report to General Assembly, UN Press Release SG/ SM/7136, GA/9596 (20 September 1999). 90. ICISS, Responsibility to Protect, supra note 1, at 13 (emphasis in original).

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ICISS, thinking of sovereignty in those terms enabled a clearer focus upon the ‘functions’ of ‘state authorities’.91 Sovereignty as responsibility ‘implies that the state authorities are responsible for the functions of protecting the safety and lives of citizens and promotion of their welfare’.92 In circumstances where the state does not have the power, the capacity or the will to perform those functions, a ‘fallback’ responsibility to protect on the part of the ‘broader community of states’ is activated.93 The ICISS report thus offered a theory of authority to justify the exercise of governmental functions by international actors. Conceptually, the principal significance of the responsibility to protect concept thus lies with its claim that the lawfulness of authority – whether of the state or the international community – flows from the factual capacity and willingness to guarantee protection to the inhabitants of a territory. Authority, to be recognised and respected, must be effective at guaranteeing protection. In that sense, the responsibility to protect concept offers an account of authority through which international officials can interpret their role to themselves and to those they govern. This argument for the lawfulness of authority does not refer to selfdetermination, popular sovereignty or to other romantic or nationalist bases for determining who should have the power to govern in a particular territory. The responsibility to protect concept does not relate the legitimacy of authority to a third term such as the people or the nation. Rather, the authority to govern is grounded on the capacity to protect. This represents a significant shift in the conception of lawful authority that has formed the normative basis of the modern international legal system since 1945. Under the UN Charter, the lawfulness of authority over a given territory became a matter both of fact and of right. The lawfulness of particular claimants to authority was determined by effective control over territory but also according to the principles of self-determination and sovereign equality. The responsibility to protect concept is a significant shift in that approach to authority. Practically, the implementation of that concept seeks to consolidate and systematise the practices initiated by Hammarskjöld. Although the scope of the responsibility to protect concept as endorsed in the World Summit Outcome is narrow, being limited to ‘the four crimes and violations agreed by the world leaders in 2005’, the practices envisaged for its implementation are broad. 94 According to Secretary-General Ban Ki-moon, implementation will involve ‘utilizing the whole prevention and protection tool kit available to the United Nations system’, with the aim of ‘integrating the system’s multiple channels of 91. 92. 93. 94.

Ibid. Ibid. Ibid., at 17. Secretary-General Defends, Clarifies ‘Responsibility to Protect’ at Berlin Event on ‘Responsibility to Protect: International Cooperation for a Changed World’, UN Press Release SG/SM/11701 (15 July 2008).

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information and assessment’,95 adopting a ‘unifying perspective’ and facilitating ‘system-wide coherence’.96 This will require an expansion and refocusing of the UN’s ‘early warning and assessment capacities’, to ensure that the UN ‘acts as one in the flow and assessment of information’.97 What then does this suggest about the legal significance of the responsibility to protect concept? Much attention has focused on the use of the responsibility to protect concept to justify military intervention, and this of course is what we saw in Libya. But what will it mean if the responsibility to protect concept continues to be used as its proponents suggest it should be used – that is, to consolidate established practices of international executive rule, such as surveillance, peacekeeping, and civilian administration, and to provide a coherent normative framework for those practices? What political possibilities are opened up – and what possibilities foreclosed – by conceptualising international authority as the exercise of a responsibility to protect? Let me conclude by briefly suggesting four lines of inquiry that are opened up by asking such questions about the responsibility to protect. First, thinking about the responsibility to protect concept in these terms suggests that it is of normative significance, but not because it imposes new obligations upon states. As noted earlier, it seems clear that the responsibility to protect concept in the World Summit was carefully couched so as not to impose new legal duties upon states or international actors to take particular actions in specific circumstances. Rather, the responsibility to protect concept can best be understood as a form of law that confers powers ‘of a public or official nature’ and that allocates jurisdiction. In The Concept of Law, H.L.A. Hart distinguished between ‘laws that confer powers’ and ‘those that impose duties’.98 Commentators have tended to treat the inclusion of the responsibility to protect concept in the World Summit Outcome as a failed attempt to do the latter. Instead, the responsibility to protect concept should be understood as normative in the former sense of providing legal authorisation for certain kinds of activities. The World Summit Outcome does not dictate the precise means by which the international community should implement the responsibility to protect. In that sense, the responsibility to protect concept has a similar character to the articles providing the legal basis for the political authority of the Secretary-General, the Secretariat and the Security Council under the UN Charter. It has long been accepted that Article 99 of the Charter does not impose a duty or obligation upon the Secretary-General to exercise his political authority in a particular way, but 95. Ibid. 96. UN Secretary-General, Implementing the responsibility to protect, supra note 13, at 7. 97. UN Secretary-General, Early warning, assessment and the responsibility to protect: Report of the Secretary-General, UN Doc. A/64/864 (14 July 2010), at 4 and 8. 98. H. L. A. Hart, The Concept of Law (Clarendon Press: Oxford, 1961) at 32.

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rather provides a discretionary mandate to undertake executive action. Similarly, Article 24 vesting the Security Council with the ‘primary responsibility for the maintenance of international peace and security’ has not been interpreted as imposing an obligation upon the Security Council or its members to exercise that responsibility in preordained ways. Second, grounding authority on the capacity to protect has historically tended to privilege certain kinds of institutions and certain forms of action over others. To characterise a situation as one of civil war or anarchy is to register the absence of some preconceived form of integrative force.99 The turn to protection focuses upon conjuring up that integrative force, and thus moves towards creating institutions that privilege coherence, control and centralisation. In that sense, to invoke protection as the ‘raison d’être of the state’ is to be in a complicated relation to a long tradition of absolutist theories of statehood that have looked to protective authority as the solution to civil war or revolution.100 Authority justified in terms of its capacity to guarantee protection has historically had a tendency to become authoritarian. It might seem extreme to suggest that there could be any relation between those forms of authoritarian rule and the benign ambitions of the responsibility to protect concept. Yet the responsibility to protect literature to date has been concerned with creating more expansive early-warning capabilities and fact-finding mechanisms, and ensuring that decisions about the use of force can be made quickly and efficiently. There is little discussion to date of the limits to the actions that the international community can properly take in the name of protecting populations at risk. To take one example, the prospect of increased surveillance of foreign populations has been welcomed as a contribution to realising the promise that never again will genocide be allowed to occur, without any discussion of the threats that may pose to civil liberties or self-determination. Third, justifying authority on the basis of the capacity to protect raises a new question: who decides? Despite its authoritarian tendencies, the turn to protection as the foundation of authority does not have a predetermined political effect. To argue that the capacity to protect grounds legitimate authority is itself a normative claim. De facto authority, the capacity to protect in fact, is only perceived as giving legitimacy to power where protection itself is invested with a normative value. Differences in the nature of that underlying normative claim give rise to important differences in the project of creating institutions that can 99. Keith Tribe, Strategies of Economic Order: German Economic Discourse 1750-1950 (Cambridge University Press, 1995) at 199. 100. See Thomas Hobbes, Leviathan (first published 1651) (J.C.A. Gaskin ed., Oxford University Press, 2006); Carl Schmitt, The Concept of the Political (first published 1923) (translated by George Schwab, University of Chicago Press: Chicago and London, 1996); Carl Schmitt, The Leviathan in the State Theory of Thomas Hobbes: Meaning and Failure of a Political Symbol (first published 1938) (translated by George Schwab and Erna Hilfstein, Greenwood Press: Westport, 1996).

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realise protection in this world. Who then decides what protection will mean in a particular time and place, how it can be realised and which claimant to authority is able to provide it? These are questions that go to the very heart of politics. The responsibility to protect concept condemns the tyranny of dictators or warlords from the position or viewpoint of the people and their material interests—that is, their need for protection. Yet it does not propose to vest the power to decide what protection requires with the people, or at least not immediately. The responsibility to protect concept vests the capacity to determine that a state has ‘manifestly’ failed to guarantee protection, along with the capacity to determine what protection means in a particular time and place, with representatives of the ‘international community’. Again, the implications of this are illustrated by events in the Middle East, where many different political and military projects were justified in terms of protecting civilians. In the context of Libya, it was NATO, a regional organisation representing Western Europe and North America, that for much of 2011 exercised the power to make decisions about how protection can best be realised in North Africa, and by whom. Finally, much of the focus, critical and otherwise, in the debate over the responsibility to protect concept has remained on the drama of military intervention. There has been much less critical attention paid to the far more prosaic and everyday practices involved in the institutional work of international administration.101 Yet it is in these routine practices – of surveillance, prevention, policing and administration – that the political effects of the responsibility to protect concept will be determined.

6. Conclusion In a 1951 article addressing the potential scope of the Charter provisions relating to the political authority of the Secretary-General, Stephen Schwebel presciently commented: Perhaps it is not too much to suggest that, as the development of the great national civil services profoundly affected the national histories of the nineteenth and twentieth centuries, so the growth of the powers of the international executive may in time influence the future course of world affairs.102 101. On the significance of administration as a form of rule, see further Anne Orford, ‘International Territorial Administration and the Management of Decolonization’, 59 International and Comparative Law Quarterly (2010) 227-249. For the related argument that in the domestic context critical attention has tended to focus on the ‘dramatic or even theatrical contexts surrounding police work’ rather than ‘the silent grinding of administrative mills (as in cataloguing, normalizing, data collection and classifying)’, see Klaus Mladek, ‘Introduction’, in Klaus Mladek (ed.), Police Forces: A Cultural History of an Institution (Palgrave Macmillan: New York, 2007) 1-9 at 5. 102. Stephen M. Schwebel, ‘The Origins and Development of Article 99 of the Charter’, 28 British

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For UN legal counsel Oscar Schachter, writing after Hammarskjöld’s death, the expansion of ‘executive action’ was ‘widely regarded as constituting a major feature’ of Hammarskjöld’s ‘political legacy’.103 Today, we seem to have lost the awareness of the radical potential of international executive rule articulated by Schwebel, Schachter and other international lawyers of their generation. Until the beginning of the twenty-first century, there was no account of authority in international law that was adequate to the task of understanding the expansion of international executive rule during the intervening half-century and integrating it into international legal doctrine. The emergence of the responsibility protect concept offers such an account. The responsibility to protect concept is an attempt, both institutionally and conceptually, to consolidate the forms of authority that have emerged in the decolonised world through the expansion of executive action and to offer a coherent theoretical account for the form of international authority to which those practices have given rise. It is for these reasons that the articulation and embrace of the responsibility to protect concept represents one of the most significant normative shifts in international relations since the creation of the UN in 1945.

Year Book of International Law (1951) 371-382 at 382. 103. Oscar Schachter, ‘Dag Hammarskjöld and the Relation of Law to Politics’, 56 American Journal of International Law (1962) 1-8 at 8.

The Future of the International Criminal Court in African Crisis and Its Relationship with the R2P Project Kofi Quashigah* AbstrAct: The article focuses on the activities and reception of the International Criminal Court in the continent that thus far has most eagerly welcomed its ideals; Africa. The trajectory charted is one which starts from a note of extreme enthusiasm from states’ leaders to civil society alike, to one of disaffection and disillusionment due to the discriminate nature of the application of universal jurisdiction hinting at a an attempt towards new forms of colonialism. This has resulted in the discussions noted concerning an African alternative to the ICC. The article concludes that even with possible emergence of an African alternative to the ICC in the form of the expanded functions of the African Court of Human and Peoples’ Rights, the future of the ICC and R2P in Africa will centre on the co-operation of the States of the continent, which in turn necessitates that the future conduct of the ICC, nor the invocation of R2P, does not continue on its trajectory of African alienation. Keywords: R2P, ICC-AU relations, ICC-Africa relations, African Court of Human and Peoples’ Rights, neo-colonialism, peace versus justice

1. The AU Efforts for the Elimination of Instability and Conflicts and R2P African leaders through the AU have demonstrated the awareness that conflicts in Africa are not the best for the image of the continent and the quality of life of its people. Various conscious efforts are being made to at least in principle remind themselves of the need to prevent – and where necessary deal with - the situations. Even the Council of the European Union recognizes that: It is worth noting that the commitment on the part of AU Member States to fighting impunity for serious crimes of international concern, clearly signaled *

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In addition to indications at the AU level, various examples exist at the national level to show Africa’s commitment to the prevention of various forms of crimes abhorrent to the international community; some countries such as South Africa and Sierra Leone have utilized the Truth and Reconciliation mechanism; Ethiopia tried former officials of the Mengistu Regime; Rwanda, in addition to the trials at the International Criminal Tribunal For Rwanda (ICTR) adopted the indigenous trial system known as the gacaca; the Juba Agreement (29 June 2007) between the Republic of Uganda and the Lord’s Resistance Army envisaged the establishment of a unit for carrying out investigations and prosecution of individuals alleged to have planned and carried out widespread systematic or serious attacks directed against civilians or to have committed grave breaches of the Geneva Conventions.2 In addition, there are even other indications pointing to Africa’s commitment to stamping out impunity; the AU is noted as the regional bloc with the largest number of states parties to the Rome Statute.3

2. The Link of R2P to the ICC The International Commission on Intervention and State Sovereignty (ICISS) extended the responsibility to protect to also imply the responsibility to react. This means, according to the ICISS that: when preventive measures fail to resolve or contain the situation and when a state is unable or unwilling to redress the situation, then interventionary measures by other members of the broader community of states may be required. These coercive measures may include political, economic or judicial measures, and in extreme cases- but only extreme cases – they may also include military action.4

Indeed the ICISS included among the suggested list of ‘direct prevention efforts’ or measures the resort to subjecting perpetrators to international legal sanctions as a ‘major new weapon in the international preventive armoury’.5 1. 2.

3. 4. 5.

The AU-EU Technical Ad hoc Expert Group Report on the Principle of Universal Jurisdiction, Coucil of the European Union 8672/1/09 Rev.1 Annex, 4 February 2009, at Annex para. 3. See the Annexure of 19 February 2008 to the Agreement of 29 June 2007 on Accountability and Reconciliation between the Government of the Republic of Uganda and the Lord’s Resistance Army/Movement, (visited 9 July 2012). 31 AU member States are State parties to the Rome Statute. ICISS, The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (International Development Research Centre: Ottawa, 2001) at 29. Ibid at 24.

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First in this category are the specialist tribunals to deal with war crimes committed in the former Yugoslavia, Rwanda and Sierra Leone. The second category is the establishment of the ICC which the ICISS had hoped would be a welcome ‘measure to avoid the accusations of double standards, or “victor’s justice”, which are periodically aimed at the specialist tribunals’.6 R2P is intended to bring an end to the incidence of human atrocities that follow upon conflicts that erupt from time to time. It is intended to prevent such crimes as genocide, war crimes and crimes against humanity; these are the core concerns of the ICC as well. The connection has been very beautifully captured by the Centre for International Human Rights, of the Northwestern University School of Law, as thus: As R2P is a mechanism concerned with prevention, protection, and rebuilding in situations of widespread atrocities, so too is the ICC focused on deterrence, hostility, cessation, and reconciliation in those same kinds of situations.7

By extension the judicial action may also extend to the principle of universal jurisdiction as well as the authority of the ICC to indict and prosecute individuals suspected of involvement in the crimes of genocide, crimes against humanity and war crimes. The ICC was established by states as one of the measures to address the continuing prevalence of ‘unimaginable atrocities that deeply shock the conscience of humanity’.8 These grave crimes such as genocide, crimes against humanity and war crimes have become recognized as ‘grave crimes that threaten the peace, security and well-being of the world.’9 There was the resolve of the states that these serious crimes ‘must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international co-operation’.10 All these are aimed at bringing an ‘end to impunity for the perpetrators of these crimes and thus contribute to the prevention of such crimes’.11 It is in this determination and aspiration to prevent the recurrence of the atrocities and such crimes that we perceive the necessary connection of the ICC as a relevant actor in the scheme of things in respect of the R2P.

6. 7.

Ibid. Kelley Whitley, The Responsibility to Protect and the International Criminal Court: America’s New Priorities, Conference Report, March 2008 (visited 9 July 2012), at 13. 8. see preamble to the Rome Statute of the International Criminal Court, 17 July 1998, in force 1 July 2002, 37 ILM 1002. 9. Ibid. 10. Ibid. 11. Ibid.

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3. Africa’s Reception of the ICC Africa’s enthusiasm towards the ideals of the ICC is reflected, at least to some extent, in the number of African countries that either signed and/or ratified the Rome Statute. It is from Africa that the ICC had so far received invitations for the exercise of its jurisdiction; Uganda referred the situation concerning Northern Uganda to the ICC in December 2003. In April 2004, the Democratic Republic of the Congo (DRC) referred the situation of crimes within the jurisdiction of the Court committed anywhere in the territory of the DRC since 1 July 200212; in January 2005 the Central African Republic referred the situation of crimes within the jurisdiction of the Court committed anywhere in the territory of the Central African Republic since 1 July 2002. The fact is therefore that ‘African states remain to date the only states to have referred situations to the Court.’13 Again Cote d’Ivoire, another African state, ‘became the first non-state14 party to accept the exercise of jurisdiction by the Court under article 12(3) of the Statute.’15 Africa’s reception of the ICC started on a note of extreme enthusiasm from both its leadership, civil society groups and individuals. Yet, a few years along the line opinion in Africa on the ICC can be classified into two broad categories. The first is one of complete disillusionment with the ICC, holding it as being insensitive to other approaches to peaceful resolution of conflicts on the continent. The second category on the other hand insists on a tough line approach by the ICC. For those of us interested in the R2P and whichever way one looks at it, the preferred approach should be a pragmatic one, that seeks to answer the following types of questions: which strategy would better serve the course of the prevention of the abuse of human rights? Which of them would better serve the immediate and long-term interests of the voiceless who really bear the brunt of our ideas, decisions and idiosyncrasies? This is what some have reduced into the equation of peace versus justice. Without doubt it is the approach that balances peace with justice that should attract our attention. 12. All four of the occupants of the ICC Detention centre are Congolese: Thomas Lubanga, Mathieu Ndudjalo Chui, Germain Katanga, Jean Pierre Bemba Gombo. see Olivier Kambala wa Kambala, ‘International Criminal Court in Africa: “Alea Jacta Est”’ 13 July 2010 < africanarguments.org/2010/07/13/international-criminal-court-in-africa-“alea-jacta-est”/> (visited 9 July 2012). 13. The AU-EU Technical Ad hoc Expert Group Report, supra note 1. 14. Non-state party in the sense that although Cote d’Ivoire as a state did not ratify the Rome Statute it nevertheless accepted the ICC to investigate matters within the country. 15. Ibid. At the time of proof reading this paper for publication the former President of Cote d’Ivoire, Laurent Gbagbo had been handed over to the ICC to face charges for alleged atrocities committed as a consequence of disputed elections that saw him out of power.

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4. ICC Activities in Africa and the General Disaffection of the AU with the Indiscriminate Application of Universal Jurisdiction The Chief prosecutor of the ICC Luis Moreno-Ocampo seemed to have disturbed the hornet nest when on 14 July 2008 he requested the ICC to indict President Omar Hassan Al-Bashir of Sudan on charges of genocide, crimes against humanity and war crimes committed in the Darfur region of the Sudan. On 3 March 2009, the judges of the ICC confirmed an arrest warrant against President Al-Bashir on charges of crimes against humanity and war crimes.16 It was expected, as the ICISS had conjectured that the establishment of the ICC would allay the fears of selectivity that is leveled against other international interventions such as the specific criminal tribunals. The complaints of African leaders against the increasing resort to the principle of universal jurisdiction by European Courts was what led to the establishment of an AU-EU Advisory Technical Ad hoc Expert Group in 2009. At the 10th and 11th meeting of the AU-EU Ministerial Troika the issue of universal jurisdiction in the context of the relationship between the AU and the EU was addressed and an agreement was reached to set up an ad hoc expert group to clarify the respective understanding on the African and EU side on the principle of universal jurisdiction. Accordingly an Advisory Technical Ad hoc Expert Group was constituted by both the AU and EU in January 2009. At the sitting of the Group, the concerns of the AU with respect to the exercise of universal jurisdiction was put across as follows: African States take the view that they have been singularly targeted in the indictment and arrest of their officials and that the exercise of universal jurisdiction by European States is politically selective against them. This raises a concern over double standards, and the concern is heightened by multiple charges being brought against officials of African States in the jurisdictions of different European States. Indictments issued against foreign state officials exercising representative functions on behalf of their states by low-level judges, often sitting alone without the benefit of collective knowledge and decision-making in judicial terms, tend to undermine the dignity of the state officials concerned and put at risk friendly relations between sovereign states. Public issuance of indictments and warrants of arrest on an ex parte basis, instead of a summons to appear or equivalent measure not entailing the arrest of the addressee, of those sitting officials of African states entitled to personal and functional 16. See Mary Kimani, ‘Pursuit of Justice or Western Plot? International Indictments Stir Angry Debate,’ 25 November 2009 < allafrica.com/stories/200911270812.html> (visited 9 July 2012).

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In other words, African leaders have come to perceive the indiscriminate use of universal jurisdiction against sitting officials and also by the ICC as a reemergence of colonialism

5. The AU Response and Proposals for an African Alternative to the ICC As of October 2010, 31 of the 52 African countries have either ratified or acceded to the Rome Statute, which is a significant testimony of African support for the ICC project. Unfortunately, following the indictment of Al Bashir, there have been calls for de-ratification by African nations. It was reported that prior to the AU Assembly meeting in Addis Ababa on 8-9 of June 2009, there was lobbying from several African countries including Senegal, Djibouti and Comoros for a mass withdrawal from the court in protest against allegations that the court targets Africa. However, the AU Assembly meeting rather reaffirmed its commitment to the Rome Statute and to the fight against impunity. At its meeting at Sirte in July 2009 the Assembly of the AU expressed its deep indignation at the indictment issued by the Pre-Trial Chamber of the ICC against President Al Bashir. It further made clear its deep fears about what it described as ‘the unfortunate consequences that the indictment has had on the delicate peace processes underway in The Sudan and the fact that it continues to undermine the ongoing efforts aimed at facilitating the early resolution of the conflict in Darfur.’17 These open expressions of disaffection notwithstanding the AU is always quick to remind all of its ‘unflinching commitment of Member States to combating impunity and promoting democracy, rule of law and good governance throughout the continent, in conformity with the Constitutive Act of the African Union.’18 17. Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court (ICC), AU Doc. Assembly/AU/13(XIII), 3 July 2009. 18. Ibid.

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This was its stated position even while at the same time it bemoaned the failure of the UN Security Council to act on its request to defer the proceedings initiated against President Al Bashir in accordance with Article 16 of the Rome Statute of the ICC leading the AU to declare its decision not to ‘cooperate pursuant to the provisions of Article 98 of the Rome Statute of the ICC relating to immunities, for the arrest and surrender of President Omar El Bashir of The Sudan.’19 The indictment of the President of Sudan has particularly turned the tide against the ICC among the African leaders who argued that ‘the search for justice should be pursued in a way that does not impede or jeopardize efforts aimed at promoting lasting peace’.20 They were equally not enthralled with the ‘manner in which the prosecution against President Bashir has been conducted, the publicityseeking approach of the ICC prosecutor’.21 Further, frustration was felt due to the perception of the ICC’s over concentration on Africa; this can be sensed clearly in the words of Jean Ping, President of the AU Commission, who stated and asked that the ‘ICC always targets ... Africans – Does it mean that you have nothing on Gaza? Does it mean that you have nothing on the militants in Columbia? There is nothing on Iraq?’22 And for President Kagame of Rwanda the ICC ‘has been put in place only for African countries, only for poor countries.’23 Whether justified or not, there is anger and bewilderment among African leaders; and it is this anger and bewilderment that has replaced the enthusiasm that was their initial attitude towards the ICC. This anger seemed to have been compounded when the Security Council declined to exercise its powers under Article 16 of the ICC statute to defer the investigation or prosecution at the request of the AU. This was amplified to even a greater degree by the fact that three of the permanent members of the Security Council, China, Russia and the USA have not ratified the Rome Statute and are not likely to allow their citizens to be indicted under the Rome Statute. On the other hand those who dispute the allegations of double standards contend that African leaders remained silent when rebel leaders of the Congo and the LRA of Uganda were indicted. It is possible to marshal very strong views in favour of the ICC’s activities in Africa and at the same time proffer equally strong views on the political incorrectness of the ICC’s stance on Al-Bashir particularly at the time that it happened. The reality is that the ICC has lost the good-will and thus cooperation of the AU. Clearly the seeds of disaffection with the ICC were sown resulting in the adoption of AU Assembly DecISION 213 (XII) in February 2009, a determinative 19. 20. 21. 22. 23.

Ibid. Kimani, ‘Pursuit of Justice or Western Plot?’ supra note 16. Ibid. Ibid. Ibid.

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document from the point of view of future ICC-AU and ICC-African events relations. The said Decision mandated the AU Commission, in consultation with the African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights to examine the implications of the African Court ‘being empowered to international crimes such as genocide, crimes against humanity and war crimes and to report thereon to the Assembly in 2010.’24 At its meeting of 3 July 2009 in Sirtethe AU re-echoed its decision for consideration to be given to the expansion of the jurisdiction of the African Court of Justice and Human Rights. According to the afore mentioned decision, the AU: REQUESTS the Commission to ensure the early implementation of Decision Assembly/Dec.213(XII), adopted in February 2009 mandating the Commission, in consultation with the African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights to examine the implications of the Court being empowered to try serious crimes of international concern such as genocide, crimes against humanity and war crimes, which would be complementary to national jurisdiction and processes for fighting impunity.25

The very next paragraph of the Decision evinces the intention to encourage national jurisdictions as the points of first call while the African Court would come in only when there is failure or inability to prosecute at the national level. According to that Decision the AU Assembly: ENCOURAGES Member States to initiate programmes of cooperation and capacity building to enhance the capacity of legal personnel in their respective countries regarding the drafting and safety of model legislation dealing with serious crimes of international concern, training of members of the police and the judiciary, and the strengthening of cooperation amongst judicial and investigative agencies.26

The grand scheme seemed to have been hatched to create an African parallel of the ICC. If the same enthusiasm with which African states heralded the ICC is transferred to the proposed African initiative then it will not be too long before concrete steps are taken to expedite the expansion of the jurisdiction of the African Court of Justice and Human Rights. Indeed, a Draft Protocol on Amendments to the Protocol on Statute of the African Court of Justice and Human Rights has been put together and subjected to a second validation at a workshop on the Expansion of Jurisdiction of the African Court of Justice and Human Rights, between 8-12 November 2010 at Midrand, South Africa.27 At the same valida24. Decision on the Implementation of the Assembly Decision on the Abuse of the Principle of Universal Jurisdiction AU Doc. Assembly/AU/Dec.213(XII), 4 February 2009, para. 9. 25. Decision on the Meeting of African States Parties, supra note 17. 26. Ibid para. 6. 27. Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights: Revision of November 2010, Incorporating the Final Concensus of the Second Validation Workshop, < www.africancourtcoalition.org/images/docs/legal-texts/

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tion workshop the Protocol of the Pan African Parliament that aims to transform the Pan African Parliament from an advisory body to a legislative body was also subjected to a second validation. It is reported that the findings of the workshops are expected to go to a conference of African government and legal experts, and then to a Conference of African Ministers of Justice before submission to the Policy Organs of the African Union for adoption.28

6. Future of the ICC in African Crisis The facts attest that the limited success of the ICC so far is due to the initial cooperation that it had had from African States. As has been authoritatively stated ‘positive international law recognizes no hierarchy among the various bases of jurisdiction that it permits.’29 By expanding the jurisdiction of the African Court of Justice and Human Rights to cover crimes that are already within the ambit of the jurisdiction of the ICC, the AU cannot be seen to have succeeded in cutting out the jurisdiction of the ICC. As rightly pointed out in the opinion of African NGOs the creation of a regional criminal jurisdiction for and by Africa would not eliminate the existing bases of jurisdiction for international crimes nor diminish the prerogative of any states wishing to assert them. Nevertheless, the ICC will require the confidence and collective collaboration of a majority of African States if it is to achieve any measure of success on the continent. It is important that the ICC learns from the opinion of the ICISS that ‘conflict prevention measures, like other forms of assistance are always best implemented when based on detailed knowledge and understanding and maximum possible cooperation between helpers and those helped.’30 The United Nations Security Council could refer a situation to the ICC under Article 16 of the Rome Statute; when that happens, the ICC has unlimited competence in terms of place of commission of the offense or the nationality of the offender. Yet, even then to succeed in its enterprise the ICC will need the full cooperation of states concerned. As was noted at the Northwestern Law Conference. The ICC as currently conceived, lacks a standing mechanism dedicated to ensuring compliance with its judgments. Rather it relies on the governments in the countries in which it is investigating to provide for the enforcement assis-

draft_protocol_-_court_of_justice_and_hr_-_en_-_final_midrand_consensus.pdf> (visited 9 July 2012). 28. Ibid. 29. The AU-EU Technical Ad hoc Expert Group Report, supra note 1 at para 14. 30. ICISS, The Responsibility to Protect, supra note 4, at para. 3.20

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tance it needs, which include protecting its investigators and witnesses, collecting evidence and assisting suspects.31 There are those that believe that the decision to expand the jurisdiction of the African Court of Justice and Human Rights to cover criminal offences would rather complicate things; according to an opinion presented by a group of concerned African NGOs, an extension of the jurisdiction of the Court would create a regional African exceptionalism to international criminal law and international justice, ultimately damaging the credibility and effectiveness of Africa’s regional human rights system. In the space between an African exceptionalism and an ineffectual regional system on African impunity gap could become institutionalized rendering international criminal law irrelevant to Africa.32

NGOs may continue their support for the ICC but it takes cooperation from state actors to make it effective. The ICC was born out of a political expediency and it is that which should shape its direction and relevance.

7. Conclusion: The Future of R2P in Africa In line with states’ responsibility under the R2P to protect and rebuild, African States will continue to have the responsibility to cooperate with the ICC to arrest and handover any person indicted for trial. However, should the desire of the AU to expand the jurisdiction of the African Court of Justice and Human Rights materialize, the enthusiasm with which African nations greeted the ICC would have been shifted to the former. Cooperation from states concerned is essential for the effective functioning of the ICC. That being the case the ICC needs to take into account this unavoidable fact and balance its actions so as not to jeopardize the possibility of cooperation. It is for this reason that some pragmatists have questioned the approach of the ICC in its intended prosecutions in Africa particularly within active conflict regions. The inherent question that one can discern from the debate about ICC activities in Africa hinges on whether the prosecutor should or should not have regard to

31. Whitley, Reponsibility to Protect, supra note 7, at 20. 32. The Coalition for an effective African Court on Human and Peoples’ Rights (CEAC); Darfur Consortium; East African Law Society, (EALS); International Criminal Law Centre, Open University of Tanzania; Open Society Justice Initiative; Pan-African Lawyers Union, PALU; Southern Africa Litigation Centre, SALC; and West African Bar Association WABA, ‘Implications of the African Court of Human and Peoples’ Rights Being Empowered to Try International Crimes such as Genocide, Crimes Against Humanity, and War Crimes: An opinion’ (visited 9 July 2012).

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the delicate balance between peace and justice? Following closely this question is therefore the issue of timing; i.e. when is the appropriate time to prefer charges? If the unenviable record of Africa as the continent with the most number of conflicts and as the region more likely to spawn cases that would be of relevance to the ICC is anything to work with, then an open or tacit withdrawal of cooperation from African States could affect the ICC’s credibility and importance. Even without the ICC, Africa seems to have woken up to the reality of the need to take actions that would remove it from incessant circles of political instabilities often degenerating into armed conflicts which in turn breed the crimes that come within the jurisdictional purview of the ICC. It is possible to foresee the R2P becoming a strong theoretical basis for the AU initiatives in the sustenance of peace in Africa. Unfortunately what we see now is an ICC that is becoming increasingly alienated from Africa. The expressed intent of the Constitutive Act of the African Union and the initial enthusiasm with which the ICC idea and ratification was embraced all point to just one fact, which is the desire to promote peace and the good life on the continent. By extension, if it is peace and the prohibition of abuse of human beings that the R2P stands for, then it goes without saying that even without the ICC Africa wants to work for the realization of the objectives of the R2P.

Lessons from the ICC for ICC/R2P Convergence Benjamin N. Schiff* AbstrAct: The International Criminal Court (ICC) and the UN’s Responsibility to Protect (R2P) norm resemble each other in their focus on atrocity crimes, their broad purviews, and the difficulty of their implementation. Both can be considered experimental organizational innovations and both are in the process of seeking to build legitimacy. Although related, the ICC’s legal-judicial structure and R2P’s essentially political basis imply distinct roles and potentially problematic overlaps. For both, there will be some organizational tendency to develop activities in areas of least resistance, such as judicial assistance for the ICC and local mediation for R2P. In their joint concerns for establishing ruleof-law, they may come to overlap. Similarly, at the more controversial end of the operational spectrum, the ICC Prosecutor’s warnings of possible criminality and R2P-inspired interventions against atrocities could be related. Building connections between two uncertain organizational manifestations could imperil rather than improve their chances for success. Keywords: International Criminal Court, United Nations Responsibility to Protect, international organization evolution, atrocity crimes, sovereignty

It has been about nine years since the ICC began operating as a court. During that time, its staff has grown from a handful of people to more than 800, it has initiated investigations, begun trials, and received two referrals of conflict situations from the UN Security Council. It continues to receive and pursue allegations of atrocity crimes committed in a variety of locations and connected with a range of conflict situations. This essay focuses on three lessons from ICC experience that can inform consideration of the relationship between the Court and the emerging Responsibility to Protect. These lessons are 1) even clear mandates are hard to implement, and the ICC’s mandate and that of R2P are broad and potentially expansive; 2) organizations tend to evolve in the direction of least resistance – which may not be bad (by resistance I mean the resistance constituted by the protection of state *

Professor of Politics, Oberlin College.

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sovereignty); and 3) legitimacy rests significantly – although not completely – on implementation.

1. Mandate The ICC was established to implement the norm of anti-impunity for perpetrators of atrocity crimes. But this mandate is quite broad, encompassing compromises made in the Statute negotiations and reflecting multiple objectives states and NGOs hold dear in the area of international criminal law, including: – retributive justice; – restorative justice; – protection of sovereignty; – peace and justice; – positive complementarity (assisting the establishment, restoration, and implementation of the rule of law especially for crimes under the Statute’s purview). Successful pursuit of these objectives requires states’ cooperation, so the clash between the Court’s prerogatives and state sovereignty is not solved – it is managed by the complementarity doctrine, with states having the final word on cooperation, and mechanisms of the judicial chambers limiting the freedom of the Court’s prosecutor.

2. Organizations Tend to Evolve in the Direction of Least Resistance The mandate of the ICC sets up a competition for resources. As the Court experiences difficulties with its primary – retributive – mission, it will find other things to do. The current popularity of ‘positive complementarity’ – at least among commentators, if not within the Court itself – might be an indicator of this tendency. We can think of organizations running what in effect are experiments as they seek to carry out their mandates. The breadth or lack of clarity of a mandate encourages this experimentation and we can expect organizations to repeat successful experiments – that is, tend to do the doable, the relatively uncontroversial, even the visibly successful. This isn’t necessarily bad, of course, but it does tend to make organizations appear timid.

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3. Even with Consensus over the General Mandate, Implementation is Difficult and Error-prone but Highly Consequential for the Organization’s Legitimacy. To continue the experimentation metaphor, organizational experimental outcomes depend on: – experimental conditions; – the experimental apparatus; – the experimenters’ skills. The ICC – and R2P – operates in the very difficult experimental conditions of ongoing large-scale conflict, pursuing individuals who generally cannot be expected to be cooperative with or submit to the court. The problems of gaining state cooperation, gathering evidence, apprehending suspects, maintaining support for the Court against political opposition to its investigations, and differences over the balances to be struck among legal values and the imperatives of expediency when objectives of justice and peace appear to clash all show how difficult these experiments are. The ICC’s tools of experimentation are awkward. The Court’s tripartite internal structure, limited resources, varying support from its Assembly of States Parties, officials chosen by political bargaining and not necessarily on the basis of their technical abilities, are flaws in a politically designed apparatus that cannot easily be modified. The experimenters may not be the most adroit. Especially the Prosecutor of the ICC has been widely criticized for decisions made regarding case selection, choice of charges against suspects, the quality of investigations, and conformity with disclosure rules. The Pre-trial Chambers have contended with the Office of the Prosecutor (OTP), with each side winning some battles before the Appeals Chamber. The whole process has been agonizingly slow. The Rome Statute remains generally well regarded, but implementation may not be optimally building support for the Court, as is most starkly shown in the African Union’s refusal to cooperate with warrants for the arrest of Sudan’s President Omar Al-Bashir.

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4. Lessons for the Responsibility to Protect and R2P/ICC Convergence 4.1. Even Clear Mandates Remain Hard to Implement Just as the ICC may pursue a range of activities – from legal aid to direct prosecution – a broad range of activities (even breaking down further the general categories of prevention, early warning, intervention) may be justified under R2P. Development of R2P could help formalize the UNSC-ICC referral process, but this would also draw the ICC further into the orbit of the UN and thus possibly and deleteriously connect ICC legitimacy to UNSC/UNGA legitimacy. Moreover, the more the Prosecutor issues statements of warning to potential miscreants in conflict situations – making clear that he’s watching for commission of crimes under the ICC Statute – the more clouded his role becomes insofar as it can be divided between a political (R2P) role and a judicial (ICC) role. Perhaps it would be more desirable from the ICC institutional standpoint if spokespeople for R2P invoked the possibility of ICC referral and investigation rather than the ICC Prosecutor declaiming upon potential law-breaking. Because both the ICC and the UN implementation of R2P cover broad ranges of potential activities, there can be synergies and overlaps; however, they are at base rather different activities in that the ICC is intended to be a primarily legaljudicial mechanism while R2P articulates a quintessentially political set of norms.

4.2. Organizations Evolve in the Direction of Least Resistance For the ICC, this means two things. First, the OTP can make public statements with low immediate cost (for instance, warning against commission of Statute crimes). Second, it can possibly reduce its emphasis on the difficult tasks of investigation and trial and toward fulfilling the somewhat more easily fulfilled tasks associated with supporting victims and the rule of law. The analogs for R2P are prevention (that could include local mediation, even economic development efforts), and early warning activities – worthy enterprises that would no doubt be less costly in the long run (especially if successful) than armed or other major intervention later in the course of conflict events. If ruleof-law related activities were to be included here, especially with regard to ICC Statute crimes, ICC and R2P efforts could well overlap. For conflict resolution and early warning tasks, however, the two should remain quite distinct.

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4.3 Legitimacy Rests on Implementation The ICC is still struggling to establish itself. The same is true of what Ed Luck called the ‘mainstreaming’ of R2P within the United Nations. The latter, by virtue of its diffused nature within the UN, is a less obvious organizational target for critics, so it is perhaps more protected from scrutiny. The ICC is a new organization seeking to implement norms that have been developing for 150 years. Its interlocutors may give it some room to carry out its experiments. However, especially the AU response indicates that the implementation choices its officials make can have rapid and important consequences; the experiments must be carried out carefully. In contrast, R2P might be thought of as a rather new normative articulation being built into an old – and somewhat problematic – organization, the United Nations. Starting quietly and building up from within the organization might be a better strategy for gradual legitimacy-building than overt institutionalization and highly public initiatives. Similarly, a declared link between the ICC and R2P could add uncertainties to both rather than increasing the likelihood of either’s success.

Introductory Note John D. Haskell* and Paavo Kotiaho** On 10 March 2011, the International University College of Turin (IUC), in conjunction with UniNomade 2.0, hosted a debate between Professors Antonio Negri and Gunther Teubner titled ‘The Law of the Common: Globalization, property and new horizons of liberation.’ The central question the debate - as well as the workshop that followed - sought to answer was whether we can: Start contriving real legal institutions that extend the Law of the Common, while hinting at a new programmatic perspective, at a radical alternative to capitalism from within the global crisis?

The debate was an intimate event, the audience primarily students from the IUC and a small gathering of scholars and practitioners. The debate commenced with introductory presentations from Ugo Mattei and Sandro Mezzadra, followed by two rounds of debate between the two key speakers, as well as discussant remarks from Peppe Allegri, Adalgiso Amendola, Alessandro Arienzo, Sandro Chignola, Pasquale Femia, Costanza Margiotta, Paola Napoli, Riccardo Prandini, Marco Silvestri, and Leo Spech. What are reproduced in the following pages are the edited transcripts of the exchange between the two key speakers; Professor Gunther Teubner on ‘Societal Constitutionalism and the Politics of the Common’, and Professor Antonio Negri on the ‘Law of the Common’ (translation by Pietro Antonio Messina). The Finnish Yearbook of International Law is honoured to be able to publish this timely debate exploring issues critical to and of our discipline, continuing its own effort in promoting novel, theoretically minded scholarship of the highest standard.

* **

Assistant Director, Institute for the study of Political Economy and Law (IPEL), Fulbright Fellow, Eric Castrén Institute of International Law and Human Rights. Executive Editor, Finnish Yearbook of International Law & Research Fellow, The Erik Castrén Institute of International Law and Human Rights, University of Helsinki.

Societal Constitutionalism and the Politics of the Common Gunther Teubner* In the introductory paper to this event, Sandro Mezzadra poses precise questions, which make it possible to identify convergences and divergences of the two readings of global law presented by Antonio Negri and myself. I will address each question and formulate tentative answers.

1. Question One: What is the Future for the Public-Private Divide? Both approaches (that of A. Negri and my own) insist on a fundamental critique of the private/public distinction. For A. Negri, the crisis of modern society is due to the divide of private property and public property in capitalism. My starting point is the inadequacy of the distinction between a private and a public sector and between private and public law. The problem is, however, how to displace the distinction and how to replace it. Social theorists have again and again analysed the breakdown of the boundary between state and society, but what they offer instead is a total politicisation of the entire society. Similarly, the distinction between public law and private law has been attacked by numerous legal scholars, but has been substituted by the vague assertion that private law is pervasively political. Negri takes a different road. He criticizes private property as well as public property, insofar as the latter is understood as the property of the state, and replaces the distinction by one concept: the common. My argument starts with the obvious observation that the current distinction between the public and the private sector is an oversimplified account of contemporary society. More controversially, my argument continues that any idea of a fusion of the public and private spheres, which is argued by many critical scholars, among them A. Negri, is equally inadequate. I propose to take the opposite direction of a fusion: the public/private divide should be replaced by *

IUC Torino and Frankfurt University.

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polycontexturality. The claim is this: contemporary social discourses and practices can no longer be analysed by a single binary distinction; the fragmentation of society into a multitude of social worlds of meaning requires a multitude of perspectives of self-description. Consequently, the simple distinction state/society, which translates into law as public law vs. private law, needs to be substituted by a multiplicity of social perspectives, which are simultaneously reflected in the law. The distinction between private law and public law needs neither its destruction nor its fusion, rather its Aufhebung. In the first step, it needs to be dissolved and to be replaced by law’s elective affinity to a plurality of discourses, or contexts, such as intimacy, health, education, science, religion, art, and media. This would lead to a thoroughgoing reflection within law of the distinctive ‘eigenlogics’ of these various realms of discourse. The point is to liberate the law from the simplistic public/private divide, which means simultaneously not only to de-economize it, but also to depoliticize it; to distance it not only from the private sector, but also from the public sector. In the last century, legal doctrine had to adapt to the double Great Transformation, the victorious imperialism of both the economic and the political system, which had divided the social world into two great spheres of influence. On the one side, economic action developed totalising tendencies in its society-wide expansion, and transformed non-commercial social relations (e.g. the relationships of the classical professions to their clients) into profitoriented economic relations. Law followed this ongoing commodification of the social world, sometimes reluctantly, always obediently. On the other side, there was the apparently unstoppable growth of the welfare state, transforming many social activities into public sector services. Accordingly, law abdicated its responsibilities for the legal regulation of these social activities in favour of state policies. And this erroneous dualism has been the common starting point for the great influential ideologies, liberalism and Marxism, in their countless variations and combinations, including social democracy and New Labour. Accordingly, the debate is then only about whether law should reflect either economic efficiency or governmental policies, either principles of economic autonomy or of political intervention. And even after the financial crisis, we are faced with another round in this oscillation, after neo-liberal de-regulation now back to a renewed state interventionism. Tertium non datur? Both political ideologies have assisted in creating legal institutions which stress, albeit in different forms, the conflicts between the political and the economic sector, but at the same time – and this is my central point – they have neglected or instrumentalised the wide array of other spheres of civil society. In this sense, the public/private divide will be discarded, but it takes on a new meaning. Now, it is radically separated from the state/society distinction as well as from the public law/private law distinction. Indeed, it stands orthogonal to

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them. The traditional private/public duality is dissolved into a plurality of social segments (polycontexturality). The so-called ‘public’ politics and the so-called ‘private’ economy are only two of a whole variety of social segments. However, the second step is crucial: the private/public divide then reappears within each formerly ‘private’ social sphere. The ‘public’ now takes on a different meaning— no longer state policies in so-called policy fields of regulatory politics, now the public is that sphere’s expression of its intrinsic normativity in its relation to the whole society, which law legitimately takes into account. As for the ‘private’, there is a contrast to A. Negri’s ideas, which tend to reduce the problem of the ‘private’ to the concept of private property and ignore other dimensions of the ‘private’. In my view, the category of ‘private’ should neither be given up nor be dissolved in an overarching concept, be it the public or be it the common. Historically, the distinction public/private has undergone so many changes of meaning (oikos/polis, internal morality/external law, state/society etc.) that it is inadequate to identify it exclusively with individual/collective property. Rather, the ‘private’ would be re-instated and developed to further individual and collective actors’ autonomous self-realization. The radical critique of private property has clearly its merits. But should this critique imply the destruction of the many other significations of the private: personal privacy against intrusion by others, space for intimacy in personal relations without society’s interference, autonomous pursuit of strictly individual projects against their collectivization, human rights protection for individuals and groups not only against majority politics but also against capillary power relations in different social disciplines, the Innerlichkeit of the human mind against communicative intrusion, the spirituality of individual conscience against the domination by public religion and politics? In my view, these are all legitimate expressions of the ‘private’ which speak not against but clearly for a reconstruction of the public/private divide, to be sure, not as a division of society into a private and a public sector, but as a variety of distinctions within different worlds of meaning. ‘Public’ in this new sense would not refer to the one body politic of collective deliberation and decision (A. Negri’s collective subject), but to a multiplicity of public spaces, which make possible communicative reflection processes within each of the formerly ‘private’ spheres of society. In each of these public sites, conflicts, struggles, deliberation and decisions are directed to finding a balance between the site’s relation to the whole society and their contributions to individual and collective actors. Of course, law does not and cannot dictate these reflection processes within these spheres of civil society. Instead, it needs to be responsive to them and simultaneously participate in them through judgments in individual litigation, which are in their turn exposed to the continuing reflection process. To schematize my argument, the public/private divide needs to undergo a dialectical Aufhebung in the double sense of negation and preservation.

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(1) The simple duality which dominates still today should neither be destructed not should there be a fusion of both poles. Rather, it needs to be replaced by the multiplicity of social perspectives, which then are reconstructed within the law. (2) In a rather limited sense, the old public/private divide will be preserved insofar as this divide is understood as the difference between political and economic rationality, which, however, is relativized, because they represent only two among many other social rationalities. (3) In the more important (and different) sense, the public/private divide will reappear in each contexture of polycontexturality as the precarious difference between societal responsibility and the pursuit of actors’ self-realisation, and law needs to be responsive to both sides of this divide. The famous and controversial general clauses of bona fide and boni mores in contract and tort law, to give an example from my own field in private law, do not, as many lawyers see it, subjugate private contracts to the policies of the democratic state and to public law. Rather they are an expression of what I call the internal public element in so-called private institutions, in other words the idées directrices of multiple civil society institutions, which connects them to the idea of the common good. Constitutional rights in the ‘private’ sphere, as a further example, are not transfers of state constitutional rights from the vertical relation of state-citizen to the horizontal relation between citizens. Instead, they protect the integrity of individual and social autonomies against overpowering anonymous social processes within different sectors of society. What both examples have in common is that they make the law responsive not to a unified political process of a new collectivity, but to the peculiar public dimension of diverse social configurations.

2. Question Two: Where is the Potential Space for Social Movements in its Relation to Global Governance? We have as a common starting point the idea that transformative strategies should not oppose modernity tout court; rather, as A. Negri puts it, transformative strategies should ‘subvert’ it – in other words, the purpose is to change it fundamentally while simultaneously exploiting the high ambivalences of modernity, by attacking their destructive potential and strengthening their productive potential. Karl Marx had this idea of making use of the progress of productive forces in capitalism for its transformation, and contemporary attempts aim to exploit post-Fordistic industrial organization in its inherent democratizing potential. Similarly, A. Negri and I see the ambivalences of the new global governance not only as a target of critique, but also as a chance for its transformation. Subversion not opposition is A. Negri’s formula, which he directs against private property in global capitalism. My ideas on the constitutional moment

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use a similar model, but they identify the ambivalences of modernity in a different way. My question is if there is such a thing as ‘collective addiction’ in the different sectors of late modern societies? Do we recognise this addiction as a genuine social phenomenon, not just as an individual problem? The usual answer would be, binge drinking, or the herd instinct of the bankers before the crisis. In fact, these are social amplifiers of addictive behaviour: they influence obsessive behaviour in the form of peer-pressure, imitation, social norms or mob mentality. But what they are concerned with is ultimately only the addiction of individuals. However, I look for something rather different. It is possible that social processes as such might exhibit the properties of addictive behaviour quite independently of the dependence syndromes of individual human beings. Josef Ackermann is clearly not an addict, and yet Deutsche Bank is in urgent need of detox therapy. This would amount to collective addiction in the strict sense. Independently of the addiction of individuals, communications would concatenate such that they become caught up in the compulsive engagement in an activity despite lasting self-destructive consequences. The definition of individual addiction – compulsive engagement in an activity despite lasting negative consequences – must be rethought for social systems in general, and for collective actors in particular. Which ‘addiction mechanisms’, in other words, are responsible for the fact that the autopoietic self-reproduction of a social system through the recursivity of system-specific operations reverts into a communicative compulsion to repetition and growth, bringing self-destructive consequences in its wake? Such a dynamics, in turn, raises a fundamental question for autopoiesis theory: how are we to conceive of the relationship between social self-reproduction and the compulsion to growth? The disquieting question remains of whether the autopoiesis of highly specialized functional systems is not secretly dependent on the logic of growth. And, particularly relevant to our discussion, does the recursivity of autopoiesis have inherent tendencies, over and above such normal growth, towards a socially harmful compulsion to repeat and grow? And by what means is such a ‘turbo-autopoiesis’ triggered? Now, the crucial point is that this societal addiction is not limited to the capitalist economy in its relentless growth dynamics, as many critics of modernity see it (among them A. Negri). Instead, many, if not all function systems exhibit similar expansionist tendencies – the famous-infamous tendencies towards a comprehensive politicisation, economisation, juridification, medialisation, sexualisation or medicalisation of the world – which indicates that compulsive growth-dynamics are inherent in many spheres of functional differentiation. This transforms the critique of the capitalist economy into the critique of functional differentiation. This is probably the main difference between A. Negri’s and my critique of modernity. In all function systems, the moment of excessive expectations, a type of high-risk ‘credit’ in future communications, lies hidden in the

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motivations to accept a communication created not only by the media of money, but also by the media of power, law, truth and love. The moment can only be ‘cashed in’ there with permanently higher payments, and with their reaction, in turn, on increasing ‘credit’-expectations, so that a necessary increase-dynamics, a growth-spiral develops. In that case, the pathological growth-spiral could no longer be regarded as a phenomenon particular to the money-medium of the capitalist economy based on private property, but instead as a inherent characteristic of each function system. Such growth accelerations of the function systems burden themselves, society and the environment with serious ‘consequences of their own differentiation, specialisation and high-achievement orientation’. Three collision fields can be identified: (1) the collision of the growth imperative of one system with the integrity of other social subsystems; (2) collision with a comprehensive rationality of world society; and (3) the collision of the growth acceleration of a system with its own self-reproduction. The evolutionary dynamics of these three collisions certainly have the potential to blur into social catastrophes. But there is nothing necessary about the collapse, as Karl Marx postulated, and nothing necessary about Max Weber’s ‘iron cage’ of modernity. Niklas Luhmann is more plausible: the occurrence of catastrophe is contingent. It depends on whether growth-inhibiting countervailing forces emerge to prevent the positive feedback catastrophe within the growth-dynamic. The experience of near-catastrophe, as opposed to the experience of its contingency as such, may be regarded as the ‘constitutional moment’ in which countervailing structures potentially emerge. It is the moment when the collapse is directly imminent. The similarity with individual addiction phenomena is again obvious – ‘Hit the bottom!’ It must be one minute before midnight. Only then is there a chance that the understanding will be lucid enough, the will to change strong enough, to allow a fundamental change of course. And that applies not only to the economy, where warnings about the next crisis are regularly ignored, but also to politics and science. This is the message of societal constitutionalism. A global constitutional project faces the task: how can external pressures be exerted on the function systems in advanced societies of such force that self-limitations of their options for action will take effect in their internal processes? It is ‘subversive’ as it attacks the excesses of the autonomised rationalities; but it exploits at the same time their productive dynamics. A ‘hybrid constitutionalization’ is required in the sense that external societal forces – which are not only state instruments of power, but also decisions in the legal process and ‘civil society’ countervailing powers from other contexts, media, public discussion, spontaneous protest, intellectuals, social movements, NGOs or trade unions – apply such massive pressure on the function system that internal self-limitations are configured and become truly effective.

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It is only possible to invent, elaborate, and enforce these limitations from within the system-specific logic, and not from the outside. The difficult task of mutually aligning the function of a social system and its contribution to the environment at a sufficiently high level can only be attempted by a system-internal reflection, which may be initiated or mandated externally, but cannot be substituted. There is no alternative but to experiment with constitutionalization. To take the constitution of the economy as the exemplary case, in order to inhibit pathological growth compulsions, stimuli for change need to generate permanent counter-structures that will take effect in the payment cycle down to its finest capillaries. Just as in political constitutions power has been successfully used to limit power, so the system-specific medium must turn against itself. Fight fire by fire; fight power by power; fight law by law; fight money by money. Such a medial self-limitation would be the real criterion distinguishing the transformation of the ‘inner constitution’ of the economy from external political regulation. Candidates for a capillary constitutionalization would create at least three possible spheres of the ‘commons’ understood in this wider sense. (1) Politicisation of the consumer: Instead of being taken as given, individual and collective preferences are openly politicised through consumer activism, boycotts, product-criticism, eco-labelling, public interest litigation and other expressions of ecological sustainability. Such politicisation of economic action represents a transformation of the inner constitution, touching the most sensitive area of the circulation of money, namely, the willingness of consumers and investors to pay. And this becomes a question of constitutional importance, or more precisely, a question of horizontal effects of constitutional rights in the economy: how to protect the formation of social preferences against their restrictions through corporate interests. (2) Ecologisation of corporate governance: What is meant, here, is not a new managerial ethics, but rather a transformation of the internal company structure, compelled by external pressures; a transformation which limits the tendencies to speculation and compulsions to grow necessarily associated with the emergence of the modern corporate structure. The traditional forms of worker’s participation in the firm would have to be reconsidered under conditions of globalization into new forms of social and ecological responsibility of economic production. (3) Public control of the monetary system would penetrate the arcanum of the global financial constitution, as is proposed to combat growth-excesses. The addictive drug is the creation of non-cash money by the commercial banks. Today, the relation of paper money created by the central banks and non-cash money created by the commercial banks is 20 : 80. Commercial banks should be prohibited from creating new money through current account credit and limited, instead, to offering loans that are based on existing credit reserves. Indeed, U.S. President Jefferson demanded as early as 1813, ‘that the right to issue money

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should be taken from the banks and restored to the people’. But who are ‘the people’ when it comes to money? How can the creation of money be restored to the people? After all that has been said, the answer can only be that money creation belongs in the public sphere, in the sphere of the commons, though not in the domain of the state. The creation of non-cash money should be ‘given back to the people’; it should become the sole prerogative of public institutions, which are not state institutions, the national and international central banks under democratic control. These three strategies – politicisation of economic citizenship, ecologisation of economic production, and return of money creation to the public – participate in two antinomic thrusts to constitutionalise global markets. Analogous to Karl Polanyi’s analysis of the transformation of modernity, there is a ‘double movement’ of transnational constitutionalism: first the expansion of sub-systems is supported by constitutive norms, and second, turbulent social conflicts force its inhibition by limitative norms that create a sphere of the commons in the centre of the economy.

3. Question Three: Would a New Global Law Be Articulated by a Different Subjectivity? I support A. Negri’s critique of private property insofar as private property is the major obstacle for forming a collective subject, which could articulate a common politics. The difficult question however is how to imagine the new contours of such a collective subject. Indeed, the proletariat and political party as the avant-garde of the working class, not to speak of the nation or even race, have turned out to be grave historical errors in forming the collective subject. But liberal philosophy and the philosophy of the subject who insist on the human individual as the only legitimate subjectivity in historical processes are also unacceptable, since both misunderstand fundamentally the transformation of society after the demise of feudalism as the rise of individualism. A. Negri’s multitude in its relation to the common challenges this reduction profoundly, and revitalizes the collective subject against the dominant methodological individualism. However, I have two objections against A. Negri’s collective subject. Is the ‘multitude in its entirety’ as the new collective actor not still bound to a traditional understanding of the collective (as if a number of separated human beings were united in a new community)? In my view, the idea of the collective cannot be revitalized as the antonym of the individual. Collective actors do not consist of individuals in concert. These are historically discredited formulations. A community is created neither in the corporeality of real people, nor in a consensus of their consciousness, but only in their communication. Communities are living and dynamic language games, not mysterious unities of peoples’ consciousness

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and bodies – which organicist thinkers like Gierke suggested, and which return today under the new labels of bio-politics and corporeality. As a consequence, one should follow A. Negri’s starting point (but not his subsequent ‘collectivist’ arguments), his recourse to Wittgenstein’s language games and life-practices, and expand it so that collective actors can be identified exclusively as chains of communications that thematise themselves and gain capacity for action and reflection in their own right as compared to the action and reflection of individual human beings. Collectives are social communicative configurations that cannot be identified with an ensemble of real people. No doubt, the material basis of collectives are human minds and bodies, but this should not lead us to A. Negri’s holistic mystifications of the collective subject as a new unity of corporeality, consciousness and communication. The other objection has to do with the omnipotence fantasies of politics. The collective energies of societies cannot be bundled in the one great political process, in A. Negri’s words, ‘in the active and autonomous self-regulation of the multitude in its entirety’. Here I feel a second holistic mystification in his rhetoric of the common. The collective potential of society’s communication does not exist as a unified political entity in its entirety; it develops its specific force only as a multiplicity of highly specialized social potentials, energies and forces. This is the historical achievement of the specialization of communicative media – power, knowledge, money, and love. And only there is the place of the new collective subjectivity, where diverse collective subjectivities constitute themselves within the different worlds of meaning. The self-identification of such collective subjectivities aims at the reflection of their social identity. How do the various collective subjects define autonomously their relation to society as a whole, to the other collective and individual subjects and to themselves? This triadic structure of social identity makes visible its hidden connection to the tradition of subjective rights of the autonomous individual. The autonomy of the individual was not understood as pure pursuit of individual interest nor as the will to self-realization. It stood in a constitutive relation with the individual’s responsibility toward the whole community and toward the others, which could not be externally imposed but only formulated via the singular internalization of the world in individual self-reflection. Thus, it is the duplication of subjectivity, the individual human being and the communicative chains that will not and cannot be fused into a new entity. This duplication creates two independent, different and parallel contexts of autonomy and responsibility. I would suggest identifying the ‘commonwealth’ in this duality of individual and social reflection and in the multiplicity of communicative centres of reflection. Modern society has no apex and no centre, and the commons should never attempt to take this place. Such a multiplicity of public spaces would be my counter-vision to the commonwealth of the ‘multitude in its entirety’.

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4. Question Four: How Could Institutional Imagination Develop? Again, we have a common starting point; the promise of the future lies not in institutionalized politics of the state or in the institutions of global governance, but in a constitutionalization of spontaneous processes in civil society. Here, the concepts of empire, of multitude and of the common have indeed a liberating effect against the state-centred conceptions of the tradition. But, as I said, the bifurcation begins when I understand A. Negri arguing for a comprehensive and unifying politicization of society via the concept of the commons, while I argue for a strictly pluralist constitutionalization, which explicitly requires the extensive autonomy of different social rationality spheres. This, however, raises the critical counter-questions to my argument. Does this not imply that society is de-politicized in these partial pluralities? Does giving account of multiple global legal orders really require moving beyond politics-centred constitutional thinking? And what is the value of constitutionalization without political democratization? My tentative answer is that societal constitutions are paradoxical phenomena. They are not part of the constitution of the political system in society, yet, at the same time, they are highly political concerns. The paradox can be solved with the help of a double conception of the political. This is a widespread idea and the difference between le politique and la politique, is understood in a variety of ways (e.g. by Lefort, Badiou, Agamben), but I would interpret the double meaning of the political as follows. First, by ‘the political’ is meant institutionalised politics – the political system of the world of states. In relation to this world, social sub-constitutions ‘go the distance’; they require extensive autonomy against the constitution of international politics. And with regard to the participation of the political system in the process of the social sub-constitutions, particular ‘political restraint’ is required. Second, the concept indicates the political in society outside institutionalised politics. It indicates, in other words, the politicisation of the economy itself and of other social spheres; the politics of reflection on the social identity of the social system involved. In this respect, the particular social constitutions are highly political, but beyond the state. When I read A. Negri’s ultimate chapter and the three platforms in which he formulates demands on a new ‘government’, I do not find any trace of this double concept of politics; rather, a totalizing concept of the political in which what he calls ‘government’ is supposed to constitutionalize and regulate pervasively every sector of society. Why am I sceptical about A. Negri’s idea that a new political government, even if it is fundamentally democratic, needs to regulate pervasively the fundamental structures of social sub-spheres? If it is ultimately the greatest privilege of the multitude to create a constitution for society, why do I favour the auto-constitutionalization of social sectors and not collective decisions by the

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‘multitude in its entirety’ for the whole of society? Again, the answer has to do with the basic social structures of modernity. They make it necessary to re-define the traditional relationship between representation, participation and reflection. In the functionally differentiated society, the government, even a fully democratic government in A. Negri’s sense, cannot fulfil the role of defining the fundamental principles of other social spheres without causing a problematic de-differentiation – as occurred in practice in the totalitarian regimes of the twentieth century. In modernity, society can be constitutionalised only in such a way that each sphere of rationality acts reflexively in developing its own constitutional principle for itself, and the results cannot be prescribed by ‘government’, old or new. Modern society regards participation and representation as identical and, at the same time, abolishes them. We must resist the seductive idea that a unified political collective represents society and that other social spheres participate therein. No social sub-system, not even democratized politics, can represent the whole of society. To be sure, there is an important role for the general political process. While it cannot prescribe the constitution of the economy and other social subsystems, it can produce constitutional impulses for them. If democratic politics, together with other actors, particularly civil-societal actors, exert massive external pressure in order to compel changes in fundamental social structures - for example, in the capillaries of the payment cycle of the economy - that would be the appropriate division of labour. Social systems have the best constitutional chances where they can develop their own constitutions in the shadow of institutionalized politics. However, what is the value of constitutionalization without democratization? Very little. Constitutionalization of social institutions makes sense only if it is realized by their internal democratization. The democratic legitimation of different social spheres must come up in relation to society as a whole – but it need not proceed through the channels of a totalizing political process which seems to be A. Negri’s vision. While societal constitutionalism keeps its relative distance from institutionalised politics and sees no great democratizing potential in a stronger legitimation by a general political process, the politicisation and democratization of the economy and other social sectors themselves is high on its agenda. Politicising a social sector means to unleash intense and conflictual processes of collective reflection that deal with the social consequences of the extension and the limitation of its medium. Politicisation is realized by ‘collegial institutions’ in the general public, citizen groups, NGOs, labour unions, professional associations, universities and corporations. A strengthened politics of reflection is required within the economy and other social spheres that, at the same time, needs to be supported by constitutional norms. Historically, collective bargaining, workers’ participation, and the right to strike had enabled new forms of societal dissensus. In today’s transnational regimes, institutions of social responsibility of formal organizations will have to be developed that fulfil a similar role. Societal

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constitutionalism sees its point of application wherever it turns the existence of a variety of ‘reflection-centres’ within society, and in particular within economic institutions, into the criterion of a democratic society. In these reflection centres, it is controversially discussed and finally decided whether, in a concrete situation, the growth compulsions of the social sector are excessive or not. If it is true that ‘... psychic and social systems must develop their own reflexive processes of structure selection – processes of thinking about thinking, or of loving love, of researching into research, regulating regulation, financing the use of money or overpowering the powerful’ (Niklas Luhmann) then societal constitutionalism cannot be limited to the rule of law and human rights. Its overriding concern must be to democratize not only institutionalized politics but to democratize all sectors and all institutions of society. The democratic character of a society does not only depend on democracy in political institutions (general elections, referenda, participatory politics etc.), but on the democracy of all societal institutions. If this makes sense, then the crucial point is this: it would be a categorical mistake to transfer democratic institutions and procedures that have been developed in the political system directly to other social sectors. This was one of the main errors of 1968. Every world of meaning must find its own way of democratization. Power-politics democracy with its compulsive division of the world into the binary distinction progressive/conservative would impair the proper rationality of other social spheres. Democratizing the accumulation of power for collective decisions cannot and should not be the model, neither for the inner constitution of scientific inquiry and the universities, nor for the judicial process, nor for the health sector, nor for the media of information, nor for economic production. What is needed, instead, is to generalize a concept of democracy from the experiences of politics, and then to re-specify it for the other spheres of rationality. This would be my view of the politics of the commons: not in the entirety of the multitude, but in the fragments of polycontexturality. In the case of law, electoral politics for judges or the referé legislatif would be the categorical mistake. Instead, the appropriate move is to radically broaden access to justice and transform the private litigation process into a site of public deliberation where not only the parties but concerned third parties and the general interest are heard, points to the right direction because it respects the inner triadic structure of the judicial process. In the case of the economy, this would mean transforming post-Fordist tendencies of decentralization and functional democratization into genuine processes of participation of the productive coalition, which create the monetary surplus necessary for securing future needs of society.

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5. Question Five: Where are the Main Differences and Convergences Between Societal Constitutionalism and the Politics of the Common? I will try to summarize here the main differences and convergences between our approaches in three points. First, my counter-category to the excesses of the ‘private’ is not the ’common’ but the ’public’. To be sure, this is not the ‘public’ of the state, of public law and of institutionalized politics. Rather, it is the ‘public outside the state’, within society, within the many so-called ‘private’ fields. While the ‘common’ seeks to overcome the alienation of the private via collective activities and collective modes of attribution, the ‘public’ tends to strengthen the space of open and democratic deliberation, which finds its different forms in each social field. Undoubtedly, common property has a powerful potential, which has been suppressed under the domination of neo-liberal policies of private property. But the choice between different attributions of property rights cannot be decided a priori on theoretical grounds in favour of the commons, but needs to be governed by public reflection processes within each sphere of life. Democratic reflection processes will draw diverse boundaries in each sphere of life of what should be legitimately kept private (e.g., part of intimate life, exclusionary to others, etc.) and what should become a common enterprise shared by all. Second, what I call polycontexturality has certain similarities to the fragmentation of Empire and Multitude, but as a result of longue durée historical processes, it is much less fluid and cannot and should not simply be overcome by political fiat. Rather, any subversive transformation of modernity that wants to overcome it but simultaneously to draw on its productive potentialities will have as one of its priorities to cultivate polycontexturality. If A. Negri wants as he says to build not only on natural science and technical knowledge (but also on existing sociological knowledge), he would have to take centrally into account what I see as sociology’s most important diagnoses of modernity – those traditions that include, Emile Durkheim’s division of labour, Max Weber’s new polytheism, Talcott Parsons’ and Niklas Luhmann’s functional differentiation, Bourdieu’s champs sociaux ending in its most radical formulations in Gotthard Günther’s polycontexturality and Francois Lyotard’s différend. I should stress that polycontexturality cannot be identified exclusively with the functional differentiation that dominates today. It is more abstract and opens the space for new social differentiations that we are partially witnessing today, including the multiplicity of discourses, identified by postmodern thinkers, and the variety of hybrid cultural distinctions, modes of A. Negri’s ‘altermodernity’, as a result of the double fragmentation of world society. Polycontexturality, in my view, does not only result from fragmenting power structures of the Empire, as A. Negri tends to argue. We have to take the high ambivalence of polycontexturality more seriously. Unleashing the relent-

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less and reckless dynamics of specialized rationalities – not only in the capitalist economy, but in many function systems – it is responsible for the catastrophes of modernity, for the alienation of individuals, for devastating social conflicts and for ecological disaster. And at the same time, this very polycontexturality embodies the conditions of possibility for the promises of siècle des Lumières and modernity: the liberation of reason from religious and political repression, the autonomy of the rule of law against political and economic power, the democratization of the political process and its protection against economic corruption, and last not least, the concentration and limitation of the social surplus production in the field of economic action. Third, and finally, while these two points drive our projects in different directions, there are linkages, open connections and hidden convergences in many other respects that would be worthwhile to be worked out in detail. Societal constitutionalism and the politics of the commons argue both against the political quietism of many strands of post-structuralism, against the Gelassenheit and against the passive waiting for a new subjectivity. They both identify the Janus face of capitalist modernity – its self-destructive as well as its productive potential – and see in its high ambivalence the chances for its ‘subversion’. Both criticize the sterile alternative of state-centeredness versus private property of the private/ public divide and change the focus of attention to wider processes in society. They dismiss both the old collective subjectivities (class, avant-garde, nation, race) and formulate ideas of a new subjectivity in the tradition of Wittgenstein’s language games and life practices. Subjectivity appears no longer exclusively as the identity of the self-reflecting individual, but as a dense web of social events in its ruptures and repetitions – autopoiesis of the collective. In their critique of the excesses of private property and its underlying growth compulsion, both argue for a thoroughgoing politicization of the so-called private sectors of society. In contrast to contractual theories of society, they see massive social conflicts as the driving force, but stress at the same time an urgent need for institutionalizing and constitutionalizing new political dynamics within all sectors of society. And perhaps most importantly, they judge the democratic character of a society not in terms of formal democratic procedures in institutionalized politics, but in democratizing processes within different domains of society.

The Law of the Common* Antonio Negri

1. Introduction: The Fades of Law Legal scientists have highlighted key features of global governance: the tendency of processes and practices of governance to exceed the rigidity of legal systems and regulatory structures; the fragmentation of legal systems under the pressure of conflicts of the global system; and the clash between different sorts and kinds of norms. Governance thwarts any attempt to unify global legal systems due to the need to operate a modular logic to manage conflicts and ensure legal compatibility among the fragments of the global world. In this sense, governance is indeed a ‘government of the state of exception’ (obviously in the opposite sense to that theorized by Schmitt to define sovereignty). It seems that this conclusion is correct and that in the globalized world the deconstruction of traditional forms of law and sovereignty is inevitable. Indeed, we must accept global governance to be ‘post-democratic’, in the sense that it no longer relies on three traditional traits: the representative system framework which supported and ensured the legitimacy of the state; the organs, techniques and practices of governance to have the flexibility and the fluidity needed to constantly adapt to changing situations; and its enforceability to be dependent on a variety of forms of regulation controlled, often indirectly, by oligarchies, particularly economic ones. Okay. But this analysis of the crisis of law and sovereignty in a globalized world, with the strong deconstructionist contents that characterize it, does not attain to deal with another term that (contemporaneously, if not synchronically) is placed in the context of globalization: the theme of the common. We observe, first of all, that global and common are not coextensive terms. When they are considered as such, they are vulgarized (e.g., Nancy, Esposito, etcetera). On the contrary: whatever are the political and legal overlaps, global is a spatial term, common is a productive term (with a strong and significant incidence on the ground of ontology). Why, then, draw them near? Is globaliza*

Translation by Pietro Antonio Messina.

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tion the cause of this shift? Of course, it is a very important one, but that does not make it a device of definition and let alone of constitution of the common. Rather, globalization is an engine of chaotic fragmentations and / or of unpredictable links, often still determined by residual (not therefore less effective) streams of sovereign action. If we do not rely on an ideological approach, one can perhaps assume that the term ‘common’ enters into the debate as a central theme when, in globalization and the legal practices that accompany it, we begin to see missing, as defining marks, the transcendentals of private and public law and the subsequent legal practices. It seems there are aspects, dimensions, profiles of the ‘common’ that – if they do not give answers to that crisis – at least redefine its terrain. We will return later to this issue. For now, let us ask ourselves: while we allow ‘fading’ categories of the old law (both conceptual and jurisprudential in nature), how may we lay out the theme of the ‘common’? A hypothesis shared by the majority believes the old law to be defined essentially around the concept of private property. Cannot we go beyond this horizon? Faced with the ‘fades’ in the terrain of a global governance of law, how can we configure the permanence of law? From whatever point of view a historical analysis of this topic may be developed, it seems we can confirm that behind the fades that globalization has determined, there are stories that show, by their current crisis, the impossible evolution of private and public law to another kind of law, to a tertium genus. Least of all, clearly, to a ‘law of the common’. It should be added immediately that the word ‘law’ here is as equally ambiguous and uncertain a term as the ‘common.’ This is confirmed, first of all, if we consider continental law. In the West, the legal dimension became important as soon as it was articulated around the formalized (and individuated) figure of the property-owner. The institutional (and conceptual) framework of Western law is rooted in the needs of the individual, modelled inside the conflictual (zero-sum) relations that she has with her judicial counterpart. The establishment of Justinian’s Corpus Juris marks the end of a legal evolution in the Roman world that paved the way for two thousand years of legal history. Later on, Roman law is taken again and is adapted according to the needs of early capitalism, so that it can properly interpret and organize the primitive accumulation of capital. Characteristic of this story is the fact that legal, procedural and case law practices consolidate the rights of the property owner and produce a mechanism of uniform validation of property (the market) and sovereignty (the State). Both these systems concentrate the power on the individual and exclude all other decision-making subjects in the sphere of the given jurisdiction. Hic Rhodus, hic salta. In this context, looking for something beyond the strictly private conception of law and of its procedures of application and verification would be vain. Consequently, looking for a definition of the

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common in this ambit is entirely inappropriate. Continental law does not allow the common to be recognized, no matter how it is interpreted. The boundaries (of the zero-sum conflict) in the public and in the private do not leave, for the time being, space for a definition of a third way. The same conceptual void occurs when you follow the tradition of old English law, which is called right of common. This archaic right is closely related to the communal structures of medieval towns. When Pollock and Maitland analyze this ‘right of common’, they recognize that far from being a right ‘of the common’, it is an individual right, a right which is not in a relationship of rupture with legal individualism, that is with property ownership interests. On the contrary, it is a right that the individual can oppose against a collective management of the common, a right that cannot in any way align the perspective of the common to that ‘of equality in the co-production of non-state legal norms’ (as the ‘law of the common’ has been recently formally defined). It is no coincidence that these ancient communal definitions have been referred to in the fifties by Hayek, for example, and we know perfectly well how. It seems, therefore, very difficult to acknowledge a law of the common that originates within the old legal theories and then emancipates itself from them. Especially if (as it is often theorized by socialist legal thought) it is expected that the evolution of public law, opposing private law, will provide a foundation for the transition to the law of the common. On this point, the reference to Soviet experience is interesting. Pashukanis – the greatest jurist at the time – immediately noticed it with great clarity. There is no – he says – proletarian law: ‘by getting to the stage of developed socialism, the disappearance of the categories of bourgeois law will mean the extinction of law in general, namely the gradual disappearance of the legal moment in the relationship between men’. As for the Soviet state, it is defined as a proletarian State capitalism, in which two realities of trade and law exist, according to Pashukanis. The first is an economic life that takes place in a ‘public’ manner (general programs, production and distribution plans and so on); the second, instead, consists in the connection between economic units that carry out their activities ‘in the form of value of circulating commodities and, therefore, in the legal form of contract’. Now it is clear that the first trend (that of public law and planning) has no progressive perspective and opens only to a gradual extinction of the legal form in general, translating it into the economic management of society. The second trend is the one that, resuming the autonomy of economic forms and considering them in their cooperation, can instead develop towards the common. It is interesting to note that in the Soviet discourse of someone like Pashukanis (a minority position, but Marxistically correct) it is emphasized that it is impossible to extract the ‘law of the common’ from public law and it is considered, instead, the possibility of relying on the cooperation of collective work, not only as an

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exit from the property-based law, but as well for the construction of new forms of life and of non-capitalist social organization (the ‘Market – common Chinese peasant – without capitalism’ in Arrighi is a model with the same resonances). Does current history, in which the procedures of governance are emerging, give us some positive indications about the road to the ‘common’? Is it possible to catch in the procedures of governance a glimpse of a ‘trend towards decentralization’ against the strong trend of concentrated capitalist power in the world? Towards the fragmentation of powers against their tough economic unit? Towards the possibility of widespread control by an active public opinion? Towards the bottom-up experimentation of mechanisms of participation in the division of social labour and in the redistribution of the product? With plenty of optimism we could perhaps conjecture it, but realistically it is difficult for us to conceive of currently establishing governance, as an exercise of power and production of legal norms, that might meaningfully allow for open, flexible, dynamic institutional arrangements, nor can we easily imagine a legal program devoid of any centre that might rely on mechanisms of conflict between norms and competition among systems. This model sounds very much like a utopia, especially as current history seems rather to demonstrate the impossibility of a linear development of the existing legal systems towards the common.

2. Factual Considerations It remains to be asked why the global recalls the common. It recalls the common because globalization has put us immediately in front of a common, though one that we might describe as a ‘bad’ one: the common of capital. When the time measurement of work is replaced by the power of cooperation, and devices for the circulation of commodities, productive services and communications stand as agents of capitalist valorisation; when the process of real subsumption, which is the transition from the industrial production of commodities to the control of social life put at work, with automation and computerization of production – in such a context, the transformations in the law of value present capital as global bio-power. The new basis, on which exploitation is established, consists in a progressive movement of capitalist command from the factory (the Fordist industrial organization and the Taylorised discipline of the working mass) to the whole of society (through productive hegemony on immaterial labour, valorisation by cognitive work, financial control, and so on). That is to say, the new basis on which capital works is the exploitation of cooperation, languages and common social relationships. It resides, in general, in the so-called ‘social externalities’, internalized into the capitalist production on a global scale. Let us start, by way of an example, from the current global economic crisis. Many interpretations have been offered. In any case, were they from the right or

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the left, the reasons for the crisis were brought back to the gap between finance and ‘real production’. If you take the new assumptions which we have discussed so far, which refer to the emergence of a new ‘common’ quality of living labour and its exploitation as such, it should be stressed here that the financialization of the global economy is not an unproductive or parasitic deviation of increasing amounts of surplus value and collective savings, but a new form of capital accumulation, symmetrical to the new social and cognitive processes of production of value. To overcome this crisis, it is useless to pretend that the answer can avoid the creation of new social ownership rights of the common – and these rights, clearly, clash with private property and require a break with the public law that represents the legal force of private property. Repeating what we have elaborated in the UniNomade seminars: ‘If until now access to a common good has taken the form of ‘private debt’ (and the crisis actually exploded around the accumulation of this debt), from now on it is legitimate to claim the same right in the form of ‘social return’. To have these common rights recognized is both the right and the only way out of the crisis.’

2.1. Approximations 1 Traditional law cannot, therefore, define (or even turn towards) the common. It is always compelled, in the current crisis, to perform a kind of restrictive governance action and is sentenced to a substantial ambiguity. Governance can only make smooth social exchange and optimize the flow of streams. This means rewriting sovereignty in contractual terms, de-hierarchizing structures of decision making, introducing a perspective of relationship which is fragmented and polycentric, weakening the traditional separation between public and private - but importantly, it cannot do anything more than that. Chignola reminds us in the path of John Fortescue and Justice Coke, ‘the term governance is referred, from the very outset, both to government as personally referred to the right to command of the prince and to the hierarchy of the administrative offices that depend on him, and to the thick collection of norms, practices, statutes and libertates, which defines the web of rights and powers of political and civil organization.’ In the sunset of the rule of law, the lights of dawn repeat themselves. Alleviating the suspicion with which we have so far dealt with governance let us, however, admit that it may open up, in constituent terms, beyond the current conditions in which it acts. Let us assume that the terrain of the common appears closer to us, as a terrain of transition from the public to the common, and that governance fits along the plot of this transition. The question to ask at this point could be: if traditional law fails to define (to control, to transcribe, to establish) the common, in which manner can governance approximate it? Which

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is like saying, will the governance be (ambiguously, producing a sort of conatus) the one that builds the new law?

2.2. Approximations 2 From a thoughtful point of view – namely, that of jurisprudence – we can here try to raise the issue of how to define the common. I suggest a few examples that represent extreme cases (between which there are infinite combinations) but that may perhaps help us to proceed. On the one hand, then, in terms of socio-political Darwinism, the common has been defined as the effect of economic and political relations of co-production. In this regard, everyone knows the famous formula by Saint Simon, taken over by Marx and Engels, according to which the ‘administration of things’ will replace the ‘government of men’. The common, here, is revealed as the economic administration of society by itself. Socialism responds to the self-equilibrium of interests proposed by the liberal market with the conscious economic self-organization of men. This formula constantly recurs in socialism, at least up to Lenin. This clearly is a teleology of the common, innervated by industrial technological rationality. The common is something made (participle of the verb ‘to make’), ‘a real movement that realizes the state of present things.’ An opposite pattern of definition of the common is the sociological-institutional one. The development, from civil society to forms of public organization, to a common conceived as a societal outcome or as the result of the tendency to form associations, is seen just as a product of an ongoing activity. A procedural and social activism substitutes here the economic and technological need of the first model. Considered in its most recent figures, the ‘institutional’ common is defined (for example, in Luc Boltanski’s scholarship) by the abandonment of sociologies that focus on vertical dimensions and on the opacity of the alienated consciousness of the actors, for the benefit of a sociology that insists on horizontal relationships (and, of course, on networks) and on ‘contextualized’ actions of actors led by strategic reasons or moral imperatives. The focus is on elements of ‘performativity’ of the social and even when the public (the state) is called back and it is assumed to be a balancing element of processes, this pragmatic sociological institutionalism recognizes both the contradictions within which the process is closed, and the power of its open devices. In short, ‘a real movement that acts the state of things’. A third interesting model (which is, however, the median between the extremes), still from the point of view of a definition of the common, is the philosophical revival of a dialectical (soft) theory of relationship. It was the path that the formalism of Habermas had advanced on and the realism from which Honneth proceeds. The common is here seen as an Aufhebung (soft), without needs. The difficulty of its realization is to determine – in the indefinite context of the conditions – the compossibility of the differences. So here are experienced,

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among other things, the difficulties that have become evident in the development of Foucault’s project, when one considers it as an epistemological model rather than a political device. These approximations remain as such. All attack the idea that the common can in some way be presupposed and all claim that we can only think about social practices of production of the common. How will governance be able to interpret, and possibly go beyond, these premises on a path that leads towards the common? To avoid further obstacles, we may ask here whether the common determination of acting in common should necessarily take the form of the ‘institution’ when we proceed on this field. Answering in the negative to this question, one could rather insist that the production of rules that are not derived from the law may take the form of negotiated customs, of practices of the common that cannot but originate through concrete determinations and power relations. In this framework, we might ask a further set of questions. How, for instance, to articulate the terrain of property with that of customs? What are the conditions of compossibility of the individuals/singularities? How to prevent the strength of identities to close any possibility of compresence of singularities? What are the processes of subjectification that cross these constitutive processes? Can the constitution of a common, that is not ‘additive’ nor ‘integrative’, that is not ‘sum’ nor ‘organism’, be out of a dialectic progression (or regression, hard or soft) of Hegelian kind? To answer this question let us introduce some additional questions, or what we might call experiments. 2.2.1. Experiment 1 If we assume that the context of governance, in which the plurality of actors develops its action, is devoid of any finalistic or value determination, and if any determination is a power that wins (or loses) relative to other powers, the first legal example which we could refer to in our quest for the common, is the one traditionally represented by the international law of war. Here the common paradoxically refers back to the global economy. This is certainly a terrain free from formalisms. Indeed, the risks that we would face if we worked in this area with the liberal concepts of rule of law or with the doctrines of justice anchored to the abstract schemes of metaphysical rationalism are clear to everyone. But by so doing, legal practice is reduced to the mere recording of facts – it is the manner in which sociology and realistic empiricism proceed – we enter an area (the one defined by Carl Schmitt for international law as a non-law), whereby governance is defined in the absence of any possibility of nomos. We are once again deep in the fades. The experiment of international law does not change the fades other than by dislocating them. Here, a new reflection has to be made on the terrain of globalization: a reflection that recognizes the basic antagonisms

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between which, in all senses, the process of global reorganization moves, which eliminates any homology with the past, any reference to the old international constitutions, and which tries to build temporary and effective regulations on new spaces and themes (bio-political, media and especially financial). A second example is that of trade union law, in relation to class struggle. In the post-Fordist transition and during the economic crisis – once the Rhine compromise and in general the more or less corporatist industrial contractualism collapsed – the problem of social labour regulation and that of the redistribution of ‘gross domestic product ‘ have become issues now free from any legal conditioning, shifting from the field of direct production to that of social production. Again, any homology with past trade union law is vain - here too, there is a constituent initiative to be opened. However, what appears today, is also in this case a terrain characterized by determinations similar to those defined by international law: a real disaster of traditional legal forms. For the moment only tactical operations of resistance appear to be possible. 2.2.2. Experiment 2 Here, our second experiment is on the line of commonwealth. It leads us to deal with the issue of an eventual law of the common from the point of view of the ontology of the common. This line starts from the recognition of the construction and the functional subjection of the common by global, financial, and military capitalism. Far from proposing processes of mere recognition or appropriation of structures and shapes of the ‘communism of capital’ and of its State, this line suggests to think about processes of governance as a means of further destructuring of traditional law and, secondly, it undertakes the objective of urging, within this process of destructuring, the emergence of new types of productive cooperation. The only way out, with respect to these problems seems to be: 1. The restatement of the theme of the common on a terrain that is not socially homogeneous, which does not have pre-established institutional structures or homologies, but rather, which is crossed by original antagonisms: on the one hand, there is a more and more precarious labour force, which recognizes its own autonomy from capital; on the other hand, the relation of command that capital continuously seeks to renew. The solution of these conflicts cannot be constructed according to some teleological or dialectical determination. We move in a Machiavellian context. Each determination is a power that wins (or loses) relative to other powers. The sense of the process is assimilated and produced here by the power of collective decision-making. In this framework, the common cannot be placed in continuity with the legal tradition, cannot be configured as a terrain in which you propose, from the outside, ideas of justice. Instead, it can only hold and build usages and govern them in their immanence, in their reciprocity and community. International law (precisely as a non-law) is from this point of view

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the model to which we may refer (but in a reversed manner, opposite to how Carl Schmitt raised the question). 2. The reversal of Schmitt’s perspective – not the recovery of the ‘exception’ but the insistence on the ‘surplus’ of cognitive labour, the assumption of a suitable bio-political context, the study of doctrines and practices destructuring Western law and the exercise (in the destructuration of law) of constituent power – constitute today the only viable way out on these issues. In this regard, writing in the 1920s, Pashukanis proposed some very interesting lines: ‘It is most obvious, that the logic of juridical concepts corresponds with the logic of the social relationship of commodity production, and that the history of the system of private law should be sought in these relationships and not in the dispensation of the authorities. On the contrary, the logical relationships of domination and subordination are only partially included in the system of juridical concepts. Therefore, the juridical concept of the state may never become a theory but will always appear as an ideological distortion of the facts.’

To imagine a law of the common (but why even still talk about law?) we must therefore – once the destructuring of the property-based constitution is completed – rise from the plurality, from the network of labour relations and forms of regulation that include and develop the potential of social productive relations, and which constitute, in equality and co-production, non-state legal norms to regulate the common life. Thus, for example, we must follow the phenomena of cooperation of the labour force, of self-valorisation, that introduce a surplus of productive capacity of the individual and collective labour force. We must go through all financial phenomena revealing from therein the power of symmetrical relations between social production and system of signs – and importantly, we must reinvent, probably at this level, a theory of ‘labour-value’ (and its measurement). Only here will it be possible to establish lines that (not simply in tactical terms but finally in strategic ones), go back from Welfare to the common (that here, in this light, begins to define itself as an arena of democratic participation coupled with distributive equality).

3. A Note to Teubner’s Note (Hardt and Negri) Teubner begins by interpreting, in a sometimes confused way, concepts of Commonwealth; however, in his final characterization of the differences and similarities between his path and ours, he is very fair and generous. There are two similarities to be noted: 1. The recognition of the inadequacy of the alternative between the neo-liberal market solutions and Keynesian or socialist (state) ones. If a third way has not come yet, we must invent it.

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2. The appreciation of the plurality of the social field and the insistence on a political movement based on multiplicity. Very well, so far. The first critique of Teubner is, indeed – when he comes to the end of his speech – that we are guilty of supporting a unified and totalizing political solution that betrays our initial reliance on the multiplicity. On this point, we adhere to Teubner’s insistence on the multiplicity, simply by putting in this context the need to ‘make multitude’, or more simply, to make society (not as a unified social totality, but as a coherent context of stable social relations). We believe not to be far from Teubner’s view on this regard. Nevertheless, we believe that the discussion should be deeper on the use of the concepts of public and private. Addressing Teubner’s argument, he wants to tear the ‘public’ from the state, and he uses the concept for many of the determinations, which we call ‘common’. The issue, however, becomes more complicated when he wants to recover the ‘private’. He mentions that even if he can agree with our critique of private property, there are still many other uses of the private that he wants to keep. We have never said that all the guarantees Teubner wants to keep for the private should be thrown away. On the contrary, we would like to characterize them, rather than using the concept of privacy, with the concepts of autonomy and freedom; concepts which are very different because they are not based on separating and protecting, but instead rooted on our power. Finally – and perhaps most importantly – we think Teubner underestimates the intensity of our criticism of private property, or rather undervalues the radical social transformation required by the abolition of private property. He assumes, in fact, that all other meanings of ‘privacy’ (outside property) are neutral with regard to the ‘private’ of property – whereas we believe that they are closely involved in it. In short, we would like to contextualize Teubner’s characterization of the ‘private’ with that of Pashukanis when he shows that private property rights ground bourgeois (and capitalist) law, while the other energies of the singularity (the responsibility at work, the joy of scientific research, social solidarity etc.) enable the construction of the common. We are so convinced of this that it does not seem strange to us that the common could be constructed from those private virtues rather than by the strength of the public, of the State (always aimed at the protection of property). Teubner, perhaps, does not realize how much the conditions of private property, in all contexts, endanger those language games that he wishes to preserve.

Constitutionalism Forever George Rodrigo Bandeira Galindo* AbstrAct: In recent years, constitutional ideas have significantly commanded the attention of academics in the field of international law. Among several different versions of international (or global) constitutionalism, the one discussed in this article shows a clear trend: a strong reliance on the concept of progress. I try to analyse some of the implications of such an attachment of international constitutionalism to progress as it is understood by the moderns in contrast to the ancients. Starting from the premise that international constitutionalism, generally speaking, does not pay due regard to problems like poverty and other inequalities that constantly affect the Third World in particular, some issues are addressed: the treatment, by international constitutionalists, of international law as primitive law; constitutionalisation as an endless process; the production and reproduction of exclusion by the constitutionalist argument; constitutionalism’s emphasis on consensus; and the difficult relationship between order and justice in constitutionalist projects. With some brief concluding remarks, the question is posed whether or not international law can escape the concept of progress, and a pledge is made for future research on the issue that sustains the modern concept of progress: that of the linearity of time.

1. Introduction Others say, [Constitution] is our Fate; Others say, [Constitution] is our State; Others say, others say [Constitution] is no more, [Constitution] has gone away.

*

Adjunct Professor of International Law, University of Brasilia (Brazil). I would like to express my gratitude to Jan Klabbers, Martti Koskenniemi, Marcelo Casseb Continentino, Otávio Trindade and two anonymous reviewers of this Yearbook. They have patiently read a draft of this article and made important suggestions.

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This is a famous, slightly modified strophe from W. H. Auden’s widely acclaimed poem ‘Law like Love’.1 Such poetic license can be justified. Lawyers, in recent decades – international lawyers included – have constantly found the mere word ‘law’ not compelling enough to make evident the binding nature of legal institutions and rules. The word constitution has, on the other hand, often been deployed as a much more powerful tool than the word law in legal argument. Hence, it is fair to say that, in present times, constitution fits conveniently – despite the loss in melody and rhythm – in Auden’s brilliant lines. The language of constitutional law has impregnated contemporary international law in several different ways (e.g., with terms such as constitution, constitutionalism, and constitutionalisation), so that it has become extremely difficult to discern the extent, if any, of the relationship or dialogue between international law and constitutional law. The controversies are not restricted to the meaning of those terms; they also involve the classifications of different approaches to the debate, where there is no consensus at all.2 Sometimes, after reading a significant number of works on international (or global) constitutional law, the reader has the impression that constitution is everywhere in international law and that, at the same time, it ‘has gone away’. In this article, I do not intend to explain the meaning of international constitutional law or of a number of terms related to it. Neither will I present another classification for discussion nor formulate a new way of thinking about international constitutional law. My aim is rather modest: I will try to bring new insights into critiquing contemporary constitutionalist positions in the international legal discipline, while taking into account the – sometimes rather unclear – idea of progress they imply. While there are different versions of constitutionalism in contemporary international law, 3 this article will address a specific one – which is embraced, however, by several authors. I borrow from Wouter Werner the characterisation of such constitutionalism: ‘as an attempt to explain existing developments in international law in terms borrowed from domestic constitutionalism, with the aim of furthering a normative

1. 2.

3.

W. H. Auden, Collected Poems (Modern Library: New York, 2007) at 260. With some irony, Michael Wood, in his critique to constitutionalist approaches, acutely summarises the problem with the ‘use of language’ in this area: ‘The followers of particular theories have a tendency to create their own closed world, in which words are used with special meanings, understood only by the initiated’. Michael Wood, ‘“Constitutionalization” of International Law: A Sceptical Voice’, in K.H. Kaikobad and M. Bohlander (eds), International Law and Power: Perspectives on Legal Order and Justice. Essays in Honour of Colin Warbrick (Brill: Leiden, 2009) 85-97 at 91. Christine E. J. Schwöbel, ‘Organic Global Constitutionalism’, 23 Leiden Journal of International Law (2010) 529-553 at 533. Contains a very useful and updated classification of different constitutionalist approaches in international law.

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agenda of internationalism, integration and legal control of politics. This way of using the language of constitutionalism is based on two desiderata: to remain within the boundaries of positive law, and to contribute to a normative, internationalist project. While international constitutionalism thus aims to uphold the distinction between “law as it is” and “law as it ought to be”, it also tries to make sense of developments in international law from a clear normative preference: the furtherance of legal unity, international integration and fundamental human rights, an anti-nationalistic understanding of sovereignty, a relaxation of the requirement of state consent and the regulation of political power through legal institutions’.4

The defence of such kind of constitutionalism is frequent among Germanspeaking international lawyers,5 but can also be found elsewhere, especially among continental European international lawyers. Unless otherwise stated, when I use the expression international (or global) constitutionalism, it is to this kind of constitutionalism I refer. Compared to the domain of international constitutional law, much less has been written about the impact of the idea of progress to present and past international law.6 Although some efforts have been made by critical legal thinkers in this direction,7 the consequences of conceiving international law in terms of progress are generally neglected by international lawyers. The problem is that ‘[t] he power of Progress is everywhere preponderant, and it is preponderant precisely because Progress is the supreme source of power’.8 4. 5. 6. 7.

8.

Wouter Werner, ‘The Never-Ending Closure: Constitutionalism and International Law’, in Nicholas Tsagourias (ed) Transnational Constitutionalism: International and European Models (Cambridge University Press, 2007) 329-367 at 330. For a general overview of the German attitude in relation to international constitutionalism, see Pierre-Marie Dupuy, ‘Taking International Law Seriously: The German Approach to International Law’, 50 German Yearbook of International Law (2007) 375-392. I have made the very same point elsewhere. See George R. B. Galindo, ‘Progressing in International Law’, 11 Melbourne Journal of International Law (2010) 515-529. When I speak about efforts to reflect upon the concept of progress in international law, I think specifically about the works of Koskenniemi, Kennedy, and Skouteris. In this regard see especially Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870-1960 (Cambridge University Press, 2001), David Kennedy, ‘International Law and the Nineteenth Century: History of an Illusion’, 65 Nordic Journal of International Law (1996) 385-420 and Thomas Skouteris, The Notion of Progress in International Law Discourse (TMC Asser Press: The Hague, 2010). Richard Collins has recently published a powerful critique against international constitutionalism, seriously taking into account its progressive character. Richard Collins, ‘Constitutionalism as Liberal-Juridical Consciousness: Echoes from International Law’s Past’, 22 Leiden Journal of International Law (2009) 251-288. Collins’ critique, from my point of view, could be considered more as an ideological critique against international constitutionalism’s progressive character. As I will argue later, progress as ideology is only one aspect of the concept, introduced especially in the nineteenth century. My critique against international constitutionalism attempts to be broader, encompassing other aspects of the concept of progress. Harry Redner, In the Beginning Was the Deed: Reflections on the Passage of Faust (University of California Press: Berkeley, 1982) at 15.

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Faith in progress is powerful since it promises control of nothing less than time itself. Supporters of the constitutionalist view normally tend to believe that international law already has a constitutional structure or is developing one. In both cases, the future is something controlled by the power of international lawyers: in the first case, because the future has already come, and other alternative projects to the discipline are banned forever from the field; and in the second case, because what international law will become in the near or far future is predetermined. Doctrines of international law grounded on the concept of progress not only fail to leave the door open for different projects in the discipline, but also, we may conjecture, they take an important part in legitimating the current state of affairs in international relations,9 where inequalities and injustices are common in the lives of millions of peoples, especially those located in the Third World or in a marginalised strata of people living in rich countries.10 There are plausible arguments to state that international legal norms and institutions, the way they exist today, contribute enormously to causing poverty.11 This means that every single norm and institution in a given legal system must be open to scrutiny. Even the most basic principles of international law or of the international organisations created to promote peace and harmony among peoples are not exempt from critique. Much of the debate on constitutionalism in international law starts from the point that certain institutions (such as the United Nations), basic values, and principles are given in the international realm. They must be enforced, interpreted, or at least better adjusted, adapted 9.

Nico Krisch, for instance, puts it clearly: ‘[I]n a setting as inegalitarian as that of global politics, efforts at providing a stable framework of rules and institutions – at “constituting” international society – are bound to sanction structures that primarily benefit the powerful’. Nico Krisch, ‘Global Administrative Law and the Constitutional Ambition’, in Petra Dobner and Martin Loughlin (eds), The Twilight of Constitutionalism? (Oxford University Press, 2010) 245-266 at 255. This seems also to be suggested by Ignacio de la Rasilla del Moral, ‘The Unsolved Riddle of International Constitutionalism’, 12 International Community Law Review (2010) 81-110 at 105. 10. It is important not to forget that the ‘ideology of poverty’ often tends to disregard the poverty found in many rich countries. See Susan Marks, ‘The Ideology of Poverty’, in Hélène Ruiz Fabri, Emmanuelle Jouannet and Vincent Tomkiewicz (eds), Select Proceedings of the European Society of International Law (Hart Publishing: Oxford, 2008) 297-305. 11. See the rich discussion in Thomas Pogge, ‘The Role of International Law in Reproducing Massive Poverty’, in Samantha Besson and John Tasioulas (eds), The Philosophy of International Law (Oxford University Press, 2010), 417-436 (who convincingly responds to the three main strategies that deny the function of international law in reproducing poverty). It is undeniable that poverty took a very long time to ‘penetrate’ the language of international law. See M. Mahmoud Mohamed Salah, ‘Droit International et Pauvreté’, in Hélène Ruiz Fabri, Emmanuelle Jouannet and Vincent Tomkiewicz (eds), Select Proceedings of the European Society of International Law (Hart Publishing: Oxford, 2008) 307-324 at 309. However, such penetration did not make things better, and Chimni is right when he says that ‘international law is the principal language in which domination is coming to be expressed in the era of globalization’. B.S. Chimni, ‘Third World Approaches to International Law: A Manifesto’, 8 International Community Law Review (2006) 3-27 at 3.

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or applied, but never deleted. This is, in my view, a fundamental flaw, since it is impossible to know, first hand, if those norms and institutions work to reduce inequalities and promote justice. If there is a role for international lawyers, it must consist of the responsibility not to compromise with others’ suffering and with an unequal world. If there is an a priori in international legal thinking, this must be the only one. Issues of distributive justice, thus, must be urgently addressed by the discipline. In a lucid account, rarely found among international lawyers, Philip Alston states, targeting the international law profession: ‘[T]he ‘boys’ who dominate the profession are indeed preoccupied with weapons and fighting and enemies. Questions of nurturing and sustaining, which are the real stuff of redistributive justice, can be done by others’.12 This article is divided into two main parts. First, I will try to make clear what I understand by the concept of progress – although I might recognise that this is a difficult task, since progress is and was used in several different ways in social thought. In the second part, I will point out how constitutionalist approaches to international law – taking into account the characterisation of international constitutionalism by Werner – are deeply rooted in a concept of progress and will examine some of the consequences it brings to international law in terms of legitimating the status quo. I do not say that every constitutionalist perspective in international law falling into that characterisation has all the traits detailed above, but that at least one of these traits can be found in those constitutionalist perspectives today. This discussion will be followed by some concluding remarks.

2. Variations in Progress It seems virtually impossible to understand what progress means without looking at its different uses through the centuries. No general and abstract idea seems to fit with the exuberant mutability of the concept of progress through the centuries. If, today, it is generally agreed that progress means at least ‘a clear objective determination of direction’, being those ‘most historically important concepts of progress … simultaneously tied to standards of value (progress towards something which is subjectively better)’,13 this does not say much about what such direction and amelioration imply and how they operate. Furthermore, it does not reveal how the concept was conceived in the past. Just like constitutionalism, progress – in the way it is conceived today – is a modern concept. In general terms, the word did not imply, at least in Greece and in Rome, a sense of amelioration or improvement. Rather, the word was 12. Philip Alston, ‘Remarks on Professor B.S. Chimni’s A Just World Under Law: A View From The South’, 22 American University International Law Review (2007) 221-236 at 231. 13. Erwin Faul, ‘Origins, Development and Crisis of the Idea of Progress’, 31 Law and State (1985) 7-41 at 13.

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often used in a descriptive way, to designate the process of change or mutation in relation to a specific object.14 The origins of the modern concept of progress can be more clearly found in the Middle Ages, under the influence of several theological ideas. If there is a strong debate about whether or not progress has taken on a completely secularised vocabulary in contemporary political thinking, the vast majority of authors at least agree that religion massively influenced the development of the concept.15 The influential analysis of Löwith, for example, sees progress as a substitute for the theological idea of providence and contends that the main challenge for many theories of progress was ‘how to replace and supersede the central doctrines and the social system of the ancient Christians’.16 Historians like Reinhart Koselleck have acutely shown that in the Middle Ages, the concept had no temporal connotation, but only a spatial one: Progress (profectus) meant spatial movement and could not be identified as a historical concept. The antithesis for profectus was permutatio. Movement and stagnation were not generally seen as elements in an unstoppable flowing time, as moderns have repeatedly seen them throughout the centuries.17 However, gradually many medieval thinkers started to believe that the religious growing of the consciousness opened spaces for a better time. The seeds for a temporalisation – and later on also a historicisation – of the idea of progress can certainly be seen in Augustine’s explanation for the delay of the parousia. Differently from the primitive Christian thinkers, he did not see in the parousia a sudden temporal interruption, but a ‘growing accomplishment’. Furthermore, Augustine’s conception of time in linear terms – also supported by influential theologians like Joachim of Fiore – helped to craft a different concept of progress.18 Progress in a temporal rather than a spatial sense, however, becomes clear only during the Renaissance. The religious idea of the end of time is transformed into the idea of an open future. The querelle of the ancients and the moderns paves the way for this transformation: traditions do not necessarily need to be followed, since the present is superior to the past in the same way an adult is superior to a youngster.19 Francis Bacon, considered by many one of the ‘founders’ of the modern 14. See Christian Meier and Reinhart Koselleck, Progresso. I Concetti Della Politica (2nd edn, Marsilio Editori: Venezia, 1994) at 8. 15. For this discussion, see, e.g., Nathan Rotenstreich, ‘The Idea of Historical Progress and its Assumptions’, 10 History and Theory (1971) 197-221. 16. Karl Löwith, Meaning in History: The Theological Implications of the Philosophy of History (University of Chicago Press, 1949) at 61. 17. Ibid., at 22-23. 18. Ibid., at 26-27. See also Pierre-André Taguieff, Le Sens du Progrès: Une Approche Historique et Philosophique (Flammarion: Paris, 2006) at 102. 19. Meier and Koselleck, Progresso, supra note 14, at 32-34.

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concept of progress, made this point by saying that the past was an obstacle to the present: ‘Again, the reverence for antiquity, and the authority of men who have been esteemed great in philosophy, and general unanimity, have retarded men from advancing in science, and almost enchanted them’.20 But such superiority was deeply rooted in a sense of conservatism, for the moderns were superior to the ancients because they were able to keep what the latter achieved and make further advances. In Bacon and others at that time, although one can identify a visible conception of time in linear terms,21 progress is still entrenched in the limits of what now is called ‘technical progress’; in other words, the advancement (and amelioration) made by human beings in terms of the use of reason. Therefore, ‘the circular, natural conception of time is replaced by a progressive time in which human reason perfects itself ’.22 Progress in the sense of a constant amelioration also takes shape through the influence of Condorcet’s ideas. For him, the term perfectionnement describes the ‘processual character of the progression infinite’. And ‘[a]s perfectionnement temporalises the concept of perfectio, by using the theological expression in a historically new way, it articulates a specifically new time experience’.23 Here, progress is not restricted to scientific knowledge, but comprises, as the title of one of his most important books evidences, the ‘human spirit’. For Condorcet, the perfectibility (perfectibilité) of the human being is ‘really indefinite’ (indéfini). For him, progress can be slow or fast, but it never goes backwards, and this is so because of the laws of nature.24 By stating that perfectibility is indefinite, Condorcet views the process (of perfectibility or amelioration) as an end in itself. The process is, thus, the very telos of progress, and more, the idea of the inevitability of progress gains monumental support.25 Kant’s idea of a universal history with a cosmopolitan purpose views progress as a growing moralisation of human beings. Slightly different from Condorcet, for him, ‘universal history is made possible by means of the application of natural teleology to rational beings’, reason being understood as a ‘natural capacity’.26 Progressing is, in fact, a moral duty for Kant, necessary and dependent more upon human beings than on nature.27 In his words, ‘This ultimate purpose of pure 20. Francis Bacon, Novum Organum (first published 1620) (Joseph Devey ed., P.F. Collier & Son: New York, 1902) at 61. 21. Taguieff, Le Sens, supra note 18, at 98, 153. 22. Reinhart Koselleck, ‘The Temporalisation of Concepts’, 1 Finnish Yearbook of Political Thought (1997) 16-24 at 17. 23. Ibid., at 18. 24. Antoine-Nicolas Condorcet, Esquisse d’un Tableau Historique des Progrès de L’Esprit Humain (Agasse: Paris, 1794) at 4-5. 25. See Faul, ‘Origins’, supra note 13, at 26-28. 26. M. J. B. McCloughan, ‘Kant’s Theory of Progress’, PhD thesis, University of London (2003) at 38. 27. Meier and Koselleck, Progresso, supra note 14, at 48-49.

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practical reason is the highest good …. This object of reason is super-sensible; to progress toward it, as ultimate purpose, is duty’.28 Hegel preferred using the word process instead of progress.29 However, it is clear in him that this process, the tension between transformation and conservation, meant the following of history in a certain direction which is, from his perspective, the realisation of human freedom.30 Again, the idea of process plays a crucial role in conceiving progress, but it is now conceived within the apparatus of a very articulated philosophy of history. In the nineteenth century, progress became the word of the day. Almost invariably in every field of knowledge, it exerted a considerable influence. From Marx to Comte, from the left to the right, many were compelled to consider themselves as progressives. In fact, at this time, the concept of progress became what could be nowadays called an ideology. Increasingly, progress became definable only by its opposite: regression, or decay.31 The future projected by others will be considered fundamentally flawed if it does not fall in the boundaries of what a certain specific perspective considers ‘progressive’. Progress becomes, thus, an essential tool for the creation and maintenance of a dichotomy between right and wrong, good and evil – civilised and uncivilised nations, we could add – where no middle grounds were allowed. The influence of social Darwinism cannot be underestimated in this period either. By sustaining the idea that society followed the laws of evolution, evolutionary concepts contributed enormously to the perspective of a naturalised history, but not in the same way the eighteenth century made use of the word nature. Here, progress becomes ‘progress tout court’, in other words, the ‘subject of itself ’.32 In this way, it turned into a true (political) faith centred in the future.33 Such ‘progress for progress’ sake’, albeit grounded on the idea of an open time, led, despite its rhetorical force, to an empty and meaningless time: ‘It is the time which never begins or ends, the time which knows no bounds and no goals: eternal time’.34 The telos of progress became, consequently, the progress itself. In the twentieth century, the critique against the idea of progress grew not only in social thought, but also in the arts. This reaction, however, did not pre28. Immanuel Kant, ‘What real progress has metaphysics made in Germany since the time of Leibniz and Wolff’, in Henry Allison and Peter Heath (ed), Theoretical Philosophy After 1781 (Cambridge University Press, 2002) 337-424 at 383. 29. See G. W. F. Hegel, The Philosophy of History (first published 1824) (Batoche Books: Kitchener, 2001). 30. Meier and Koselleck, Progresso, supra note 14, at 80-85. 31. Ibid., 94-95, 98-99. See also Reinhart Koselleck, Il Vocabolario Della Modernità. Progresso, Crisi, Utopia e altre Storie di Concetti (Il Mulino: Bologna, 2009) at 49-71. 32. Meier and Koselleck, Progresso, supra note 14 at 58. 33. Taguieff, Le Sens, supra note 18, at 52. 34. Johann Baptist Metz, ‘God: Against the Myth of the Eternity of Time’, in Tiemo Rainer Peters and Claus Urban (eds), The End of Time? The Provocation of Talking About God (Paulist Press: Mahwah, 2004), 26-46 at 30.

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vent wide use of the concept, especially as an instrument for political rhetoric (the naming of parties as progressive or the defence of progressive approaches towards the common good are only a few examples of such usage). Nor did criticism prevent the advent of some features inherent to the concept of progress, although sometimes with different labels. Traditions of thought attached to the conception of progress followed by thinkers like Kant, Hegel, Marx, Spencer, Condorcet, or Comte still have a profound impact on the way history, ideas, society and law are conceived. If we assume that progress has at least some constitutive characteristics (a movement in time towards the better that is linear, cumulative, continual, necessary, irreversible and indefinite),35 it seems evident that many of them did not simply disappear but were reinforced, sometimes with different labels. Also, similar to conceptions about progress as supported by different thinkers in the past, it is only sometimes that those characteristics all appear together. In the following discussion, I argue that, despite the apparent ‘death of progress’ engendered by its opponents, international constitutionalism appropriates many of those features that characterise the modern concept of progress. Sometimes this is not explicit, but those features are there, and they contribute enormously to thinking of the international legal system as uncommitted to past and present injustices. The progressive reading of international law tends to split the world into two – the Global Rich and the Global Poor, as suggested by Chimni36 – with progress being on the side of only one of them.

3. Constitutionalisation and Primitive Law One important question arises for someone who is encountering the literature on international constitutionalism for the first time: why does international law need to pass through a process of constitutionalisation? Or, why does international law need a constitution at all? In order to prove the need for a constitution or a constitutionalisation, an image of international law must be constructed as an imperfect, less evolved, or primitive law. But for one to say that a legal order is primitive there must be a reference, a structure, or a set of rules for purposes of comparison. The mould of the legal order of the European nation state fulfils such a role perfectly. In the interwar period, authors such as Lauterpacht, Kelsen and Scelle often used constitutional analogies – separation of powers, judicial review, e.g. – to envisage a goal for the future development of international law. After the end of the cold war, where there are barely alternative domestic legal orders to compare, a similar 35. Taguieff, Le Sens, supra note 18, at 111. 36. See B.S. Chimni, ‘A Just World under Law: A View from the South’, 22 American University International Law Review (2007) 199-220 at 212.

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strategy has been deployed by international constitutionalist enthusiasts.37 The primitive nature of international law is thus explained by its counterpart: domestic constitutional orders established after centuries of the development of European constitutionalism. A few examples suffice to demonstrate such approach. Already in 1886, the American scholar John Norton Pomeroy made this idea clear. For him, ‘[i]nternational law may, therefore, be considered … an imperfect positive law, both on account of the indeterminateness of its precepts, and because it lacks that solid basis on which rests the positive law of every particular nation, the political power of the state, and a judicial authority competence to enforce the law’.38 In the interwar years, different approaches to international law took for granted the primitive or imperfect nature of international law. Georges Scelle’s solidarism was no exception. The World Federal State envisaged by him was nothing less than a unity encompassing international and domestic law in the image of the latter. The idea of role splitting (dédoublement fonctionnel), for example, which played an essential role in Scelle’s theory, was grounded on the assumption that primitive societies were characterised by a ‘confusion of functions’.39 It is well known that Hersch Lauterpacht condemned the characterisation of international law as a primitive law. But this did not mean that he recognised it as perfect or as having a well developed character. On the contrary, he conceived international law as an admittedly imperfect system which, in the future, would be replaced by a world law. Lauterpacht’s rejection of the primitiveness of international law was much more related to the fact that other international lawyers of his time – his adversaries – emphasised the primitive character of the international legal system in order to argue that it would not be in the future as developed as state domestic laws were. Such language, in his view, sanctioned the imperfection and prevented the development of international law. In sum, also for Lauterpacht, international law was not perfect and could even be characterised as primitive, but such a state of affairs was not a reason for preventing it from being pushed into a world state. He also saw in international law the reflection of domestic state law.40 37. Susan Marks’ reflections on the role of democracy and the end of history in the field of international law are plausible explanations for the reason why international legal thinking is so attached to certain forms of institutional design that are linked to ideas like democracy or, I would add, constitutionalism. See Susan Marks, ‘The End of History? Reflections on Some International Legal Theses’, 3 European Journal of International Law (1997) 449-477. 38. John Norton Pomeroy, Lectures on International Law in Time of Peace (Houghton, Osgood and Co.: Boston, 1886) at 21. 39. Georges Scelle, ‘Règles Générales du Droit de la Paix’, 46 Recueil des Cours de l’Académie de Droit International de la Haye (1933) 331-697 at 623. 40. Hersch Lauterpacht, The Function of Law in the International Community (Clarendon Press: Oxford, 1933) at 432-434. It is not a coincidence that Lauterpacht is seen as a precursor of international constitutionalism. See Werner, ‘The Never-Ending’, supra note 4, at 337.

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Even after World War II, authors like Hans Kelsen insisted on making use of the idea of primitive law several times in order to characterise international law. For him, it is ‘precisely by the degree of centralisation’ that it is possible to distinguish the state community from the primitive (pre-state) and the international (supra-state) legal communities. The lack of centralisation in the application of sanctions and the lack of monopoly in the use of force were some representative examples whereby Kelsen showed that international law was not able to function as state domestic law did.41 Kunz, one of the most eminent disciples of Kelsen, had made clear the same point years before by saying that ‘[t]he primitive character of international law is a consequence of its primitive organization’.42 It seems patent that some international constitutionalist approaches depart from the same assumptions those international lawyers did in the past. Although not explicitly deploying the language of primitive law, terms such as ‘evolution’ or ‘development’ appear quite often in some writings.43 The main problem with such a continuity of ideas is that it follows a narrative of progress where the old, the imperfect, and the primitive must be driven out by the new, perfect, or more evolved state domestic law. Of course, constitutionalist supporters strongly criticise the idea that constitutionalism is a ready-made and perfect construct. Many admit that several adjustments should be made to refine it, especially when the idea is applied to the field of international law; but there are no options outside the frame of constitutionalism: international law must be 41. Hans Kelsen, ‘Théorie du Droit International Public’, 84 Recueil des Cours de l’Académie de Droit International de la Haye (1953) 1-201 at 71-72. Even during the inter-war period, Kelsen had made use of the primitive law analogy a number of times. See, e.g., Hans Kelsen, ‘Théorie Générale du Droit International Public: Problèmes Choisis’, 42 Recueil des Cours de l’Académie de Droit International de la Haye (1932) 121-351 at 130. 42. Josef L. Kunz, ‘The Theory of International Law’, 32 Proceedings of the American Society of International Law (1938) 23-43 at 30. A large number of authors have supported the view of international law as a primitive system. To stay with just two examples in the United Kingdom, we could mention Brierly and, notoriously, H. L. A. Hart (who made such a defense even after World War II). See, respectively: James-Leslie Brierly, ‘Règles Générales du Droit de la Paix’, 58 Recueil des Cours de l’Académie de Droit International de la Haye (1936) 5-237 at 115 and H. L. A. Hart, The Concept of Law (2nd edn, Oxford University Press, 1994) at 213-237. 43. For instance, De Wet states: ‘the international community developed over time. Within this evolutionary process, the adoption of the United Nations Charter (the UN Charter) constituted a definitive moment in the emergence of an international community’. Erika de Wet, ‘The International Constitutional Order’, 55 International and Comparative Law Quarterly (2006) 51-76. Similarly, for Weller, constitutionalism seems to be the synthesis of international law’s evolution after 1945. In his view, ‘[t]hese developments consist of the consolidation of international core values, the move away from the principle of strict consent in the creation of international legal rules with universal ambition, the increasingly complex variety of international actors, and the management of compliance with international legal obligations’. Marc Weller, ‘The Struggle for an International Constitutional Order’, in David Armstrong (ed), Routledge Handbook of International Law (Routledge: Oxford, 2008) 179-194 at 180.

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impregnated by constitutional law.44 Besides that, this is a typical characteristic of the major part of conceptions of modern progress, since security and rationality are overvalued.45 Nothing can be incoherent or mistaken (not even history). Recent scholarship has emphasised that the idea of legal primitivism is a byproduct of the nineteenth century. It was a construct that has certainly provided a space for legal change. While reflecting ‘an earlier golden age or, alternatively, to remark upon a troubling past which had been transcended’, it provided ways to build new institutions and rules by distinguishing the law of the past and the law that could be (the law of the future). At the same time, however, the idea ‘emerged within the framework of colonialism. The distinction between the primitive and the modern has had its uses in sustaining patterns of domination over indigenous peoples’.46 Especially if we take into account that Darwinism influenced the way legal primitivism was conceived, it is not difficult to come to the conclusion that the law of the other (that of non-European peoples) suddenly became less evolved and that it should be substituted with a civilised one.47 In any case, what constituted a primitive law was an ideal-type, since it was (and is) virtually impossible to generalise all the kinds of primitive law that allegedly existed (or exist) in the world.48 This is a strategy of stigmatising the past to open the way for a pre-determined future. It was not the succession of events and the passing of years that generated a need for supplanting primitive law and replacing it by a modern (European-type) law, but the a priori judgment that primitive law was inferior. In other words, it was not time that judged the primitiveness of law, but a very concrete subject: human beings. This is a progressive way of thinking since it presupposes the idea of accumulation. Time is conceived as an ‘open continuum’ that ‘can absorb more and more 44. One example, among many, can be provided. In the conclusion of his book on the issue, Fassbender puts clearly the absolute need for a constitution in international law. In his words: ‘If the future landscape of international relations will know a legal order at all, as an order based on the principles of self-determination, autonomy and equality to all nations, a universal constitution will have to be an essential element of that order, whether the word is used or not’. Bardo Fassbender, The United Nations Charter as the Constitution of the International Community (Martinus Nijhoff: Leiden, 2009) at 171. 45. Taguieff, Le Sens, supra note 18, at 77. 46. Steven Wilf, ‘The Invention of Legal Primitivism’, 10 Theoretical Inquiries in Law (2009) 485-509 at 490-491. 47. Many examples could be provided of the extent to which colonialism shaped international legal institutions and rules, but this is not the purpose of the present article. For two general good overviews on the issue of colonialism and international law, see Koskenniemi, The Gentle Civilizer, supra note 7 and Antony Anghie, Imperialism, Sovereignty, and the Making of International Law (Cambridge University Press, 2005). On the issue of the ‘otherness’ in international law and its implications to several aspects of the discipline, see Anne Orford (ed), International Law and its Others (Cambridge University Press, 2006). 48. For this good point, see A. Campbell, ‘International law and Primitive Law’, 8 Oxford Journal of Legal Studies (1988) 169-196 at 178-179.

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contents’.49 Just as Francis Bacon contended, moderns are superior to ancients because they can ‘store’ a larger amount of knowledge. So, ‘modern’ law is superior to ‘primitive’ law because of the succession of events that have clarified the idea that the current way of living is superior to the way primitive people lived. But the insurmountable difficulty is that no one has an indefinite memory to remember all events, all knowledge that was ‘stored’ for the sake of progress. Only an omnipotent person has such power; only God is capable of remembering all.50 But we are not God, and progress is not, for us moderns, salvation. And since we cannot remember so well, many who suffer will be lost on the path towards progress, those we consider primitive human beings with their primitive law. Today, the building of a dichotomy between present and past, contemporary and classical international law is seen by constitutionalist supporters as an indispensable piece in the jigsaw that will lead the international realm to a better, much evolved (constitutional) structure. International law needs to be filled with something: with constitutionalism. The move is similar to that made by Lauterpacht to justify the use of domestic analogies. They are necessary ‘for the simple reason that international law has not, in the particular case, developed any rules of its own. In fact, there would be no need to have recourse to general jurisprudence, if there were an international law rule ready at hand’.51 The huge problem is when the search for a ‘rule ready at hand’ becomes eternal. This leads us to the next topic.

4. Constitutionalisation as a Never-Ending Project Most of the constitutionalist supporters tend to agree that there is no constitution in current international law.52 In this way, constitutionalisation is normally 49. Rotenstreich, ‘The Idea’, supra note 15, at 201. 50. For a summary of a similar discussion about the ‘memory of God’ that involved Walter Benjamin and Max Horkheimer, see Reyes Mate, ‘En Torno a una Justicia Anamnética’, in José M. Mardones and Reyes Mate (eds), La Ética ante las Víctimas (Anthropos: Barcelona, 2003) 100-125 at 115-120. 51. Hersch Lauterpacht, Private Law Sources and Analogies of International Law (Longmans, Green and Co.: London, 1927) at 34. 52. One of the most notable exceptions in contemporary international law is, of course, Bardo Fassbender, who strongly supports the idea, since at least his famous article published in the nineties, that the United Nations Charter is the Constitution of the international community. See Bardo Fassbender, ‘The United Nations Charter as Constitution of the International Community’, 36 Columbia Journal of Transnational Law (1998) 529-619. For an updated and more elaborated version of his thesis, see Bardo Fassbender, The United Nations Charter as the Constitution, supra note 44. However, in this late work, Fassbender seems also to support the idea of constitutionalism as process when he says, ‘International constitutionalism thus is a progressive movement which aims at fostering international cooperation by consolidating the substantive legal ties between states as well as the organization structures built in the past’. The

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referred to as a process or a movement towards a world constitution (which can take different forms), something not given, but a promise to the future.53 A good example of such an approach towards constitutionalism is the one embraced by the influential jurist and judge at the German Federal Constitutional Court, Brun-Otto Bryde. For him, ‘[t]he process of constitutionalisation of international law is indeed neither complete nor systematic. But it has started and made greater progress than often assumed, even if there is still a long way to go’.54 Similarly, Anne Peters, following the idea that a ‘compensatory constitutionalism’ is necessary in order to establish ‘a counterpoint to the phenomenon of de-constitutionalization of domestic legal orders’,55 argues that ‘“global (or international) constitutionalization” is a catchword for the continuing process of the emergence, creation, and identification of constitution-like elements in the international legal order’.56 One can also add Erika de Wet’s idea of an emerging Verfassungskonglomerat, where ‘the development of an international community with an international value system leads to the replacement of the traditional, dualist system with a more integrated system’,57 as an approach that assumes constitutionalisation as an ongoing process. And Susan Brau discerns a ‘movement toward constitutional principles’.58

53.

54. 55.

56. 57. 58.

main difference is that the existence of a constitution in international law is a starting point, not an ending point. But such existent constitution must also evolve, since it is not implied that it ‘reached a state of perfection or anything close to it’. Ibid., at 44, 171. Another example is Robert Kolb, for whom international law already has a constitutional structure, once it is founded on grand principles. Curiously, differently from other constitutionalist supporters, Kolb sees the international legal system ‘progressing’ from a constitutionalist structure towards an administrative structure, in which international law will be founded on more concrete norms. See Robert Kolb, ‘La Structure Constitutionnelle du Droit International Public’, 39 Canadian Yearbook of International Law (2001) 69-115. See especially Christian Walter, ‘International law in a Process of Constitutionalization’, in Janne Nijman and André Nollkaemper (eds), New Perspectives on the Divide Between National and International Law (Oxford University Press, 2007), 191-215 at 192 (which identifies a common feature in the diverse meanings of the term constitutionalisation in international law – that of a process) and also Christian Walter, ‘Progress in International Organization: A Constitutionalist Reading’, in Russell A. Miller and Rebecca M. Bratspies (eds), Progress in International Law (Brill: Leiden, 2008) 133-150 at 142. Brun-Otto Bryde, ‘International Democratic Constitutionalism’, in Ronald St. John Macdonald and Douglas M. Johnston (eds) Towards World Constitutionalism: Issues in the Legal Ordering of the World Community (Brill: Leiden, 2005) 103-125 at 106. Anne Peters, ‘Reconstruction Constitutionnaliste du Droit International: Arguments Pour et Contre’, in Hélène Ruiz Fabri, Emmanuelle Jouannet and Vincent Tomkiewicz (eds), Select Proceedings of the European Society of International Law (Hart Publishing: Oxford, 2008) vol. 2, 2006, 361-375 at 371. Anne Peters, ‘Compensatory Constitutionalism: The Function and Potential of Fundamental International Norms and Structures’, 19 Leiden Journal of International Law (2006) 579-610 at 582. De Wet, ‘The International Constitutional’, supra note 43, at 75. Susan C. Breau, ‘The Constitutionalization of the International Legal Order’, 21 Leiden Journal of International Law (2008) 545-561 at 560.

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A few authors even go so far as to consider this process or movement as ‘unavoidable’, due to the ‘collapse’ of traditional concepts important to the classical and modern international system, such as that of ‘unipolar sovereignty’.59 One of the most interesting aspects of the argument for constitutionalisation as a process or movement is that it positions its supporter in the apparently comfortable position of being labelled as neither an idealist nor a realist. Since it is extremely controversial to say that there is a constitution in today’s international law, the vocabulary of process is deployed, and the proposed constitution is projected to the future. At the same time, in order not to be associated with the crude reality of anarchy in international relations, they state that there is an ideal, a telos for international law, which is to develop the seeds of a constitution already existent in the shape of common values, fundamental principles, ‘community interests’60 or any kind of consensus among states or peoples.61 When such a development will finally take place, nobody knows. This kind of strategy has been aptly identified by Martti Koskenniemi in his postulation that international lawyers invariably try to find a way between doubles such as positive and natural law, realism and idealism, concreteness and normativity, apology and utopia.62 Such a strategy may sound like a successful one for some because it tries to situate constitutionalisation outside the battlefield, a higher ground where there are no enemies, no counterarguments. If a constitution can only be identified in the future so that it is not a creature of our time, 59. Weller, ‘The Struggle’, supra note 43, at 193. Jochen Forwein, another international constitutionalist advocate argues, assuming the inevitability of the process, ‘The international legal order should still be seen as mainly based on the will of the States as expressed in bilateral and multilateral treaties… [I]t would not seem that there is any retreat possible… [T]he threshold to a constitutional structure has long been crossed’. Jochen A. Frowein, ‘Reactions by not Directly Affected States to Breaches of Public International Law’, 248 Recueil des Cours de l’Académie de Droit International de la Haye (1994) 345-438 at 365. Although highly sophisticated, Christian Walter’s analysis sometimes fall into the trap of futurology – which is something very close to the advocacy of inevitability in the process of constitutionalisation. That is the case when he says, for example, that it is possible to predict that international legal regimes will present certain common features in the future. See Walter, ‘International Law in a Process’, supra note 53, at 214. 60. In recent years, such an expression has been strongly associated with the course given by Bruno Simma-another influential proponent of international constitutionalism – at the Hague Academy of International Law. See Bruno Simma, ‘From Bilateralism to Community Interest in International Law’, 250 Recueil des Cours de l’Académie de Droit International de la Haye (1994) 221-384. 61. It is not a coincidence that Somek uses the term idealists to classify those who believe international law is in a process of constitutionalisation. See Alexander Somek, ‘Transnational Constitutional Law: The Normative Question’, 3 Vienna Online Journal on International Constitutional Law (2009) 144-149 at 145 (visited 18 January 2011). 62. See Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Reissue with New Epilogue) (Cambridge University Press, 2005).

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and if we do not know what a constitution in international law will really look like, it can barely be attacked or refuted. This is so because proposals that see constitutionalism as a process or movement in international law tend to be grand narratives of progress. Some of them assume that constitutionalisation is an ‘unavoidable’ process. No matter what happens, whether or not some backward steps occur, its victory will be certain, à la, for instance, Condorcet. Although the inevitability of progress may sound like an old-fashioned argument of the eighteenth and nineteenth centuries, it is amazing how it still finds a place in contemporary discussions of international law. Even after two world wars, the failure of the League of Nations and the United Nations in promoting peace, the end of colonialism, the rise of totalitarian regimes and the persistence of different kinds of oppression of the poor around the world, to name just a few examples, we still insist on grounding our arguments mainly on the power of an enlightened reason to solve the problems of current and future generations. If even ‘chance cannot be abolished by the throw of a dice’,63 why would it be different with a constitution in international law? Even when other constitutionalist proposals based on the idea of process or movement do not define themselves as ‘unavoidable’, there is a sense of moral (and inevitable) progress on them. It seems clear that the idea of constitutionalism in international law has become stronger after the terrorist attacks of 11/09 on US territory. In order to counterbalance American hegemony,64 many Europeans, especially Germans, envisioned the idea of a constitution as a break in American efforts to challenge the established normativity in international law.65 In that constitution, ideas such as multilateralism and the principle of the rule of law would be used to tame eventual unilateral actions against positive international legal rules. For instance, Jürgen Habermas’s efforts to bring the United States back to the ideals they helped to forge in the twentieth century by proposing the creation of international organisations such as the League of Nations and the United Nations can be seen as a natural reaction to the US fight against terrorism through the 63. Needless to say, I am quoting Stéphane Mallarmé, Un Coup de Dés Jamais N’Abolira le Hasard (Gallimard: Paris, 1993). 64. In other words, international constitutionalism is often seen ‘as a demarcation line between Europe and the U.S. – a “clash of world views”’. Oliver Diggelmann and Tilmann Altwicker, ‘Is There Something like a Constitution of International Law? A Critical Analysis of the Debate on World Constitutionalism’, 68 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (2008) 623-650 at 647. 65. See Antonio Segura-Serrano, ‘The Transformation of International Law’, Jean Monnet Working Paper 12/09, NYU School of Law (2009) 36, (visited 18 January 2011). The strong support for constitutionalism in Europe and, specifically, in Germany leads us to inquire if ‘global constitutionalism is itself global’. Schwöbel, ‘Organic’, supra note 3, at 535.

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language of constitutionalism.66 In a similar direction, others see US unilateralism as a ‘clear danger’ to ‘the international value system’ present in the process of constitutionalisation.67 The main problem with this kind of discourse is not the fact that constitutionalism as a process or movement sets itself in opposition to American unilateralism, nor that it denounces (correctly) the suffering caused by many American policies towards millions of people around the globe. The problem is assuming that constitutionalism is a moral acquisition of humanity through time, a ‘presupposed ethical high ground’,68 without paying attention to the fact that different projects can govern international law. The idea of moral acquisition is proposed by building a dichotomy about what is good and what is bad for the world, without seeing that reality is, in fact, grey. It is out of the question that we need to make moral choices all the time, but nobody finds what is good or bad in a vacuum, without paying attention to what is on the other side of the river. The concept of what is good “exists in the framework of what is socially feasible”,69 and not in what is a priori considered as feasible. These variations of constitutionalist discourse, although not starting from the premise of inevitability, arrive at similar results. Because they project into international law one allegedly victorious past (constitutionalism within the state), they can see only one future for it (constitutionalism outside the state).70 If the present – which is situated, viewing time as a line, exactly between past and future – does not follow the script – because an opposing project, such as American’s unilateralism seems to be triumphing – ‘the alternative [leads to] despair’.71 In other words, if consti66. See Jürgen Habermas, ‘Does the Constitutionalization of International Law Still Have a Chance?’ in The Divided West (Polity Press: Cambridge, 2006) 115. 67. De Wet, ‘The International Constitutional’, supra note 43, at 76. 68. Schwöbel, ‘Organic’, supra note 3, at 548. 69. Axel Honneth, ‘Pathologies of the Social: The Past and Present of Social Philosophy’, in Disrespect: The Normative Foundations of Critical Theory (Polity Pess: Cambridge, 2007) 3-48 at 37. 70. This is clear in Andreas Paulus statement that because ‘the development of domestic constitutions constitutes the outcome of several centuries, if not millennia, of constitutional thought’, it cannot be cast aside in international constitutionalism. Andreas Paulus, ‘The International Legal System as a Constitution’, in Jeffrey L. Dunoff and Joel P. Trachtman (eds), Ruling the World? Constitutionalism, International Law, and Global Governance (Kindle edn, Cambridge University Press, 2009) 1735 at 2128-2130. Paulus’ thinking on what relates international constitutionalism is difficult to grasp, since he shows both enthusiasm for and skepticism against it. 71. ‘The alternative is despair’ is a quotation used by Berman in his famous article on the emergence of the language of nationalism in international law. Although he does not discuss constitutionalism in that piece, the idea of moral progress embodied in inter-war discussions on international law is not radically different from that used by supporters of international constitutionalism. See Nathaniel Berman, ‘“But the Alternative is Despair”: European Nationalism and the Modernist Renewal of International Law’, 106 Harvard Law Review (1993) 1792-1903.

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tutionalism does not prevail, international law will always be imperfect, morally deprived of something, or in ‘crisis’. Unfortunately (or not), living in society is not easy, and people often disagree, which means that if we are not characters in a movie or in a novel, scripts are not rigidly followed. It means that constitutionalism, as a single and monolithic project, will hardly be achieved. However, its supporters will defend it endlessly, because it is the only, and unavoidable, moral imperative possible. This is Kant’s universal history with a cosmopolitan purpose in action, since constitutionalism in international law ‘understand[s] itself as the embodiment of history’s promise’,72 a promise about which nobody knows when it will be fulfilled. It is also an ideological tool that demonises the opposing sides, the enemies of constitutionalism. It is not a coincidence that some constitutionalist enthusiasts that share the idea of process or movement view fragmentation of international law as the greatest threat to the international legal system.73 Its coherence and unity are being profoundly shaken by the emergence of specific institutions, rules, and even epistemic communities that attempt to follow a different rationality from that traceable in the so-called general international law. It is unquestionable that fragmentation may cause serious problems in international relations. One can think, for example, of the lack of transparency or control in many transnational regimes, such as the Basel Committee or the lex mercatoria, and its deep impact on the lives of many. But fragmentation may offer an opportunity for international law to challenge those concepts of coherence and unity and look at what is behind them. That is the reason why some authors associated with the Third World Approaches to International Law (TWAIL)74 were so enthusiastic with the idea of fragmentation, at least at the threshold of the debate. Some even maintained that the level of fragmentation (or diversification) faced by international law was insufficient: more was needed.75 In this sense, fragmentation 72. Martti Koskenniemi, ‘On the Idea and Practice for Universal History with a Cosmopolitan Purpose’, in Bindu Puri and Heiko Sievers (eds), Terror, Peace, and Universalism: Essays on the Philosophy of Immanuel Kant (Oxford University Press, 2007) 122-148 at 136. 73. One notable example is Pierre-Marie Dupuy, ‘L’Unité de l’Ordre Juridique International’, 297 Recueil des Cours de l’Académie de Droit International de la Haye (2002) 9-489. For a good discussion of the question of whether constitutionalism is an optimal response to fragmentation, see Rene Urueña, ‘Espejismos Constitucionales. La Promesa Inclumplida del Constitucionalismo Global’, 24 Revista de Derecho Publico (2010) 1-23 (visited 18 January 2011). 74. For a summary of TWAIL proposals towards international law, see Antony Anghie and B. S. Chimni, ‘Third World Approaches to International Law and Individual Responsibility in Internal Conflicts’, 2 Chinese Journal of International Law (2003) 77-103. 75. See Obiora Okafor, ‘Viewing International Legal Fragmentation from a Third World Plane’, in Fragmentation: Diversification and Expansion of International Law (Proceedings of the 34rd Annual Conference of the Canadian Council on International Law, Ottawa, October 26-28, 2005) (Canadian Council of International Law: Ottawa, 2006) 115-133.

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was seen as offering the possibility for changing several types of hierarchies still existent in international law – in terms of its institutions, rules, subjects and, more widely, its meaning. Whether or not fragmentation will lead to a more just international law remains to be seen.76 The point is that eternalising a discourse of constitutionalism as a process does not open space for a sudden break, a rupture, something capable of opening new paths for the fulfilment of justice, however difficult it is to achieve the latter. Constitutionalism and many other isms are movement concepts. In this vein, they are not ‘based on a predefined and common experience. Rather they compensate for a deficiency of experience by a future outline which is supposed to be realized’.77 However, in a world so full of injustices, it is alienating to put so much faith in the future and to pay no attention to the experience of those who suffer and who are not in a position to project a future without so many deprivations. In his thesis on the philosophy of history, Walter Benjamin sharply criticises the coupling of the idea of technical progress with that of moral progress. From his perspective, the idea of the progress of humanity was strongly linked to the idea of a homogeneous and empty time.78 This idea constitutes what can be called a dogmatic conception of progress – because technical progress occurs, humanity progresses as well. The telos professed by many constitutionalist supporters is so distant and non-identifiable in time that it becomes empty. A promise that is projected in time nourishes the future, but keeps the present starving. As Jan Klabbers intelligently puts it, ‘constitutionalism manages to postpone (perhaps indefinitely so) more concrete political debates…. There is no need to make difficult policy choices just yet; those can always be made later’.79 If the process of constitutionalisation is endless, it becomes also unreachable. The end of the process can surely be seen as a moral inspiration for its supporters, but it also allows what Pascal called diversion, leading one to condone the reality.80 And the reality is far from being fair for those who are excluded. 76. More recently, Chimni expressed some doubts about the potentiality of fragmentation for change. See B.S. Chimni, ‘The Past, Present and Future of International Law: A Critical Third World Approach’, 8 Melbourne Journal of International Law (2007) 499-515 at 508-509. 77. Koselleck, ‘The Temporalisation’, supra note 22, at 21. 78. Walter Benjamin, ‘Theses on the Philosophy of History’, in Hannah Arendt (ed), Illuminations (Schocken Books: New York, 1968), 253-264 at 260-261. Contending that it is not possible to think about progress without thinking, at the same time, about humanity, Adorno interestingly argues that ‘the sense of the Benjamin passage should then also be more a reproach that the Social Democrats confused progress of skills and knowledge with that of humanity, rather than that he wanted to eradicate progress from philosophical reflection’. Theodor W. Adorno, ‘Progress’, in Critical Models: Interventions and Catchwords (Columbia University Press: New York, 1998), 143-160 at 145. 79. Jan Klabbers, ‘Constitutionalism Lite’, 1 International Organizations Law Review (2004) 31-58 at 46. 80. See Reyes Mate, Medianoche en la Historia: Comentarios a las Tesis de Walter Benjamin “Sobre el Concepto de Historia” (Trotta: Madrid, 2006) at 219. In similar terms, Parodi argues that

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5. Constitutionalism and Exclusion Another issue, much related to the idea of constitutionalisation as a never-ending project, is that of constitutionalisation as a project of exclusion. The idea of difference is lost from sight by the excessive use of transcendental and idealistic concepts, such as international community or mankind.81 Differences are generally simply set aside in the name of grand totalising arguments. This is crystal-clear in the fact that constitutionalism leaves open the question of what states will enter the ‘international community’ and which, consequently, will accept the constitution designed (or yet to be created) to rule it. Invariably, constitutionalism needs to develop criteria to define who is a legitimate or a nonlegitimate state: the insiders and the outsiders of the system. And this leads us to the debate on ‘rogue states’ – an issue too complex to be treated in the limits of this article. In any case, it is not necessary to be one of the initiated to realise that a question promptly presents itself in this context: what to do with states that do not share the same values or principles; that refuse to take part in a ‘constituted’ international environment? In this scenario, the positions vary between two apparently opposed poles: those ‘deviating’ states will be completely excluded from the system, or the majority will ‘incorporate’ them. The first option leads to the institutionalisation of inequalities – the resurrection, with new clothes, of the distinction between civilised and uncivilised nations. The second option does not differ, in essence, from imperialism, since it means the limitless expanding of one (international legal) polity (guided by constitutional principles or values). But the opposition seems to be only apparent. Institutionalised inequalities do not remain the same in time; empires reproduce them in different contexts. One of the greatest legacies of colonialism to international law is that it is always creating ways to suppress the difference. Civilised states managed to talk and interact with uncivilised people, just as the international community finds

the idea of progress ‘can only have a moral character and help to organize or sustain the action if it is considered as a corollary of the idealistic metaphysics’. Such idea ‘appears to be, at the same time, frustrating and annoying (décourageante et énervante)’. D. Parodi, ‘L’Idée du Progrès Universel’, in Bibliothèque du Congrès International de Philosophie. Vol. II: Morale Générale (Collin: Paris, 1903) 181-214 at 211-212. 81. Concepts such as common heritage of mankind play an important role in the structure of the idea of international community. See, e.g., Simma, ‘From Bilateralism’, supra note 60, at 240-242. Mankind appears in the very title of the famous general course given by Tomuschat at the Hague Academy of International Law. See Christian Tomuschat, ‘International Law: Ensuring the Survival of Mankind on the Eve of a New Century’, 281 Recueil des Cours de l’Académie de Droit International de la Haye (1999) 9-438. Moreover, the idea of international community was a precursor for the defense of some constitutionalist approaches, like those advocated by German authors such as Tomuschat, Frowein, Simma and Fassbender. See Fassbender, The United Nations Charter as the Constitution, supra note 44, at 52-76.

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a manner to include ‘rogue states’ in order to perpetuate their exclusion. Some examples can be provided by positive international law. Article 45 of the Vienna Convention on Diplomatic Relations establishes some obligations for states even when diplomatic relations are broken. A parcel of diplomatic relations is, then, immunised from a conflict (be it political or military) or any kind of turbulence between states. This parcel can be seen as a self-contained regime, as the International Court of Justice argued in relation to the persistence of the obligation of the receiving state to maintain the ‘inviolability of the members of a diplomatic mission and of the premises’.82 The concept of jus cogens, under Article 53 of the Vienna Convention on the Law of Treaties, is founded on a notion of the international community ‘as a whole’. It presupposes the existence of states that do not belong to the international community or that are recalcitrant to the formation of a specific peremptory rule – since international community ‘as a whole’ is not ‘the whole’ international community. But, whatever the case, there is no option for them; they are obliged, without or against their will, to follow another will, that of the ‘international community’. Another example is the famous Article 39 of the United Nations Charter, which does not restrict the powers of the Security Council ‘to maintain or restore international peace and security’ to member states. For some, such article grounds the floor for the Security Council to impose sanctions against states who have decided not to join the Organisation. However, others may say that such power relating to non-members is of no practical relevance, since almost every single state in the world takes part in the United Nations – with arguably only one exception: the Holy See.83 But this is not a matter of practice or theory, but a pattern revealed by current international law, a gift from colonialism that tends to be reproduced in many different aspects of the law.84 Some supporters of the constitutionalist approach are, to a certain extent, conscious of the exclusion that the notion of international community (and also that of constitutionalism) is apt to produce. For Andreas Paulus, ‘[d]espite the inclusiveness of the term, even a universal community knows an outside, an 82. Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), ICJ Reports (1980) 3, para. 86. 83. For this argument, see Fassbender, The United Nations Charter as the Constitution, supra note 44, at 78-82. 84. Fassbender, contesting the position that views constitutionalism as a product of Western minds states that ‘with the achievement of independent statehood in Latin America, Africa and Asia, as well as in the former Soviet Union, the idea of constitution was enthusiastically embraced by virtually all the peoples in question’. Ibid., at 56. However, in his argument, he underestimates the impact of colonialism in forging such ‘enthusiasm’. He also neglects the negative impact of constitutions in those countries and their failure in promoting fair and peaceful societies.

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environment against which it defines and delineates its identity. Hence the debate on “rogue” states and an “axis of evil” composed of states that do not seem to share the alleged consensus’.85 If an outside remains, it is basically contradictory to keep talking about the universality of concepts, such as international community and constitutionalism. The constitutionalist literature seems to share a common assumption that the idea of a constitution can provide an answer to the inclusion/exclusion of different states and peoples in the realm of international law. But here, the domestic analogy is misleading since it is hinged in a mythical narrative of progress about the way domestic constitutional structures have developed, especially during the last three centuries. It is broadly assumed – often implicitly – that states did not face the problem of inclusion/exclusion in their own societies, and if they did, they succeeded in elaborating a constitution representative of the interests of different segments of the society. It is not a coincidence that many domestic legal systems face serious problems in recognising religious, ethnic, or foreign minorities within their boundaries. Not even the application of current human rights rules is able to solve or, at least, lessen the tensions.86 There are possibly many reasons for this, but one has a large piece of responsibility: the inability of current constitutional discourse to deal with the differences.87 Instead, modern constitutionalism can be seen as the ‘empire of uniformity’, to use a term coined by James Tully. From the first writings opposing the so-called ancient constitution to the American and French revolutions, Tully identifies some features that moulded the way constitutionalism is seen by many today: (1) it relies on the concept of popular sovereignty in such a way that cultural unification rather than diversification is fostered; (2) it is defined by its opposition to the pre-modern, archaic ‘ancient constitution’; it is, thus, a product of evolution in which the new is seen as better and must supplant the old; (3) it is uniform, in contrast to a multiform ancient constitution, 85. Andreas Paulus, ‘International Law and International Community’, in David Armstrong (ed), Routledge Handbook of International Law (Routledge: Oxford, 2008) 44-54 at 45. 86. For instance, see the highly instructive article of Jarna Petman, ‘Human Rights, Democracy and the Left’, 2 Unbound (2006) 63-90 (‘unmasking’ the growing difficulty of European countries to cope with religious freedom in their own territories, subverting, thus, the ‘leftist’ credo propagated by many European countries at a time when essential instruments for the protection of modern international human rights law, like the Universal Declaration of Human Rights, were drafted). 87. Of course, it is impossible to generalise, and a vast number of (domestic) constitutionalists have advanced original and creative theories to cope with the difference. See, among many examples, James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge University Press, 1995) and Michel Rosenfeld, The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture, and Community (Routledge: Oxford, 2009). However, my argument is that the way many (international) constitutionalists see (domestic) constitutionalism pay lip service to the complex issue of difference.

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composed of many different laws, institutions and customs; (4) it is identified with the idea of progress: history compels societies to get rid of the multiplicity found in the ancient constitution in favour of the uniformity of the modern constitution; (5) it is identified with certain European institutions, like, for example, those of representative government, the separation of powers, the rule of law, or of individual liberty; (6) it has an identity, which after the French and the American Revolutions became clearer: the nation, as a set of equal citizens within a given community; (7) it presupposes democracy, rather than being a part of the latter.88 Modern (international) constitutionalism seems to have followed a similar pattern.89 Instead of popular sovereignty, common principles, values, and institutions among states – and sometimes among individuals as well – are emphasised. Opposite to the ancient constitution, it contests ‘classic’ international law, in which the will of states plays a crucial role; it is an evolved form that calls for cooperation and fights against the egoism of states.90 It also relies on the uniformity of ‘community interests’ by viewing itself as an alternative to a system based on reciprocity and mutual bargain among actors. Constitutionalism in international law also provides a brand new way to see the international legal system; it is progress compelling international law to take a seat in a better position.91 It is hard to find a supporter of international constitutionalism that does not refer repeatedly to European institutions such as those mentioned by Tully: constitutionalism as the promoter of the rule of law in international law; constitutionalism demanding that the international system contemplate the separation of powers, and so on and so forth. The equivalent of a nation, to international constitutionalists, is some transcendental concept such as mankind or the peoples of the world or the international community; this is how international constitutionalism forges its identity. Finally, constitutionalism is seen as the only way and the first step toward promoting democracy in international law. 88. Tully, Strange Multiplicity, supra note 87, at 58-98. 89. Richard Collins well explains why. Speaking about international constitutionalism, he argues, ‘For the international lawyer it is thus comforting for its familiarity. And it is familiar because it has always been there: in the incomplete nineteenth-century project, in the unspoken benchmark of progress’. Collins, ‘Constitutionalism as Liberal-Juridical’, supra note 7, at 285. 90. This is clear, for example, in Peters’ defense that ‘law should be used as an instrument of evolutionary, not revolutionary, change’. See Peters, ‘Compensatory Constitutionalism’, supra note 56, at 609. 91. See, for instance, Fassbender, who considers the concept of constitutional in the international community as a change of paradigms (in the sense used by Thomas Kuhn) in international law. Fassbender, The United Nations Charter as the Constitution, supra note 44, at 8. Furthermore, it is important to note that this same author, while discussing the main tenants of constitutionalism that support his view of the UN Charter as a constitution, restricts himself admittedly to providing examples of the European and North American doctrines of constitutionalism. Ibid., at 13-26.

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In this context, international constitutionalism does not show plausible alternatives to coping with differences, and one may presuppose that the same mistakes committed by domestic constitutionalism (and its projection in international law through the hands of colonialism) may be repeated. International constitutionalism still needs to develop tools to dialogue with those who are different.92 And consensus often forgets about the different.

6. Constitutionalism as Consensus At a certain stage, the different variations of international constitutionalism agree that there are fundamental principles, values, or even institutions involving the subjects of international law. They play the role of cores in the already existing constitutional structures – for those who believe there is a constitution in international law today – or in the development of future constitutional structures. In this way, we can see a strong emphasis on consensus or common denominators. The reliance on consensus on a global scale is another relevant signal of the influence of the idea of progress in such doctrines. It leads to a reification of the past and a disregard for the differences that contributed to the crafting of current international legal rules. The literature on constitutionalism needs to go deep into history.93 It is generally assumed that there is a continuum between the past and the present, but such assumption tends to emphasise the point of view of those who have built what have come to be the ‘official narratives’ about law in the international arena. Take jus cogens as an example. It is considered by many – not only constitutionalist supporters – as a set of undisputable rules: the synthesis of the evolution of international law. It is fair to say that there is no jus cogens rule in which silences94 92. Anne Peters, one of the most sophisticated and open-minded supporters of the constitutionalisation of international law, tries to refute the accusation that international constitutionalism is anti-pluralist. For her, there are many constitutionalist stories capable of integrating the existent differences in the world. See Anne Peters, ‘Conclusions’ in Jan Klabbers, Anne Peters and Geir Ulfstein, The Constitutionalization of International Law (Oxford University Press, 2009) 346. The fact remains that the attempts to advance a more pluralistic constitutionalism in international law are only marginal – including that one defended by Peters, who is fundamentally influenced by liberal principles. Furthermore, protracting the emergence of a new (and pluralist) constitutionalism, as she seems to suggest, inevitably reminds one of the idea of constitutionalism as a process, something with no discernible ending – in other words, another narrative of progress. 93. If international law is living a historiographical turn, as I proposed in my ‘Martti Koskenniemi and the Historiographical Turn in International Law’, 16 European Journal of International Law (2005) 539-559, it has definitely not affected the literature on constitutionalisation yet. The history of the idea of constitutionalism in international law is basically being made by its critics. One very good example is Collins, ‘Constitutionalism as Liberal-Juridical’, supra note 7. 94. The methodology of searching for silences became notorious in the field of international law

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or the memory of the suffering of uncountable nations and peoples are engraved in its surface. Why does the prohibition on the use of force not encompass the use of economic force? Why is there no right to intervention on the side of Third World countries for the situation of deprivation and hunger caused by the agenda of international financial institutions? Why not judge states for the genocide of millions over centuries in the so-called periphery of the world? Why is there no right to restitution for the descendents of slaves? Why do a growing number of men and women die on a daily basis because the international community do not recognise the right to self-determination of peoples? Why is there no jus emigrationis – as envisaged by one of international law’s ‘fathers’, Francisco de Vitoria – to be evoked by individuals from the Third World countries to wealthier countries? And so on. The impression is that the degree to which we involve ourselves in giving rules a high degree of abstraction in order to allow them a privileged position in the hierarchy of norms of the international legal system is the degree to which we forget about what led us to create that rule. Such silences are undoubtedly related to the vision of constitutionalism as a never- ending process. This is so because ‘[t]he eternity of time exacts forgetfulness as the condition of happiness’.95 And such forgetfulness exponentially distances constitutionalism from any idea of a unified humanity, since so many ‘humanities’ are forgotten and remain silenced on the path towards a constitution. Some may argue that this is rhetoric, political propaganda, and not law. Or that saving the world is definitely outside the hands of lawyers. It may be. But if saving the world is not possible, then we should, at least, stop trying to develop a language (the current language of much of international constitutionalism) that tries to convince us that the past does not matter and that what stayed behind will remain there. A language that does not take into account that every consensus comes with the memory of the suffering of many leads easily to a reification of the past, as if it was a thing to be controlled. On the contrary, spectres of the past visit the living people every single day to leave the message that they are alive as well. I am not saying that international lawyers (and constitutionalist supporters) must simply set aside concepts like jus cogens, but that they must become absolutely conscious that hierarchy and oppression are not-so-distinct poles. What international lawyers will do with that knowledge is up to them; it is, in other words, a matter of their personal responsibility. with the work of Hilary Charlesworth on feminism. She astutely argues that ‘the silences of international law may be as important as its positive rules and rhetorical structures’. See Hilary Charlesworth, ‘Feminist Methods in International Law’, 36 Studies in Transnational Legal Policy (2004) 159-183 at 162. It seems clear that the cognitive emptiness produced by silence in any kind of knowledge deeply affects not only the building of theories, but also the functioning of the practice. 95. J. B. Metz, ‘God: Against the Myth’, supra note 34, at 37.

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The emphasis on consensus found in the constitutionalist literature also does not take into consideration the various levels of difference there are in the world. As a narrative of progress that makes the state of exception a rule to the ‘others’ in society,96 consensus, as defended by many constitutionalists, often closes its eyes to the urgency necessary to change the world. An example that can be provided in this regard is Christian Tomuschat’s ideas about international constitutionalism. In an influential course given more than fifteen years ago, Tomuschat saw the time in which he wrote his lectures as one in which an international community, in other words, a ‘closer union…between members of a society’, could be identified.97 The communitarian model ‘would seem to come closer to reality than any time before in history’ and ‘over centuries up to the present time …, certain common values … [have] gained ground and [have] been progressively strengthened’.98 And despite the drafting of article 53 of the Vienna Convention on the Law of Treaties, the international community is not only composed of states, but also it epitomises the common interest, at least indirectly, of mankind.99 Much happened after Tomuschat pronounced those words – 11/09, the war on terrorism, the world economic crisis – but the gap between nations and peoples does not seem to have been bridged by a closer union, neither in the nineties nor in the new millennium. It is doubtful that this is the world most people, especially in the Third World, want. Statistical data on world poverty is confusing. Although often accused of being one of the greatest promoters of poverty, the World Bank has, paradoxically, provided reliable data to measure current rates. A relatively recent study produced by that institution concluded that the picture of the poverty in the world is much worse than has been assumed. That being said, it also affirms that rates are being gradually reduced, although unevenly distributed among the continents. In 2005, 1.4 billion people lived with less than USD$1.25 a day.100 The most impressive fact proven by this study is not that previous studies were not accurate, nor is it that poverty is being reduced. The main point is that 96. For a good account of the fact that the state of exception is not only a feature of the so-called war on terrorism, but a structural characteristic of today’s international order, see Reyes Mate, ‘La Négation du Sujet dans le Nouveau Ordre Mondial’, 7 Journée de la Philosophie à L’Unesco (2004) 85-109. 97. Christian Tomuschat, ‘Obligations Arising for States Without or Against Their Will’, 241 Recueil des Cours de l’Académie de Droit International de La Haye (1993) 195-374 at 211. 98. Ibid., at 210-211, 236. 99. Ibid., at 227. 100. See Shaohua Chen and Martin Ravallion, ‘The Developing World is Poorer than We Thought, but no Less Successful in the Fights Against Poverty’, Policy Research Working Paper 4703 – The World Bank Development Research Group (2008) (visited 18 January 2011).

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1.4 billion people are starving around the globe at this very moment and that, consequently, an uncountable number have died because of the lack of food! One can read in these data a projection to the future, where poverty will be increasingly reduced in the next decades. But such a reading shows once more an ineluctable trace of progressivism: it portrays to the future the realisation of a goal (the elimination of poverty in the world), leading to a disregard of the demands of past and present generations.101 More, it sounds like Hegel’s dialectics that founded his own idea of progress, wherein evil had the capacity to become good and injustices of the past could be justified by the fact that they helped to pave the way in the march towards the realisation of freedom.102 How can a community exist with 1.4 billion people suffering from starvation every day? We can conjecture that if the ‘international community’ cannot be characterised, just like domestic societies, as composed by under-integrated and over-integrated people, where the exercise of citizenship becomes impossible for the former since there is an absence of de facto equality, under-integrated people cannot be equal because they are subject mainly to duties and can hardly enjoy rights.103 In a scenario of profound inequality, it is possible to question any substantive consensus by using the argument that it was built under a network of legal relations in which over-integrated citizens dictated the rules to under-integrated non-citizens. This is clearly expressed in Koskenniemi’s account of the relations between civilised and non-civilised nations: ‘In order to attain equality, the nonEuropean community must accept Europe as its master – but to accept a master was proof that one was not equal’.104 We are not so far from the nineteenth century as we could expect at first sight. But this is an old-fashioned argument, one may say. Third World countries deployed that strategy of contesting international legal rules just after the decolonisation process started. They soon realised that to change the world, they needed to play under the current rules of the game. Besides that, the harm 101. The fact remains that global governance projects, like constitutionalism, do not have answers to problems like poverty. See David Kennedy, ‘The Mystery of Global Governance’, 34 Ohio Northern University Law Review (2008) 827-860 at 852-853. 102. In Hegel’s words in the famous introduction to his Philosophy of History: ‘Our mode of treating the subject is, in this aspect, a Theodicaea – a justification of the ways of God – which Leibnitz attempted metaphysically, in his method, i.e., in indefinite abstract categories – so that the ill that is found in the World may be comprehended, and the thinking Spirit reconciled with the fact of the existence of evil. Indeed, nowhere is such a harmonizing view more pressingly demanded than in Universal History; and it can be attained only by recognizing the positive existence, in which that negative element is a subordinate, and vanquished nullity’. Hegel, The Philosophy of History, supra note 29, at 29. 103. See Marcelo Neves, ‘Between Under-Integration and Over-Integration: Not Taking Citizenship Seriously’, in Jessé Souza and Valter Sinder (eds), Imagining Brazil (Lexington Books: Lanham, 2005) 61-90. 104. Koskenniemi, The Gentle Civilizer, supra 7, at 136.

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in a nihilist position is considerably greater than any rule in the international legal system today. Every single victory of a Third World country that plays within the rules of the game is highly celebrated as the beginning of a process of change. This happened with the concept of the common heritage of mankind as applied to the deep seabed or the abolishing of AIDS drugs patents, to give just a sample of several examples that could be provided. When a Third World country succeeds before the Dispute Settlement Body (DSB) of the WTO, it is broadly seen as evidence that current international law is finally providing the elements for David to defeat Goliath. The fact remains that, today, the resources of the seabed, after the Agreement on the Part XI of the UNCLOS, will certainly not be used to correct inequalities,105 the legal framework for the protection of drugs patents was not substantially changed,106 and Third World winnings in the DSB of the WTO do not even begin to scratch most of the unequal structures in international trade, such as European agricultural subsidies and American protectionism.107 In sum, the Third World ‘strategy’ to correct the world’s inequalities – if there is one – did not work and it is not working yet. I am sure that many international lawyers, while deploying their vocabulary insisting on consensual principles or values, have the best intentions. But we need to open up the closets and check what ghosts reside within. The logic of consensus is that it tends to underestimate the differences in the world. Some supporters of the notion of international community have counterattacked the critique that community does not take into account the difference seriously by arguing that ‘the true test for the emergence of an international community does not consist in the justificatory value of the community concept, but 105. For a very good account of the ‘transformation’ of the concept of the common heritage of mankind as applied to the deep seabed, see Karin Mickelson ‘Co-opting Common Heritage: Reflections on the Need for South-North Scholarship’, in Obiora Chinedu Okafor and Obijiofor Aginam (eds), Humanizing Our Global Order: Essays in Honour of Ivan Head (University of Toronto Press, 2003) 112-124. 106. Furthermore, it is often neglected how painful and difficult can be for an individual to enforce his or her right to have access to drugs to combat AIDS. For an insightful account of this situation in Chile, see Jorge Contesse and Domingo Lovera Parmo, ‘Access to Medical Treatment for People Living with HIV/AIDS: Success Without Victory in Chile’, 8 Sur – International Journal of Human Rights (2008) 143-161. 107. This is so because the DSB is not enough. ‘Mere constitutional architectonics, as Kelsen was to experience personally, provides a poor guarantee for freedom’. Martti Koskenniemi, ‘Constitutionalism as Mindset: Reflections on Kantian Themes about International Law and Globalization’, 8 Theoretical Inquiries in Law (2007) 9-36 at 31. Furthermore, as stressed by Jeffrey Dunoff, much of what the WTO does is not in the DSB and ‘goes largely unnoticed and unexamined in trade law scholarship’. Jeffrey L. Dunoff, ‘Why Constitutionalism Now? Text, Context and the Historical Contingency of Ideas’, 1 Journal of International Law & International Relations (2005) 191-211 at 206.

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in the inclusiveness of its results’.108 This argument is surprising, since it seems to be exactly what many versions of constitutionalism that assume the existence of an international community do: they do not pay attention to the inclusiveness of its results; the search for consensus overcomes a number of problems that afflict many people today. And this must be challenged for several reasons. First, it seems clear that even liberal theories of distributive justice have paid attention to difference as a possible element affecting the distribution of wealth among persons, as in the case of men and women.109 Second, an international community, as it is now, is far from doing justice to at least 1.4 billion people; hence the results shown by such a community are extremely precarious. Third, the so-called international community must be scrutinised for what it did or did not do; and also in this field – in the past – its (good) results were felt only by a small amount of the world population. Under the label of common denominators, strong emphasis on consensus almost invariably has led to the forgetting and to focusing on an uncertain future that closes its eyes to the problems faced by present and past generations. And more, consensus can be dissolved at any time, because common values or common principles are not absolute categories. Consensus is often viewed as a starting point to a future, when what was needed was a final point to the suffering of people.110 And the voices of suffering do not stop to echo. They echo precisely in the gaps between order and justice.

108. Paulus, ‘International Law’, supra note 85, at 50. 109. For a good summary, see Julian Lamont and Christi Favor, ‘Distributive Justice’, in Stanford Encyclopedia of Philosophy (2009) (visited 18 January 2011). 110. The European support for constitutionalist projects could also be seen as a hegemonic project in the discipline of international law. This is suggested by Martti Koskenniemi, ‘International Law in Europe: Between Tradition and Renewal’, 16 European Journal of International Law (2005) 113-124. And Anghie, writing about the ‘imperialism of international economic regimes’ states clearly that: ‘This is “everyday” imperialism, the quotidian and mundane imperialism, that is accepted as somehow normal and that is furthered and prompted not only by the USA, but by European states that otherwise have opposed US policy in Iraq’. Antony Anghie, ‘The Evolution of International Law: Colonial and Postcolonial Realities’, 27 Third World Quarterly (2006) 739-753 at 750-751. Whatever is the case, the point is that any current hegemony or Empire in the world (be it American or European) is not really concerned with correcting inequalities. In another article, Koskenniemi brilliantly pointed out that the greatest problem with American hegemony is that it aims at the wrong targets. Instead of being concerned about the use of force and national security, it should be worried about economic problems, like poverty around the globe. See Martti Koskenniemi, ‘International Law and Hegemony: A Reconfiguration’, 17 Cambridge Review of International Affairs (2004) 197-218 at 213.

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7. Constitutionalism Between Order and Justice Many constitutionalist approaches seem to depart from the fact that the desirable constitutional order must impose, at the same time, order and justice. Human rights or environmental concerns play just as important a role as the prohibition against the use of force or non-intervention. Institutions are important not only to avoid a state of anarchy among states, but also to advance common principles in an interdependent world.111 It is not a coincidence that the United Nations has an important role in many constitutionalist approaches, even for those that do not see in the Charter the constitution of the world: it epitomises the attempt to cope, at the same time, with order and justice. While the Security Council is often seen as the promoter of order, the General Assembly is the guardian of justice. And it is interesting to note that the ‘balance’ between order and justice, through a separation of functions, only came years after the San Francisco Conference. The drafters of the Charter were more interested in promoting order than justice; the practice of the organisation, however, led it to focus on issues of justice, like decolonisation, human rights, or the environment.112 But there is an underlying tension between order and justice that neither the United Nations nor constitutionalist projects have been able to transcend. The liberal position that justice can be achieved only if there is order and that order is better realised only when the call for justice is being answered ‘seems to be both too demanding and too vague’. Such reconciliation is difficult ‘because of a conflict in priorities’.113 Although it seems clear that the balance, in the history of international law, has pended much more towards the side of order rather than justice, it is fair to say that, during some moments, the United Nations and some constitutionalist projects have put a great emphasis on justice-related aspects. For instance, despite being criticised many times by their results, the World Conferences on the social issues of the nineties at least had the merit of putting on the table a number of topics that can be tackled only outside the boundaries of the nation-state.114 The same happens with some constitutionalist projects: by 111. For example, Simma’s community interests encompass issues from ‘international peace and security’ to ‘protection of the environment’ and ‘international concern with human rights’. It also puts a great emphasis on the United Nations to cope with such issues. See Simma, ‘From Bilateralism’ supra note 60, at 235-243, 258-262. A very similar approach can be found, among many, in De Wet, ‘The International Constitutional’, supra note 43. 112. For this interpretation, see Martti Koskenniemi, ‘The Police in the Temple: Order, Justice and the UN: A Dialectical View’, 6 European Journal of International Law (1995) 325-348 at 337. 113. Rosemary Foot, ‘Introduction’, in Rosemary Foot, John Gaddis and Andrew Hurrell (eds), Order and Justice in International Relations (Oxford University Press, 2003) 1-23 at 16. 114. For a lucid account of the results of the conferences, see J. A. Lindgren Alves, Relações Internacionais e Temas Sociais: A Década das Conferências (IBRI: Brasília, 2001). A summary of the positions held in the book can be found in English in J. A. Lindgren Alves, ‘The UN

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highlighting issues of global justice, they make a plea for a minimal equilibrium between order and justice. The problem with constitutionalism is that it often assumes that the tension between order and justice can be solved by a set of substantial principles, like jus cogens, the Charter of the United Nations, common values, or a pre-defined institutional architecture. As a narrative of progress, due to the impossibility of knowing what the future will be, uncountable efforts are made to plan it in every way possible115 by fixing norms and institutions. However, the tension between order and justice is much more latent than ever and the prospects for solving it are far distant. Whereas the plights for order increase exponentially (e.g., the combat on drugs, on terrorism, on transnational organised crimes), the same occurs with plights of justice (e.g., reduction of poverty rates, global warming, and the inclusion of marginalised segments of the society). This happens because states and individuals definitely share a great number of institutions and practices on an unseen scale in history; but, at the same time, ‘the deformed political order’ that there is today has become more visible, especially due to the ‘extreme disparities of power that exist’. In this complicated scenario, a ‘combination of density and deformity shapes how we should think about the relationship between order and justice’.116 Although we can disagree about whether or not the problem of substantive principles in international law is related to their grounding on a universal rationality that is a product of Western civilisation, we must agree that there are many who believe this is exactly the problem. What the concepts of order or justice mean become a matter of taking different positions. Furthermore, in societies ‘fractured’ by diversity of thoughts and opinions, groups will increasingly question the consent made by its representatives at the international level in treaties or other binding international legal rules under the argument that their interests are not being well represented or not represented at all.117 The feature of progress can be clearly seen in those constitutionalist approaches because they project in international law a static relationship between order and justice, where those concepts are defined following the paths of an enlightened reason that sees order and justice only under paradigms such as stability, coherence, security, individualism and standardisation. However, this is a telos that from now on, as mentioned before, will be excessively difficult to achieve. Some analysts have correctly pointed out that ‘any excess in characterizing rules as peremptory Social Agenda Against “Postmodern” Unreason’ in Might and Right in International Relations, 28 Thesaurum Acroasiarum (1999) 51-108. 115. Taguieff, Le Sens, supra note 18, at 127. 116. Andrew Hurrell, ‘Order and Justice in International Relations: What is at Stake?’ in Rosemary Foot, John Gaddis and Andrew Hurrell (eds), Order and Justice in International Relations (Oxford University Press, 2003) 24-48 at 36. 117. Ibid., at 43.

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ones’ without taking into account ‘whether or not such characterization is shared by the international community, risks undermining the credibility of jus cogens as a legal category’.118 But this is true not only because of the recent assault of the Bush administration on well established jus cogens rules, but because in a world with a plurality of voices, almost nothing is fixed, not even what ‘is shared by the world community’. In order to cope with order and justice, constitutionalism must focus not mainly on hierarchy of rules, values or principles, but on social hierarchies that exist or are confirmed by the international legal system. The argument that international law guarantees equality before the law (often used by leaders of Third World countries, it must be said) needs to be strongly challenged by the fact that there is a political environment that is constantly conveying the message that states with a different level of power in the international arena are definitely not equal in producing and applying international legal rules. Gerry Simpson has insightfully demonstrated that the international legal order, at least since the Congress of Vienna, has accommodated the legalisation of many hierarchies among states. Through many ideas, such as ‘special rights and duties’, the expression ‘Great Powers’ has become a legal category. The fact is that ‘the idea of the Great Powers is, in many important respects, a juridical idea but that it has been presented as a material fact’.119 Regarding the ‘international community’ as one composed by individuals makes the urgency in looking for social hierarchies even greater, since poverty, lack of recognition of rights, and any other forms of deprivation can definitely affect the way its members are being treated as ‘equals’. But there is a long way to go to make an investigation of legal inequality a core topic in international law like jus cogens or obligations erga omnes. Take the Security Council as an example. International lawyers devote much of their time to discussing its reform in order to allow a better degree of representativeness to it. If we intend to combat social hierarchies, the discussion should be how to suppress the Security Council. Nonetheless, the argument that eliminating the presence of the Council, under current circumstances, is not a realistic aim, always comes to the surface. And things remain the same. If a robust number of international legal scholars cannot imagine alternatives to this scenario of institutionalised social hierarchy, that is because the world, as it is, has reached the level of perfection; the telos professed by many adepts of progress has finally been achieved. There is an important message about order and justice that domestic constitutionalism can convey to international constitutionalism, especially if the French 118. Andrea Bianchi, ‘Human Rights and the Magic of Jus Cogens’, 19 European Journal of International Law (2008) 491-508 at 507. 119. Gerry Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (Cambridge University Press, 2004) at 69.

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Revolution is taken into regard. ‘[T]he ancient régime had been stable and acted predictably for a long, indeed too long a time. It may have acted arbitrarily too, but that was not the main problem. The problem was its consistent reliance on social hierarchy, and the suppression of freedom from the bulk of the population’.120 In a system like international law, based on enormous social hierarchies, the difficult relationship between order and justice can lead to unpredictable paradoxes if the inner structures of the discipline cannot be deeply questioned and changed.

8. Conclusion Supporters of international constitutionalism constantly refer to article 16121 of the Declaration of the Rights of Man and of the Citizen, which states: ‘A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all’. Nevertheless, there is an article international lawyers should focus on much more carefully: Article 1, which prescribes: ‘Men are born and remain free and equal in rights’.122 Equality is a presupposition of any constitutionalist schema that aims to endure. But it seems that much of international constitutionalism has not been paying due attention to what makes, sustains, or avoids the pursuit for equality in the international realm. This article has tried to prove that many international constitutionalist approaches, as they can be seen today, are based on a grand narrative of progress. Blindly following a narrative of progress can be extremely dangerous for the same ‘humanity’ many of those approaches try to protect. It can lead to a disregard with issues related to equality and, more generally speaking, with those of social distribution, essential for, to quote Chimni again, the ‘Global Poor’. However, one may ask: so what? Unveiling such progressive presuppositions is certainly important, but is it possible to escape forever from them? More, even critics of progress assume, to a certain extent, a course of history, a plan for a better future where events and ideas will not be predetermined and in which the coming generations will have their destiny in their own hands, finally free from progressive visions. In the end, is progress not inevitable at all? The point seems to be that progress is inscribed in our own conceptions of time; in the way political projects and even history are conceived. It is no coincidence that the concept of history was coined almost in the same period – the second half of the eighteenth century – of the secularisation (or apparent secularisation) of the concept of progress. Before that, history was used only as connected to an 120. Koskenniemi, ‘Constitutionalism as Mindset’, supra note 107, at 26. 121. See, e.g., Peters, ‘Compensatory Constitutionalism’, supra note 56, at 585 and Paulus, ‘The International Legal System’, supra note 70, at 2149-2163. 122. Declaration of the Rights of Man and of the Citizen (visited 10 January 2011).

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object or a subject (the history of someone or the history of a polity, for instance). History, then, finally, was not to be confused with the concept of nature.123 History could be controlled by human beings, and progress was an efficient tool for that aim. That is why Koselleck sustains that progress, regardless the way it is seen, always comes with a prognostic potentiality that no politics is in a position to waive.124 Or, as James Connelly suggests: ‘For history to be intelligible there must be something to grasp, and this means that historians presuppose its intelligibility. This cannot be done without assuming some directionality, some historical foreclosure, some sense of the process tending in one direction rather than another’.125 If the thesis about the ‘inevitability of progress’ is right, this has to do, from my perspective, with an amazingly complex and much broader issue, which is the conception of the linearity of time.126 In Antiquity, no notion of progress could emerge because time was often thought of as being circular rather than linear. Past, present, and future could not, obviously, be seen as distinct entities from this perspective. The idea of prognosis could arise only later as an attempt to predict what rests at some point in an indefinite line (time). The critique towards the concept of progress is, therefore, essential, but it does not suffice. If a more in-depth critique is wanted, further research might focus on the way moderns conceive time differently from ancients. Additional research is also needed to reveal the political theologies127 behind the conception of time as linear and, consequently, of progress. The transplantation of the concept of progress from the realm of space to that of time has significantly affected the latter, and international law has certainly not been unharmed. The critique of the concept of progress as embraced by international constitutionalism ought to be exposed, but such criticism must find a way to avoid the ‘prison-house of progress’ by presupposing time as a linear continuum. This article has attempted only to expose the concept of progress that resides within the boundaries of international constitutionalism. The next steps, we hope, will follow the second, and much more difficult, task.

123. Koselleck, Progresso, supra note 22, at 19. 124. Meier and Koselleck, ‘The Temporalisation’, supra note 14, at 110. 125. James Connelly, ‘A Time for Progress?’, 43 History and Theory (2004) 410-422 at 415. 126. Agamben is a good example of the few contemporary thinkers who have tried to advance a critique against the idea of the linearity of time. See, especially, Giorgio Agamben, ‘Time and History: Critique of the Instant and the Continuum’, in Infancy and History: Essays on the Destruction of Experience (Verso: London, 1993), 89-106. 127. There is an emerging literature on political theology and international law. For a broad study on this topic, see Pamela Slotte, ‘Political Theology Within International Law and Protestant Theology: Some Comparative Remarks’, 64 Studia Theologica – Nordic Journal of Theology (2010) 22-58.

Human Rights, Fundamental Rights and the Common Constitutional Traditions in the Protection of Religious Pluralism and Diversity in Europe – A Study in the Democratic Paradox Dorota A. Gozdecka* AbstrAct: The Treaty of Lisbon has strengthened the formal coherence of European human rights protection by, among others, delineating clearer links between the systems of human rights protection provided by the European Convention on Human Rights and the fundamental rights developed under European Union law. In respect to freedom of religion and religious pluralism in a multicultural society it has strengthened commitment to fostering diversity and pluralism. This paper analyses the reforms introduced by the Treaty through the lens of multi-religious coexistence and diversity. It approaches issues of applicability and enforceability of rights such as freedom of religion in the current legal situation. It takes into account both the perspectives of the legal orders as well as the rights bearers who may appeal for the protection of their rights and discusses general theoretical problems concerning understanding of rights and their significance in the European legal sphere. Keywords: freedon of religion, religious pluralism, EU, fundamental rights, constitutional pluralism

1. Introduction The process of European integration has gradually been transforming Europe into a supranational entity ruled by a common set of values stemming from the ‘constitutional traditions of the Member States’.1 The Treaty of Lisbon has strengthened the formal coherence of European human rights protection by, for * 1.

Post Doctoral Research Fellow,Centre of Excellence in Foundations of European Law and Polity Research, University of Helsinki. Article 2, Article 6.3 Treaty on European Union (TEU) as modify by the Treaty of Lisbon, 13 December 2007, in force on 1 December 2009; Preamble to the Charter of Fundamental Rights of the European Union (Charter), 7 December 2000, in force 1 December 2009.

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instance, delineating clearer links between the systems of human rights protection provided by the European Convention on Human Rights and the fundamental rights developed under European Union law. Furthermore, it expanded the catalogue of the common principles included in Article 2. With respect to freedom of religion and religious pluralism in a multicultural society,2 the Charter of Fundamental Rights and the Employment Equality Directive set clear legal obligations based on the principle of non-discrimination and freedom of religion.3 These legal transformations raise the question of their practical significance. This paper discusses the changes in the construction of the system of rights protection in the European Union de lege lata and evaluates their significance for the development of European model of multi-religious coexistence. Firstly it addresses institutional and structural changes in the European systems of rights protection. It approaches issues of applicability and enforceability of rights such as freedom of religion in the current legal situation. In order to illustrate the difficulties and challenges brought by recent legal developments it takes into account the perspectives of both the legal orders as well as of the rights bearers who may appeal for the protection of their rights. Secondly it focuses on the question how the evolution of common principles in the area of religious pluralism has been developing thus far and how the institutional and structural aspects of rights protection analysed before have impacted those developments. Finally it discusses general theoretical problems concerning the understanding of rights and their significance in the European legal sphere. In this section legal dilemmas observed in the areas pertaining to freedom of religion and diversity are used as a background in order to bring to the fore the main theoretical questions concerning the very understanding of rights in democratic societies.

2. Treaty of Lisbon and the Three Pillars of Human Rights Protection The relationship between the systems of human rights protection in Community law and the European Convention of Human Rights (ECHR) has for long time been unclear, despite multiple references to human rights standards in the texts of 2.

3.

The principles and rights analysed here are applicable for a wider notion of multiculturalism, understood as culturally, linguistically and religiously diverse social coexistence. The primary focus of this article, however, is on the freedom of religion and religious pluralism in such a multicultural society. This focus is dictated by the frequent presence of religious aspects in multiple discourses on cultural coexistence in Europe such as the debates concerning the so-called burqua bans and presence of religious symbols in public sphere (see references in sections 6 and 7 below). See: Sonia Morano-Foadi, ‘EU Citizenship and Religious Liberty in an Enlarged Europe’, 16 European Law Journal, (2010) 417–438.

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the Treaties4 and the case law of the ECJ.5 The ambiguous nature of the Charter of Fundamental Rights (the Charter) before the entry into force of the Lisbon Treaty inspired a rich scientific debate on its meaning and purpose from both legal and political perspectives.6 The Treaty of Lisbon introduced significant changes and clarified previous uncertainties by strengthening and integrating various levels of European human rights protection. The crucial modifications to the system are included in Article 6 of the Treaty on European Union (TEU). This Article introduced what Pernice describes as a system of ‘three pillared’ human rights protection7 in which protection is not based solely on separate legal standards provided in the different legal orders of the European Union (EU), the Council of Europe (CoE) or the constitutional systems of the Member States. Article 6 bases this protection on all of these systems, making them mutually dependant and complementary. The first pillar includes the Union’s internal system of protection in the form of the European Charter of Fundamental Rights. The Charter, even though it was not incorporated into the text of the Treaty itself, received under Article 6(2) TEU legal status equivalent to that of the Treaties. Prima facie the legal character of the Charter is strengthened and it could now be applied directly except in the cases of United Kingdom and Poland.8 Nevertheless, the legal status of the Charter remains different from that of the Treaties. As observed by Gil-Bazo and Groussot and Pech, the new status will not automatically transform the provisions of the Charter into directly enforceable individual rights. First of all, as Gil-Bazo underlines the Charter’s application is limited to the areas of State activities which fall under the Union’s law.9 Therefore

4. 5. 6.

7. 8.

9.

E.g. Former Article 6 Treaty of European Union (TEU) of 7 February 1992, OJ 1992 C191. E.g., Case 29/69, Stauder v. City of Ulm [1969] ECR 419; Case 36/75, Rutili v. Minister of the Interior [1975] ECR 1219. See, among others: Christopher McCrudden, ‘The Future of the EU Charter of Fundamental Rights’, ; Agustin José Menéndez, ‘Chartering Europe: Legal Status and Policy Implications of the Charter of Fundamental Rights of the European Union’, 40 JCMS: Journal of Common Market Studies (2002) 471–490; Christoph Engel, ‘The European Charter of Fundamental Rights A Changed Political Opportunity Structure and its Normative Consequences’, 7 European Law Journal (2001) 151–170. Ingolf Pernice, ‘The Treaty of Lisbon and Fundamental Rights’, in Stefan Griller and Jacques Ziller (eds.), The Lisbon Treaty: EU Constitutionalism without a Constitutional Treaty? (Springer: Wien, New York, 2008). See further comments on the British-Polish opt-out protocol in e.g. Pernice, ‘The Treaty of Lisbon and Fundamental Rights’, supra note 7, or Catherine Barnard, ‘The ‘Opt-Out’ for the UK and Poland from the Charter of Fundamental Rights: Triumph of Rhetoric over Reality?’, in Stefan Griller and Jacques Ziller (eds.), The Lisbon Treaty. EU Constitutionalism without a Constitutional Treaty? (Springer: Wien, New York, 2008). Maria-Teresa Gil-Bazo, ‘The Charter of Fundamental Rights of the European Union and the Right to Be Granted Asylum in the Union’s Law’, 27 Refugee Survey Quarterly (2008) 33-52.

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it imposes obligations in the area of the competences transferred to the Union.10 Other areas continue to be governed by domestic law and are subject to other international commitments of the Member States.11 In addition, as Groussot and Pech observe, the new ‘labelling’ does not extend the catalogue of options available for individuals to challenge the legality of EU or national measures.12 The second pillar of human rights protection requires the accession of the Union to the ECHR. The relation between the EU Treaties and the ECHR had been until the Treaty of Lisbon of ambiguous nature, and this ambiguity has been solved primarily through the case law of both the ECJ and the ECtHR.13 Even before the Treaty of Lisbon the Communities and later the Union were committed to the protection of human rights and fundamental freedoms and the ECJ in its judgments eventually referred to the case law of ECtHR as a yardstick in measuring the human rights standards.14 At the same time, all the Member States of the Union were also Member States of the CoE and parties to the European Convention of Human Rights and thus bound by obligations stemming from both of these legal orders. According to the ruling in the case of Matthews v. UK decided before the ECtHR, the implementation of EU law did not absolve the Member States from responsibility for human rights violations.15 The relationship between the orders before the change of the Treaties was, however, complex. Procedural aspects and the necessity of giving up jurisdiction on human rights matters to the ECtHR were often cited as the primary problems of possible accession.16 In the Opinion 2/94 issued on 28 March 1996 the ECJ observed two main problems regarding the accession of the communities to the Convention: first of all, the competence of the Community to conclude such an agreement and second of all compatibility of the jurisdiction provisions with the provisions of the Treaties. In respect to the question of jurisdiction the ECJ stated: In order fully to answer the question whether accession by the Community to the Convention would be compatible with the rules of the Treaty ... the Court must have sufficient information regarding the arrangements by which the Community envisages submitting to the present and future judicial control machinery established by the Convention. 10. Ibid. 11. Ibid. 12. Xavier Groussot and Laurent Pech, ‘Fundamental Rights Protection in The European Union post Lisbon Treaty’, 173 European Issue (2010), Foundation Robert Schuman. 13. For detailed account of case-law, see e.g. Paul Craig and Grainne de Burca, EU Law, Text, Cases and Materials (Oxford University Press: Oxford, 2008) at 418-424. 14. Since Case 36/75, Rutili v. Minister of the Interior, [1975] ECR 1219. 15. Matthews v. UK, Application no. 24833/94, European Court of Human Rights, Decision (18 February 1999), at para. 18. 16. See e.g., Jean M. Sera, ‘The Case for Accession by the European Union to the European Convention for the Protection of Human Rights’, 14 Boston University International Law Journal (1996) 151-186.

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As it is, the Court has been given no detailed information as to the solutions that are envisaged to give effect in practice to such submission of the Community to the jurisdiction of an international court.

For these reasons the Court did not find itself in position to give any opinion on the compatibility of such accession. The Treaty of Lisbon, despite the possibility of identical procedural problems, introduced Article 6(2), which provides that the EU shall accede to the ECHR. The obligations stemming from the human rights norms included in the ECHR will now not only be the sole obligation of the Member States, but also of the Union as a legal person. Thus when the accession takes place the actions of the Union can be subject to legal scrutiny of the ECtHR. Groussot and Pech note that the accession agreement must respect the principle of autonomy of the EU legal order and secure the interpretative autonomy of the ECJ. Furthermore, the necessary adaptation of individual and inter-States disputes before the ECtHR must take place.17 As van der Berghe observes both Courts have so far developed ‘conflict-avoidance strategies’ and teleological interpretations of human rights obligations according to the Convention’s and Community’s objectives. The accession may not per se change these strategies.18 The last pillar is based on the constitutional systems of the Member States. The relationship between the first two and the third pillar works vertically. Article 6(3) provides that both the rights guaranteed in ECHR as well as those stemming from the constitutional traditions of the Member States constitute general principles of the Union’s law.19 This bottom-up relationship between constitutional principles stemming from different legal orders secures formal coherence of the system. It ensures that the constitutional principles on which the legal system of the Union is based are not detached from the constitutional principles of its Member States. In addition all the three pillars of human rights protection are raised to the level of general principles of the Union’s law. As such, they fall under the protection of Article 4(3) TEU, which obliges the Member States to facilitate the Union’s tasks and refrain from taking any measures which could jeopardise the attainment of the Union’s objectives. This formal coherence, does not however, prevent tensions stemming from interpretation. As Maduro observes, agreement is frequently easier at the systemic level and it does not prevent institutional competition between courts that is frequently generated by pluralism of legal sources.20 17. Groussot and Pech, ‘Fundamental Rights Protection’, supra note 12. 18. Frederic van der Berghe, ‘The EU and Issues of Human Rights Protection: Same Solutions to More Acute Problems?’, 16 European Law Journal (2010) 112-157. 19. These principles were affirmed previously by the ECJ in its rulings, e.g. Case 11/70, Internationale Handelsgesellschaft mbH v Einfuhr [1970] ECR 1125. 20. Miguel Poiares Maduro, ‘Courts and Pluralism: Essay on Theory of Judicial Adjudication in the Context of Legal and Constitutional Pluralism’, in Jeffrey L. Dunoff and Joel P. Trachtman (eds.),

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3. The General Principles of the Union Relevant for the Protection of Human Rights and Freedom of Religion The structural changes to the system of rights protection in the Union are additionally strengthened by the extension of the general principles and objectives of the Union. These are included in Article 2 TEU, which states that: The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between men and women prevail.

The principle of respect for human rights as well as pluralism, non-discrimination, tolerance and equality between men and women, shape not only foundations on which the Union is based but also fundamental principles of the European approach towards issues of cultural diversity. These principles are further strengthened by Article 3 TEU which establishes an obligation of combating social exclusion and discrimination. Combined, these provisions create a legal obligation to foster pluralism and diversity. The compliance of the Member States with these general principles is secured by Article 7 TEU which establishes, similarly to the Treaty of Amsterdam,21 a special procedure in the case of breaches of the values embraced under Article 2: On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2.

In the case of a serious and persistent breach of these principles (or as referred to in Article 7 ‘values’), the European Commission acting on the proposal by one third of the Member States can begin a procedure which may eventually lead to the suspension of certain privileges guaranteed by the Treaties. It is not sufficient to meet the general requirements stemming from the common principles upon entering the Union, but it is also necessary to abide by them throughout the membership of the Union. In the current legal situation, the principles mentioned in Article 2, in the case of a persistent breach of human rights standards, ought to be interpreted in connection with Article 6, establishing the human rights standards in the area. In addition to the principles stemming from the TEU, the Treaty on the Functioning of the European Union (TFEU) also includes principles related to Ruling the World? Constitutionalism, International Law, and Global Governance (Cambridge University Press: Cambridge, 2009) 356-380. 21. Article 7, Treaty of Amsterdam of 2 October 1997, OJ 1997 no. C/80.

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the area of human rights. Specifically, Article 10 TFEU once more underlines that the Union shall combat discrimination based on sex, racial or ethnic origin, religion or belief, disability or sexual orientation. Moreover, the reformed system guarantees legal value equivalent to that of the treaties to Article 10 of the Charter, which is directly related to issues of religious pluralism and diversity. Article 10 secures freedom of religion and contentious objection in accordance with national law. Together with provisions of Employment Equality Directive 2000/78/EC forbidding, inter alia, discrimination on the ground of religion in employment and other non-discrimination provisions of the Treaties, these norms create converging legal standards concerning multireligious coexistence.22

4. The Union and its Responsibility for the Protection of Human Rights: Kadi and Bosphorus Hava Judgments As illustrated above, the changes not only aim at strengthening the role of rights, but also acknowledging the importance of diversity and pluralism in all their aspects, including the protection of the rights of persons belonging to minorities. However, as with any other legal framework, guaranteed rights depend on their enforceability. This section analyses procedural aspects of the recent changes and their potential for pluralisation rather than constitutionalisation of rights protection in the European legal orders. In the case of European legal orders the question of jurisdiction remains crucial for the procedural aspects especially in the event of the accession of the EU to the ECHR. As the above-mentioned opinion of the ECJ on the question of accession to the ECHR illustrates, the questions of the jurisdiction and the division of competence between ECJ and ECtHR in the area of human rights generates multiple legal difficulties. The relationship between human rights obligations and the obligations of the European Community was examined both by the ECJ and the ECHR before the reforms of the Lisbon Treaty entered to force. The questions of revision of the Community’s obligations in the light of human rights standards were under judicial scrutiny in the cases of Kadi and Al Barakaat23 and Bosphorus Hava.24 These judgments were decided before the entry into force of the Lisbon Treaty and some commentators have ascertained that principles established in them 22. Morano-Foadi, ‘EU Citizenship and Religious Liberty in an Enlarged Europe’, supra note 3. 23. Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v.Council of the European Union and Commission of the European Communities, [2005] ECR 11-3533. 24. Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v. Ireland, Application no. 45036/98, European Court of Human Rights, Grand Chamber, Decision (30 June 2005).

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have created de facto accession of the Community to the ECHR.25 Both of these judgments, however, bear serious implications for the understanding of rights in Europe and do not create a simple coherent hierarchical model of protection. In Kadi, the Grand Chamber of the ECJ set aside previous judgments made by the Court of First Instance.26 The Court found it lawful to examine international obligations of the Community with respect to their compatibility with human rights standards to which the Community adheres. Moreover, the Court underlined the importance of the constitutional nature of the EC Treaty and principles established in the Treaties and the Charter of Fundamental Rights. The Court emphasized the importance of former Article 6 (now Article 2) for the protection of fundamental rights and expanded the competence of the Court to review the compliance with fundamental rights. As Besson observed, however, the approach to rights remained a Europe-centred approach based on the idea of compliance with EU constitutional principles and EU fundamental rights, rather than an approach based on international human rights obligations.27 Isiksel characterised this stance of the Court as an act of ‘civil disobedience’ to international law, even though in her view justified.28 Others, like de Burca remained sceptical and warned of the danger of parochialisation of the system of fundamental rights protection.29 The Treaty of Lisbon, which strengthened the obligations of the Union in the area of fundamental rights, gives an even stronger ground for future examination of the acts of the Union through the perspective of human rights obligations. Both the system of rights included in Article 6 with the required accession to the ECHR and the obligations stemming from Article 3(5) which require the Union to contribute to protection of human rights and to respect the principles of the United Nations Charter will have a key role in the development of the relationship between the international law and the European law orders. The procedural problems of jurisdiction between the ECJ and ECtHR mentioned above and further judgments concerning the hierarchical relationship between the orders will be of key importance. They may further deepen the fragmentation of the rights standards based on the pluralism of rights approach or create coherence based on the equivalence of the rights approach. If the Court continues to develop its current approach on the basis of Kadi, the Community order will continue to be governed by the Community order itself. In case of the international law 25. See e.g.: Craig and de Burca, EU Law, supra note 13, at 424. 26. Kadi v.Counci, supra note 23, at paras 327 and 330. 27. Samantha Besson, ‘European Legal Pluralism after Kadi’, 5 European Constitutional Law Review (2009) 237-264. 28. Türküler Isiksel, ‘Fundamental rights in the EU after Kadi and Al Barakaat’, 16 European Law Journal (2010) 551-577. 29. Grainne de Búrca, ‘The European Court of Justice and the International Legal Order after Kadi’, 51(1) Harvard International Law Journal (2009), 1-49,

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obligations permeating to the EU order, it will still be the EU constitutional law norms and EU internal fundamental rights understanding that will be seen as taking priority over international law.30 In this respect the accession to ECHR may require greater conformity of these standards and their equivalence with the understanding developed by the ECtHR. Paradoxically though, the equivalence test developed in Bosphorus may lead to a diverse rather than uniform understanding of rights obligations. The equivalence standard was developed by the ECtHR in the case of Bosphorus Hava v. Ireland31 where the Court dealt with the questions of jurisdiction over provisions of the Community law. The key issue in the case was whether Ireland infringed the provisions of the ECHR by application of the Community law. The Court analysed in detail all the relevant provisions of Community law and possible means of legal redress in cases of human rights violations. Through this analysis, it came to the conclusion that the compliance with legal obligations of a Member State (of the CoE) stemming from membership in an international organization (the European Community) constitutes a legitimate general interest,32 which ought to be taken into consideration when the Convention provisions allow for a limitation of rights justified by special interests. At the same time, however, the Court stated that any presumption of a legitimate interest may be rebutted if it is considered that protection stemming from the Convention was manifestly deficient. ‘In such a case, the interest of international cooperation would have to be weighed by the Convention’s role as a ‘constitutional instrument of European public order’ in the field of human rights’ stated the Court.33 Upon further analysis, however, it found the protection of rights provided by the Community law ‘equivalent’ to that of the Convention system.34 Even though Bosphorus Hava did not directly establish responsibility of the Community for compliance with the Convention, it established an obligation for a Member State to implement the Community law in accordance with the ECHR. It is however, the ‘equivalence’ standard developed by the Court that may remain problematic, even in the event of the accession of the EU to the ECHR. Douglas-Scott emphasises that the equivalence test was very general and focused on the general evolution of ECJ fundamental rights rather than actual circumstances of the case.35 The presumption of equivalence was criticised for the creation of a privileged position of the EU law before the ECtHR without an actual review of 30. Advocate General in Kadi, as quoted in Besson, ‘European Legal Pluralism after Kadi’, supra note 27, at 252. 31. Bosphorus Hava v. Ireland, supra note 24. 32. Ibid., at para150. 33. Ibid., at para 156. 34. Ibid., at para 165. 35. Sionaidh Douglas-Scott, ‘Bosphorus Hava Yollari Turzim Ve Ticaret Anonim Sirketi v. Ireland’, 43(1) Common Market Law Review (2006) 243-254.

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the standard in question.36 The changes in the construction of the rights system introduced by the Treaty of Lisbon may not have any practical significance, if the test of ‘equivalence’ is maintained in the form of an automatic presumption. As observed by van den Berghe, the two standards of interpretation, one applied to the Member States and one to the EU, may continue to diversify the European understanding of rights in the name of the autonomy of various legal orders.37

5. What do the Reforms mean for Developments in the Area of Religious Pluralism and Diversity? ECtHR and the CoE as the Ultimate Interpreters of the Principles and Creators of the Standards In addition to the problems of jurisdiction or avoidance of conflict between the two orders, development of principles related to diversity and religious pluralism is largely dependent on the accessibility of an individual to the system of human rights protection and the possibility of challenging violations. This section will focus on the problems of accountability for possible violations and the protection of rights bearers in Europe in the current situation where multiple legal orders intersect and influence each other. This analysis aims at positioning the rights bearers in between European, international and constitutional law in situations when violations of freedom of religion and non-discrimination are claimed. As mentioned above, the enforceability of rights will depend on the possibility of challenging violations. In this respect it is crucial to remember that the ECHR, unlike the EU system, allows the individual to directly submit the case to the Court and challenge the application of domestic measures and their compatibility with human rights standards. In the EU system, individuals enjoy a limited locus standi. Possibilities of direct action brought by an individual are limited to bringing an action for annulment of an act of an EU institution in accordance with Article 263 TEU or failure to act by an EU institution in accordance with Article 265 TEU. While the Treaty of Lisbon has removed obstacles of ‘direct concern’ previously required for bringing an action for annulment,38 it did not reform the principles of accessibility for individuals. Action for annulment may result in the invalidity of secondary EU legislation, but the Court’s jurisdiction does not extend to the examination of the legality of primary law itself. Thanks to the strengthened position of the 36. Geoff Sumner, ‘We’ll Sometimes Have Strasbourg: Privileged Status of Community Law before the European Court of Human Rights’, 16 Irish Student Law Review (2008), 127-170. 37. van der Berghe, ‘The EU and Issues of Human Rights Protection’, supra note 18. 38. Stephan Balthasar, ‘Locus standi rules for challenges to regulatory acts by private applicants: the new art. 263(4) TFEU’, 35 European Law Review (2010) 542-550.

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Charter its provision concerning freedom of religion may be a possible ground of such an annulment. However, in the action against the measures applied by the State under national law and their compatibility with EU law individuals can rely only on remedies in their national courts and their reference for preliminary ruling to the ECJ (Article 267 TEU).39 In respect to those remedies previously developed complex principles concerning direct effect remain in force.40 Even though the courts of last instance are obliged to refer to ECJ, the areas pertaining to issues of diversity and religious pluralism may not overlap with EU law. The ECJ’s jurisdiction, even in the case of successful reference for such a ruling, is limited to control whether national measures are in compliance with the EU law. With the abolished system of pillars certain human rights areas, especially in the area of freedom, security and justice may fall under the provisions of EU law and thus are limited to the areas of competences of the Union. Problems related to cultural and religious diversity, however, touch individuals primarily in relations with their countries of residence and the domestic law. Issues such as contents of school curricula, regulation of dress code in public areas, display of religious symbols, criminalisation of certain forms of expression, registration of religious communities or regulations of state-church relationship will not fall under the scope of EU law and remain in the sole competence of the Member States (Article 4 TEU and 4 TFEU). As mentioned above, obligations stemming from the Charter, including obligation to secure freedom of religion and possible judicial scrutiny of compliance with those obligations will also be limited to the areas of the Union’s competences.41 Human rights issues relevant from the point of view of diversity and religious pluralism that may arise before ECJ may stem primarily from employment relations and as such fall under under provisions of the Employment Equality Directive42 which bans discrimination in employment on the grounds of among others, religion or belief. If the violation stems from an act of an EU institution, which according to Balthasar includes Regulations,43 an individual may bring an action for annulment. If the violation stems from a breach of EU law by the State, failure to implement or incorrect implementation, such a measure can be 39. For a complete guide concerning all actions available to individuals, see e.g., Vaughne Miller, Taking a complaint to the Court of Justice of the European Union, House of Commons, International Affairs and Defence Section, SN/IA/5397, 11 March 2010. 40. For a detailed account of basic principles and remedies in national court, see: Craig and de Burca, EU Law, supra note 13, at 268-343. 41. See e.g., Gil-Bazo, ‘The Charter of Fundamental Rights of the European Union’ supra note 9, at 36. 42. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ 2000 No. L300/16. 43. Balthasar, ‘Locus standi rules’, supra note 38.

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challenged before national courts and only in the case of reference for preliminary ruling shall the ECJ rule on the interpretation of the EU law44. Another area where human rights issues relevant from the point of view of diversity and pluralism may arise is the area of freedom, security and justice and in particular issues concerning asylum falling under share competence of the EU and the Member States. It must, however, be remembered that the possibility of challenging EU law or compliance with EU law and the Charter of Fundamental Rights is reserved first of all for EU citizens. As van den Berghe notes, EU law does not entirely ban discrimination against non-EU nationals.45 Even if we assert, analogically to Gil-Bazo, that the right to asylum is an individual and directly enforceable right, practical enforcement of this right may be dependent on national courts. It is not certain whether national courts and, in a case of reference for a preliminary ruling, the ECJ will expand the interpretation of the prohibition on the grounds of nationality included in Article 18 (formerly Article 12) to non-EU citizens. So far the ECJ has interpreted this prohibition and as referring to EU nationals only.46 For the reasons of practical enforceability of rights, I suggest that in the future the ECtHR rather than the ECJ will continue to be the main legal forum for deciding upon measures directly touching individuals in the area related to religious and cultural pluralism. Despite the reform of the human rights protection in the Union, inclusion of the right to freedom of religion and the seemingly complete and mutually complementary nature of three pillars of protection the reforms introduced by the Treaty of Lisbon are unlikely to bring any revolutionary changes in this regard. Even though the reforms of the Lisbon Treaty have theoretically closed certain gaps and uncertainties in the European system of rights protection multiple problems remain open. The specific area related to diversity and religious pluralism will continue to be dominated by the activities of the ECtHR and the CoE rather than the ECJ. Due to the procedural aspects and limited access of individuals the Treaty of Lisbon will not bring any fundamental changes in the area or radically influence developed autonomy of the European and the international law orders.

44. E.g., Miller, Taking a complaint to the Court of Justice of the European Union, supra note 39. 45. van der Berghe, ‘The EU and Issues of Human Rights Protection’, supra note 18, at 142. 46. See more e.g. Bob Hepple, ‘Race and Law in Fortress Europe’, 67 The Modern Law Review (2004) 1-15 or Mark Bell, ‘The New Article 13 EC Treaty: A Sound Basis for European AntiDiscrimination Law?’, 6 Maastricht Journal of European & Comparative Law (1999) 5-24 at 22.

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6. Developing Common Standards of Religious Coexistence in Europe Despite the recent change in the legal status of the Charter and the strengthened emphasis on diversity and pluralism in the EU legal order, structural, and procedural issues appear to limit enforceability and practical significance of the provisions concerning freedom of religion. Due to limited areas of applicability of the Charter provisions, convergence standards in the area of multi-religious coexistence in Europe will likely continue being primarily based on Article 9 of the ECHR guaranteeing freedom of religion. This section analyses recent principles developing in the interpretation of Article 9 and the latest response to these developments and their harmonising impact. Interpretation of the legal limits of freedom of religion and legality of states’ actions in this area can be found in the case law of ECtHR and interpretative documents issued by Council of Europe bodies.47 The Parliamentary Assembly of the CoE has been particularly active, adopting recommendations and resolutions dealing with religious pluralism. These recommendations constituting a large body of interpretative soft-law focusing primarily on notions of ‘necessity in a democratic society’ in regard to freedom of religion and its relationship with other rights include among others: Recommendation 1396 (1999): Religion and democracy;48 Recommendation 1720 (2005): Education and religion;49 Recommendation 1804 (2007): State, religion, secularity and human rights,50 or Recommendation 1805 (2007): Blasphemy, religious insults and hate speech against persons on grounds of their religion.51 In addition also the European Commission for Democracy Through Law (Venice Commission) contributed to the development of the common European standards in the area through its own reports and recommendations, e.g. concerning the issue of blasphemy and hate speech.52 47. E.g. Kokkinakis vs. Greece, Application no. 14307/88, European Court of Human Rights, Decision (25 May 1993); Folgero v. Norway, Application no. 15472/02, European Court of Human Rights, Decision (29 June 2007); Zengin v. Turkey, Application no. 1448/04, European Court of Human Rights, Decision (9 October 2007); Grzelak v. Poland, Application no. 7710/02 European Court of Human Rights, Decision (15 June 2010) or recommendations mentioned below. 48. Parliamentary Assembly of the Council of Europe Recommendation 1396 of 27 January 1999 on Religion and democracy. 49. Parliamentary Assembly of the Council of Europe Recommendation 1720 of 4 October 2005 on Education and religion. 50. Parliamentary Assembly of the Council of Europe Recommendation 1804 of 29 June 2007 on State, religion, secularity and human rights. 51. Parliamentary Assembly of the Council of Europe Recommendation 1805 of 29 June 2007 on Blasphemy, religious insults and hate speech against persons on grounds of their religion. 52. European Commission For Democracy Through Law (Venice Commission), Report on the

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In the above-mentioned recommendations the leading idea is the creation of a diverse and religiously plural democratic society. The key objective evident in these documents is the achievement of religious pluralism. The recommendations and documents issued in response to them emphasise inter alia that ‘religious pluralism is an inherent feature of the notion of a democratic society and where it gives rise to religious divisions, public authorities should not eliminate religious pluralism but strive to ensure that the various groups respect each other’53 or that the Member States of the Council of Europe affirm their ‘commitment to ensuring that diversity is a source of mutual enrichment, by promoting political, intercultural and interreligious dialogue’.54 They encourage religious diversity and discourage the demands of religious fundamentalism. Moreover they advocate for separation of the religious and the political. Recommendation 1804 (2007), State, religion, secularity and human rights underlines in particular that: ‘one of Europe’s shared values, transcending national differences, is the separation of church and state’55 and that governance and religion should not mix.56 The recommendation expresses concern that legislation of several CoE Member States still contains anachronisms dating from times when religion played a more important part in European societies.57 In addition specific recommendations, e.g. recommendations regarding blasphemy laws, advocate for the creation of more harmonised European approaches and legal solutions. In the case of blasphemy, such more harmonised approaches, according to e.g. the CoE’s Parliamentary Assembly are necessary with regard to freedom of expression as a value of vital importance for democracy and should include revision of blasphemy laws.58 The recommendations advocate for revising and abolishing blasphemy laws, as reflecting the historically dominant position of certain religions in certain Member States. They insist that the public debate must be open for expressions which may offend, shock and disturb. The goal of achieving religious pluralism, neutrality and impartiality in matters of religion has also lately received recognition in the jurisprudence of the ECtHR. The latest judgements, especially those dealing with the area of education, began shaping not only theoretical but practical standards. Principles adopted in cases

53. 54. 55. 56. 57. 58.

relationship between freedom of expression and freedom of religion: the issue of regulation and prosecution of blasphemy, religious insult and incitement to religious hatred (17-18.10.2008). Document 9215, Recommendation 1396 (1999): Religion and democracy, Reply from the Committee of Ministers, 765th meeting of the Ministers’ Deputies, September 2001, p. 1. Document CM/AS(2006) Rec 1720, Recommendation 1720 (2005): Education and religion, Reply from the Committee of Ministers, 965th meeting of the Ministers’ Deputies, May 2006, p.1. Recommendation 1804 (2007), supra note 50, para 4. Ibid., at para 10. Ibid., at para 15. Recommendation 1805 (2007), supra note 51, paras 8-10.

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such as Folgerø v. Norway,59 Zengin v. Turkey60 or Grzelak v. Poland61 underline the duty of the state to maintain neutrality in its approach to adherents of various religious denominations or non-believers. The ECtHR in Folgerø underlined that the state must make sure that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner. Moreover, in Zengin v. Turkey, the Court emphasised that a course on specific religion, which is designed to preach a religion, cannot be compulsory. The exemption must be granted in order to comply with principles of democracy and pluralism. The rights of individuals have been interpreted through the prism of principles seen as the core of democracy and in the light of the above-mentioned soft-law. A liberal-democratic model has begun to emerge with the centrality of individual rights, the principle of state neutrality, and the idea of democratic consensus62 rather than dissensus.63 However, the CoE model is not a consistent or coherent unity. The famous and controversial judgement in the case of Lautsi v. Italy,64 which initially found the presence of crucifixes in the Italian classroom to violate freedom of religion and belief, has stirred up a heated debate over the meaning of democracy, the role of international human rights instruments and meaning of state neutrality and sovereignty.65 Eventually the judgment was overturned by the Grand Chamber in March 2011. The Grand Chamber based its reasoning on the ‘wide margin of appreciation’ of the State in deciding over measures regarding neutrality and religious pluralism.66 The revised judgement came as a response to the question of the legitimacy of a supranational court to intervene in the constitutional orders of the Member States, which had been frequently raised before the revision of the Lautsi ruling. As Kastanas observes the ECtHR is caught simultaneously on the dual horns of affirming unity and respecting diversity.67 It has been argued that the European standard of rights ought not to be detached from the constitutional traditions 59. 60. 61. 62.

63. 64. 65. 66. 67.

Folgero v. Norway, supra note 47. Zengin v. Turkey, supra note 47. Grzelak v. Poland, supra note 47. I ascertain elsewhere that the model emerging in the case-law and soft-law of the Council of Europe resembles strongly classical liberal democratic models, especially that proposed by J. Rawls, see more: Dorota Anna Gozdecka, ‘Religions and legal boundaries of democracy in Europe: European commitment to democratic principles’, University of Helsinki, Faculty of Law (2009), . On the idea of democracy as dissensus, see e.g. Chantal Mouffe, The Democratic Paradox (Verso: London, New York, 2000). Lautsi v. Italy, Application no. 30814/06, The European Court of Human Rights, Grand Chamber Judgment, Decision (18 March 2011). See e.g. Joseph H.H Weiler., ‘Lautsi: Crucifix in the Classroom Redux’, 21The European Journal of International Law (2010). Lautsi v. Italy, supra note 64, at paras. 34, 49, 55, 56, 61, 68, 69, 70, 76. Kastanas quoted in Paolo G. Carozza, ‘Uses and Misuses of Comparative Law in International

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of the Member States and ought not to be based on a universalistic perception of rights. As Besson observed ‘specific obligations to respect the same general rights and underlying obligations need not always be the same depending on both circumstances and agents targeted’.68 Helfer on the other hand advocated for deeper embeddedness of the institutional European human rights protection in the national systems, arguing that it will allow politically and culturally heterogeneous democracies to develop divergent but not incompatible standards.69 Some have argued that in fact a particular rather than universal conception of rights is far more accurate, because rights vary and cannot be uniformly understood in Europe.70 Proponents of the indivisibility and universality of rights, based on the theory of rights, on the other hand, insisted that the margin of appreciation cannot nullify the obligations of the state to secure state neutrality.71 Others implied that the doctrine of the margin of appreciation is a threat to the rule of law itself. Brauch argued that the language in which the doctrine itself is described is unclear and leads to unpredictable results72 while Dembour has described the doctrine as ‘cultural relativistic’.73 However, the question of legitimacy, which justified the application of the margin of appreciation doctrine, seemed to be the underlying concern in the Grand Chamber’s reasoning in Lautsi. The judges took the position that presence of crucifixes belongs to the Italian tradition and constitutes a part of Italian identity.74 The state is in the position to determine whether a tradition ought to be continued and therefore a decision in this matter falls within the margin of appreciation of the states. The lack of European consensus on the question

68. 69. 70. 71.

72. 73.

74.

Human Rights: Some Reflections on the Jurisprudence of the European Court of Human Rights’, 73 Notre Dame Law Review (1997-1998) 1217-1237. Samantha Besson, ‘The European Union and Human Rights: Towards a Post-National Human Rights Institution?’, 6 Human Rights Law Review (2006) 323-360. Laurence R. Helfer, ‘Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime’, 19:1 The European Journal of International Law (2008) 125-159. Weiler., ‘Lautsi’, supra note 65. Jeroen Temperman, ‘State Neutrality in Public School Education: An Analysis of the Interplay Between the Neutrality Principle , the Right to Adequate Education, Children’s Right to Freedom of Religion or Belief, Parental Liberties, and the Position of Teachers’, 32 Human Right Quarterly (2010) 865-897. Jeffrey A. Brauch, ‘The Margin of Appreciation and the Jurisprudence of the European Court of Human Rights: Threat to the Rule of Law’, 11 Columbia Journal of European Law (20042005) 113-150. Marie-Bénédicte Dembour, ‘Following the Movement of a Pendulum: Between Universalism and Relativism’, in Jane Cowan, Marie-Bénédicte Dembour and Richard A. Wilson (eds.) Culture and Rights: Anthropological Perspectives (Cambridge University Press: Cambridge, 2001) 56–79, at 56. Ibid., at paras 66-67.

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of the presence of religious symbols in State schools is underlined as a primary justification of such a wide margin of appreciation and lack of legitimacy of a European court to intervene.75

7. The Mosaic of European Standards and the Response of the Member States to the Developing ‘Common Standards’ in EU and International Law Despite the strong effort to codify and develop common principles in the area pertaining to religious pluralism in Europe, the application of the emerging standards in practice encounters multiple difficulties. In the process of European integration, countries have avoided open confrontation between their religious traditions and developing system of EU law. This approach was confirmed in the declaration accompanying The Treaty of Amsterdam on the status of churches and non-confessional organizations76 and repeated in the Article 17 of the current TFEU: 1. The Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States. 2. The Union equally respects the status under national law of philosophical and non-confessional organisations. 3. Recognising their identity and their specific contribution, the Union shall maintain an open, transparent and regular dialogue with these churches and organisations.

Human rights stemming from the ECHR and the CoE’s recommendation suggesting, e.g. that religion and governance and the state and church should not mix also have a limited legal effect in European conditions. The mosaic of constitutional relationships between church and state in Europe includes in addition to models of separation and neutrality, systems where the endowment of religious values is secured through the Constitution, e.g. in Malta.77 Section 2 of the Maltese Constitution titled ‘State religion’ establishes not only endowment but also sanctions the authority of the Catholic Church over interpretation of principles as to their moral rightness or wrongness. 75. Ibid., at para. 70. 76. Declaration on the status of churches and non-confessional organisations (Treaty of Amsterdam), which secures position of national churches and relations between states and religious communities. 77. The Maltese Constitution from the year 1964, with the latest amendments from the years 1994 and 1996, in Section 2 titled ‘State religion’ establishes that: 1. The religion of Malta is the Roman Catholic Apostolic Religion. 2. The authorities of the Roman Catholic Apostolic Church have the duty and the right to teach which principles are right and which are wrong.

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For this reason, despite the recent effort towards the development of certain common European principles and standards in the area of freedom of religion, the mosaic of approaches towards issues of religious pluralism and diversity is rich. This section approaches incommensurable differences in the constitutional traditions of European countries belonging both to the EU and the CoE. Due to historical differences in the development of church and state relationship, application of the developing principles related to religious pluralism in European countries is not as coherent as the above European legal sources and soft law advocate for. Instead it varies greatly in various countries of Europe. Areas such as religious education, presence of religious symbols in public sphere, freedom of speech in a multicultural society or equal access of European women to reproductive rights are approached in non-coherent and often contradictory manner in various European countries.78 Thus we have on the one hand, multiple religious courts, including Sharia Councils, working in the United Kingdom,79 but on the other hand introduction of burqua bans in public areas in Belgium,80 Italy81 or France,82 where the ban has recently begun to be enforced.83 Similarly the developments in freedom of speech in some countries go towards abolishing of blasphemy, like for instance in Denmark, where the authorities decided not to prosecute the publishers of Mohammad cartoons.84 At the same time though, blasphemy continues to be invoked as a basis for prosecution for instance in Greece.85 Furthermore, we have countries where the offence of blasphemy appears to be slowly transformed into an offence of hate speech. The Finnish blasphemy 78. See e.g. Zsolt Eneyedi and John T. S. Madeley, Church and State in Contemporary Europe, the Chimera of Neutrality (Frank Cass Publishers: London,2003) or: J.E. Goldschmidt and M.L.P Loenen (eds.), Religious Pluralism and Human Rights in Europe: Where to Draw the Line? (Intersentia: Antwerpen, Oxford, 2007). 79. See, e.g. Gillian Douglas G, Norman Doe, Sophie Gilliat-Ray, Russell Sandberg and Asma Khan, Report: Social Cohesion and Civil Law: Marriage, Divorce and Religious Courts, Cardiff University (June 2011) (accessed on 21 December 2011). 80. Loi visant à interdire le port de tout vêtement cachant totalement ou de manière principale le visage (2289/6) adopted on 29 April 2010, Protocol from the voting available at (accessed on 21 December 2011). 81. Modifica all’articolo 5 della legge 22 maggio 1975, n.152 concernente il divieto di indossare gli indumenta denominati niquab e burqua, adopted on 2 August 2011, available at (accessed on 21 December 2011). 82. Loi no. 2010-1192 interdisant la dissimilation du visage (11 October 2010) which entered to force six month thereafter, available at (accessed on 21 December 2011). 83. See, e.g. ‘Women in face veils detained as France enforces ban’, BBC News, 11 April 2011, available at: (accessed on 21 December 2011). 84. The Director of Public Prosecutions, Decision on possible criminal proceedings in the case of Jyllands-Posten’s Article ‘The Face of Muhammed’, File No. RA-2006-41-0151, 15 March 2006. 85. Freedom House, Policing Belief: The Impact of Blasphemy Laws on Human Rights – Greece, 21 October 2010, (accessed 18 April 2011).

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ban has lately been invoked as the reason for prosecution in the case of Hallaaho in Finland,86 but the courts, including the Court of Appeals, relied on the provisions of disturbance of the religious peace rather than interpreting it as an offence of God and religion. Diverse constitutional traditions concerning the position of religion create an uneasy ground for any common convergence criteria in the area of freedom of religion. Therefore many attempts to interpret rights with the help new emerging principles, such as religious pluralism, often meet with resistance from European countries. Such an interpretation may be seen as a European imposition infringing upon a constitutional tradition and democratic legitimacy, as e.g. the reasoning in the revised case of Lautsi v. Italy illustrates.

8. What Kind of European Democracy? Europe as a Crucible of Democratic Paradox. These human rights dilemmas in the area of religious pluralism and diversity in Europe are a perfect illustration of what Mouffe calls ‘democratic paradox’. The philosopher of dissensual democracy observes that the tensions between the demos and the static perception of rights are inherent to democracy and impossible to reconcile even within a nation state: It is ... crucial to realise that, with modern democracy, we are dealing with a new political form of society whose specificity comes from the articulation between two different traditions. On one side we have the liberal tradition constituted by the rule of law, the defence of human rights and the respect of individual liberty; on the other the democratic tradition whose main ideas are those of equality, identity between governing and governed and popular sovereignty.87

These tensions between liberal and what I will call further republican understanding of democracy88 are clearly visible in the European discourses on rights. The dilemma of constitutionalising rights, while at the same time seeking democratic legitimacy, reverberates in the European and international law. On the one hand, we can observe that the emphasis on rights in Europe has been strengthened. In addition to the ECHR system, the Lisbon Treaty reformed the EU system of fundamental rights into a seemingly coherent, written system including basic principles and mechanisms of control. Some argue that such developments 86. Mölsä, Ari, ’Halla-ahon blogi tuomio pysyi myös hovissa’, Yle Uutiset, 29 October 2010, (accessed on 21 December 2011). 87. Chantal Mouffe, The Democratic Paradox, supra note 63, at 2-3. 88. See, e.g., Richard Bellamy, Dario Castiglione, ‘Democracy, Sovereignty and the constitution of the European Union: The Republican Alternative to Liberalism’, in Zenon Bankowski and Andrew Scott (eds.), The European Union and its Order (Blackwell: Oxford, 2000) 169-206.

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could be characterised as a constitutionalisation of rights89 even if its text avoids any reference to the constitution. Pernice argues that the Treaty of Lisbon breaks with traditional conceptions of the political organisation of societies, challenges the theories of states and constitutions and promises a model of supranational arrangements for the pursuit of goals in the public interest common to the peoples concerned.90 He ascertains that centrality of rights is one of the crucial elements of constitutionalisation, an expression of consensus and a foundation of the European social contract. Thanks to the supranational nature of the system superseding traditional boundaries of the state, he argues, the constitutionalism introduced by the Treaty can be characterised as multilevel constitutionalism.91 On the other hand, the idea of demos and the constitutional legitimacy of supranational norms remains equally significant. Reh, after analysing the formal, material and symbolic functions of the Treaty is more sceptical as to its constitutional nature.92 Reh, relying on Raz’s concept of a constitution, underlines that the ‘thick’ aspect of constitutionalism was weakened by the Treaty of Lisbon primarily due to the weak character of the symbolic function of the Treaty. By ‘symbolic’ the author understands the public recognition and acceptance of the provisions of constitutional nature. A constitution ought to generate shared meaning, general consent and express legitimacy.93 Some, like Smismans, refuse to give much significance at all, let alone constitutional significance, to the EU discourse on rights. The author argues that the European Union’s fundamental rights system is in fact a political myth more than a founding principle of integration.94 He claims that the implementation of fundamental rights standards in early judgements such as Stauder95 did not introduce any new standards and in fact left the area without special significance for market integration, which was the primary reason of the European integration. The question of international constitutionalisation of rights is a complex one. Even defining ‘constitution’ or constitutionalism’ remains problematic and international constitutionalism remains a contested concept.96 As Besson observes problems of legitimacy appear to be the key issues in the recent constitutional

89. See e.g. Ingolf E. A. Pernice, ‘The Treaty of Lisbon: Multilevel Constitutionalism in Action’, 15 Columbia Journal of European Law (2008-2009) 349-407. 90. Ibid., at 1-2. 91. Ibid. 92. Christine Reh, ‘The Lisbon Treaty: De-Constitutionalizing the European Union’, 47 Journal of Common Market Studies (2009), 625-650. 93. Ibid. 94. Stijn Smismans, ‘The European Union’s Fundamental Rights Myth’, 48 Journal of Common Market Studies (2010) 45-66. 95. Case 29/62, Stauder v. City of Ulm [1969] ECR 419. 96. See e.g., Alec Stone Sweet, ’Constitutionalism, Legal Pluralism, and International Regimes’, 16 Indiana Journal of Global Legal Studies (2009) 621-645.

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developments of both European and international law.97 Growing pluralism of different legal regimes coexisting in the same territory makes it increasingly difficult to speak of international constitutionalism.98 The hierarchy of international law is blurred and their superiority over national constitutions becomes frequently contested.99 Recent developments in the area of human rights in Europe illustrate all of these problems. Furthermore, emphasis on the universal understanding of rights in Europe appears no longer defensible, even though they constitute the underlying foundation of European integration. The necessity of contextualisation requires a certain level of bendability of rights, as Kinley suggests.100 The pluralisation of standards, however, ought not to lead to the lack of accountability for possible rights violations. Formal constitutionalisation of rights in the EU law offers no remedy to the problem of incoherence of intertwined legal standards. Thus a tension, between on the one hand, the need of flexibility and contextualisation of rights and on the other hand securing the accountability for possible violations appears inescapable. The search for democratic legitimacy and growing international law pluralism, attempts to secure the most legitimate, democratic and deeply contextual protection of rights. However, it at the same time risks serious fragmentation of human rights protection. In the European conditions this fragmentation leads to the creation of multiple loopholes allowing for selective rather than contextual application of different legal principles. This problem embodies nothing else than the ‘democratic paradox’ described by Mouffe. Despite the development of an improved, strengthened and on the surface coherent model of human rights protection in Europe, the fragmentation potential on the surface level is so great, that speaking of any common European approaches in the area of diversity and religious pluralism becomes extremely challenging, if not impossible. This complex sketch of a contradictory and intertwined legal puzzle leaves the following questions for further discussion: Is fragmentation a real problem of international law or perhaps a natural phenomenon inherently connected with growing pluralism of legal regimes?101 What is the future of rights and their role in international law and democratic theory? Should democracy and 97. Samantha Besson, ‘Whose Constitution(s)? International Law, Constitutionalism, and Democracy’, in Jeffrey L. Dunoff and Joel L. Trachtman, Ruling the World? Constitutionalism, International Law, and Global Governance (Cambridge University Press: Cambridge, 2009) 381-408. 98. Sweet, ’ Constitutionalism, Legal Pluralism, and International Regimes’, supra note 98. 99. Besson, ‘Whose Constitution(s)?’, supra note 97. 100. David Kinley, ‘Bendable Rules: The Development Implications of Human Rights Pluralism’, in Caroline Sage, Brian Z. Tamanaha and Michael Woolcock (eds.), Legal Pluralism and Development Policy (Cambridge University Press: Cambridge Forthcoming). 101. Martti Koskenniemi and Päivi Leino, Fragmentation of International Law? Postmodern Anxieties, 15 Leiden Journal of International Law (2002) 553-579.

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rights be decoupled, like Besson argues?102 And if so, how should we decouple them in order to secure the right to have rights?103 Finally, how can we sketch the boundaries of what Kinley calls ‘rights bendability’?

9. Conclusions The area pertaining to religious pluralism and diversity is a perfect experimental crucible of European democracies. More than any other area, it illustrates incommensurable differences between various legal regimes and their approaches to the same legal principles or even analogically constructed norms. Issues of the legal pluralism of regimes, growing fragmentation of the rights standards versus problems of appropriate contextualization, coherence and legal certainty, problems of legitimacy versus the existence of a common core of rights, all come unmasked in the complex mosaic of European legal systems. First of all, as this article illustrated, procedural and systemic complexity often results in such an interpretation of rights that focuses primarily on the mutual relationships between legal orders. In such a systemic interpretation the rights bearers and communities appealing for the protection and the very questions of inclusion might often remain secondary and give way to the concern for the independence of different legal orders. Initiatives attempting to focus on centrality of rights and securing, for instance religious pluralism, may be found too universalistic and thus illegitimate. Strong focus on the interpretation of freedom of religion and religious pluralism may, as illustrated for instance by the Lautsi case, result in an equally strong concern for the legitimacy of developing norms. As a result, strong European human rights pluralism rather than human rights coherence is becoming a reality of our times. The boundaries of that pluralism need to be carefully thought through in order to maintain both substantive meaning of rights and secure flexibility and legitimacy of the systems of rights protection. Whereas universality is no longer desirable, human rights pluralism cannot mean that the protection of rights bearers becomes secondary and gives way to mere systemic considerations. If the search for democratic legitimacy goes as far as to deny the substantive meaning of rights, can we still talk of democracies? Democratic paradox appears to be an inherent feature of democracy, where the static conception of rights is in a permanent friction with dynamics of the demos in question.

102. Samantha Besson, ‘Human rights and democracy in a global context: decoupling and recoupling’, 4 Ethics and Global Politics (2011) 19-50. 103. Ibid.

Strategy and Tactics Robert Knox* AbstrAct: Critical international legal scholars have long grappled with the question of how to intervene in legal and political debates. In recent years one trend has been to argue that it is necessary to intervene ‘strategically’ in such debates. However, what is meant by ‘strategically’ in this instance is an essentially pragmatic intervention focused on winning the debate in the short term. In the usual language, such an intervention would be called tactical as opposed to strategic, with ‘strategy’ referring to one’s longer term, structural objectives. This article argues that contemporary critical scholarship has lost sight of the distinction between strategy and tactics, resulting in the systematic exclusion of the former from political and theoretical discourse. The article begins by reconstructing the division between strategy and tactics. Following this, it proposes what a strategic objective for critical international lawyers might look like. It is then argued that in actual fact interventions in debates have been purely tactical interventions couched in the language of ‘strategy’. The article then traces the problems that flow from this – arguing that a perpetual focus on short term, conjunctural considerations turns a supposedly ‘strategic’ adoption of liberal legalism into a capitulation to it. The article next traces how the Marxist tradition has understood the intimate relationship between strategy and tactics, and its usage of these terms to navigate the debate around reform and revolution. Finally, the piece attempts to reconstruction a specifically legal strategy that draws on the insights provided by the Marxist tradition. Keywords: strategy, tactics, Marxism, critical legal studies, international legal theory By rushing into sordid reformist compromises or pseudorevolutionary collective actions, those driven by an abstract desire for immediate effectiveness are in reality obeying the ruling laws of thought, adopting a perspective that can see nothing but the latest news. In this way delirium reappears in the camp that claims to be opposing it. A critique seeking to go beyond the spectacle must know how to wait. Guy Debord1 *

PhD Candidate, London School of Economics and Political Science. This paper was presented at the Fourth Annual Conference of the Toronto Group for the Study of International, Transnational and Comparative Law and the Towards a Radical International Law workshop, so my thanks go to the organisers, my co-panellists and the audience at these events. My deepest thanks to Irina Ceric, Giorgos Galanis, Susan Marks, China Miéville, John Haskell,

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1. Introduction In a 1990 interview in The Postcolonial Critic, Gayatri Spivak described how she related her theoretical positions to her more ‘political’ interventions. She argued that although – theoretically and intellectually – she was opposed to ‘universalism’ or ‘essentialism’, it was necessary to make a ‘strategic choice’2 when intervening politically. This strategic choice involved recognising that since the language of universalism or essentialism was the language in which political debates were conducted, one had to adopt this language in order to make an intervention. Thus, she ‘spoke of universality because universality was in the air from the other side in the talk of female discourse ... and since I believe that one shouldn’t throw away things but use them, strategically ... perhaps here was an item which could be used as a universal signifier’.3 This position – that anti-essentialists should not simply discard essentialism, but must instead deploy essentialist arguments in concrete political contexts – has come to be known as ‘strategic essentialism’.4 Yet although such a position has an evident attraction, one can immediately imagine several problems with it. The first problem is when one should use essentialism and when one should not. Spivak’s argument simply seems to be that there are some times that essentialism should be used and other times when it should not, what is lacking is any broader criterion as to its use or non-use. The second problem is that of legitimation. Is it really the case that we should always engage in debates purely on the terms that we find them? In so doing, do we not risk winning the particular argument, whilst at the same time legitimating those broader structures that we wish to undermine? The combination of these two arguments points to the third objection we can raise. If one uses essentialism whenever it is effective to do so, having no concern as to whether one’s behaviour is legitimating that very language, in what sense is one’s behaviour different from anyone else’s? In other words, does strategic essentialism, in this sense, not simply collapse into essentialism? These problems stem from the fact that, notwithstanding its characterisation, Spivak’s position is not one of strategic essentialism at all. Although her position clearly is one that pays attention to the pragmatic dimensions of political

1. 2. 3. 4.

Eva Hartmann, Florian Hoffmann, Paavo Kotiaho, Akbar Rasulov, Owen Taylor and Alberto Toscano for enduring my endless and incoherent rants about this topic, as well as their pertinent and useful responses to said rants. Thanks also (and again) to Paavo Kotiaho, Chris Taylor, Owen Taylor and Akbar Rasulov for their helpful comments on drafts of this article. In the typical academic inversion of corporate responsibility, all errors of style and substance remain my own. References to online sources are accurate as of 17 August 2011. Guy Debord, Society of the Spectacle (Rebel Press: London) at 119. Gayatri Spivak, The Postcolonial Critic: Interviews, Strategies, Dialogues (Routledge: New York and London, 1990) at 10. Ibid., at 11. See Bart Moore-Gilbert, Postcolonial Theory: Contexts, Practices, Politics (Verso: London, 1997) at 198.

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interventions, these dimensions are confined purely to the short term. Whilst she gives an account of how immediate arguments might be won, she gives no consideration of how to reconfigure the terms of these arguments, thus undermining essentialism itself. At best, her position is one of tactical essentialism, paying little or no attention to the deeper or longer term aspects of the critique of essentialism. This is not simply a matter of semantics. In conflating strategy and tactics – a distinction that will be explored more fully below – Spivak completely subsumes the former into the latter, with the essential outcome that all matters of ‘effectiveness’ are reduced to purely short term considerations. What relevance does this have for international law? Whilst international law has always been a central feature of international politics, it is only in recent years that it has become a regular feature in the news media, and a more important part of ‘everyday’ political life. This has been particularly evident in the centrality that international law has come to assume in the construction and contestation of foreign policy.5 There have been various moments that were especially important in this process: beginning perhaps with Kosovo and culminating in the War on Terror and the 2003 Iraq war. Most recently, debates around the killing of Bin Laden and the NATO intervention in Libya have been conducted in fiercely juridical terms.6 For those scholars and practitioners of international law who identify themselves as part of the left this has raised considerable problems. The main question has been how to intervene in these debates in a distinctively left or critical fashion. This is linked to the more general question of how – or even whether – the left can utilise international law in such a way as to advance the interests of the oppressed and exploited.7 It is here that the above considerations on 5. 6.

7.

Perhaps the author at the vanguard of the legalist opposition to the Iraq War and the detention, rendition and torture associated with it has been Philippe Sands. See, for example: Philippe Sands, Lawless World: Making and Breaking Global Rules (Penguin Books: London, 2006). Thus, in relation to Bin Laden, Ken Livingstone – former Mayor of London – asked ‘are we gangsters or a Western democracy based on the rule of law?’, Pippa Crerar, ‘Ken Livingstone: Killing makes Barack Obama look like a mobster’ in The Evening Standard, (visited 4 May 2011). Boris Johnson – present, Conservative, Mayor of London – argued similarly: ‘Let’s be clear: Osama bin Laden was executed – and for good reason’ in The Telegraph, (visited 8 May 2011). Against this see Eric Holder, ‘Bin Laden death ‘not an assassination’, (visited). In the Libyan context, most arguments mounted against the intervention have been on the grounds that ‘mission creep’ will mean that the intervening forces go beyond the bounds of the UN Security Council Resolution (and hence the action will breach international law), see for example Ian Traynor, ‘Libya: ‘mission creep’ claims as UK sends in military advisers’ in The Guardian, (visited 19 April 2011). See in particular: Robert Knox, ‘Marxism, International Law and Political Strategy’, 22 Leiden

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Spivak become relevant. As will be argued below, Spivak’s strategic essentialism is a sophisticated articulation of the basic logic that underpins a great deal of critical thinking on how to intervene in these debates. These accounts rely on the idea that a ‘strategic’ intervention has to be made into the existing debates, whilst focusing almost exclusively on short term, tactical considerations. Thus, strategy has become systematically confused with tactics, resulting in its exclusion from theoretical discourse. Those same problems identified in Spivak’s approach continually resurface in critical legal scholarship. This article seeks to challenge the above position and construct an alternative account of how critical international lawyers might intervene politically. To this end, Section 2 of this article briefly reconstructs the distinction between strategy and tactics. In Section 2.1 this is achieved through examining the original context in which this distinction was articulated, that of military theory. Section 2.2 turns to a slightly different sphere – that of political theory – and attempts to see how the originally military distinction has been understood in political terms. Section 3 examines how the distinction can illuminate the attempts of critical legal scholars to intervene in political debates. In section 3.1 an attempt is made to imagine what a strategic objective for critical legal theory might look like, through examining the theoretical commonalities of some of its participants. This is followed by section 3.2 which uses the letter written by several academics against the Iraq war as a lens to examine how critical scholars have understood the relationship between strategy and tactics. Here it will be argued that these writings have fallen into the trap outlined above – confusing strategy with tactics – and ultimately end up collapsing into liberalism. Section 3.3 argues that one of the central elements of this position is that it erects a rigid dichotomy between ‘liberal legalism’ and ‘legal nihilism’, in which liberal legalism cannot help but seem attractive. Section 4 examines a number of writers in the Marxist tradition, arguing that their understanding of strategy allowed them to bridge the divide between liberal legalism and legal nihilism. Finally, in section 5, the article puts forward a specifically legal conception of the relationship between strategy and tactics, developing a position of ‘principled opportunism’.

Journal of International Law (2009) 413-426; Robert Knox, ‘Review Essay: The Degradation of the International Legal Order’, 18 Historical Materialism (2010) 193-207; Bill Bowring, ‘Marx, Lenin and Pashukanis on Self-Determination: Response to Robert Knox’, 19 Historical Materialism (2011) 113-127; Umut Özsu, ‘The Question of Form: Methodological Notes on Dialectics and International Law’, 23 Leiden Journal of International Law (2010) 687-707; Akbar Rasulov, ‘The Nameless Rapture of the Struggle: Towards a Marxist Class-Theoretical Approach to International Law’, 19 Finnish Yearbook of International Law (2008) 243-294 and Susan Marks, ‘International Judicial Activism and the Commodity-Form Theory of International Law’, 18 European Journal of International Law (2007) 199-211.

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2. The Anatomy of a Distinction 2.1. Politics as War Although today strategy is perhaps seen as synonymous with the world of business, it has its origins in what we might call military science, and continues to be a central term in the contemporary military world. Indeed many of those who used the terms ‘strategy’ or ‘tactics’ in describing politics were influenced directly by these military theorists.8 Accordingly, before turning to the political usage of the term, it is wise to begin with how these military theorists have dealt with these notions. Carl von Clausewitz, one of the most influential exponents of modern military theory, defined strategy as: [T]he use of the engagement to attain the object of the war ... It must therefore give an aim to the whole military action. This aim must be in accord with the object of the war. In other words, strategy develops the plan of the war, and to the aforesaid aim links the series of acts which are to lead to it; that is, it plans the separate campaigns and arranges the engagements to be fought in each of them.9

Strategy is – in essence – how it is that one would fight and win a war: connecting the various individual battles together so as to achieve this broader objective. In contradistinction to this is tactics, which is concerned with smaller and shorter term matters. Tactics are concerned with how to win the individual battles and engagements of which the war is composed.10 If we wish to translate this metaphor into more general terms, we might say that strategy concerns the manner in which we achieve and eventually fulfil our long term aims or objectives, whereas tactics concerns the methods through which we achieve our shorter term aims or objectives. The obvious conclusion 8.

See Jacob W. Kipp, ‘Lenin and Clausewitz: The Militarization of Marxism, 1914-1921’, 49 Military Affairs (1985) 184-191 and Sigmund Neumann and Mark von Hagen, ‘Engels and Marx on Revolution, War, and the Army in Society’, in Peter Paret (ed.), Makers of Modern Strategy from Machiavelli to the Nuclear Age (Princeton University Press, 1986) 262-280. Equally, many political actors were involved in armed struggles and so wrote directly on issues of strategy and tactics: see Che Guevara, Guerrilla Warfare (University of Nebraska Press, 1998) and Mao Tse-tung, ‘Problems of Strategy in China’s Revolutionary War’, in Selected Works of Mao Tse-tung: Volume I (Foreign Languages Press: Peking, 1967) 179-254. 9. Karl von Clausewitz, War Politics and Power (Gateway Press: Chicago, 1965) at 171. 10. Clausewitz’s definition here is not taken as necessarily definitive but as both the classic definition, and representative of how many have characterised strategy, thus Montgomery defined strategy as ‘the art of the conduct of war, tactics the art of fighting’ (Field-Marshal Montgomery of Alamein, A History of Warfare (Collis: London, 1968), see also B.H. Liddell Hart, Strategy (Faber: London, 1967) at 321, Mao Tse-tung ‘Problems of Strategy’ supra note 8 at 183, and Guevara ‘Guerilla Warfare’ supra note 8 at 14. The Oxford English Dictionary defines strategy as the ‘art of a commander-in-chief; the art of projecting and directing the larger military movements and operations of a campaign’ in distinction to tactics which is ‘the art of handling forces in battle or in the immediate presence of the enemy’.

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here, and one that will be important to bear in mind throughout this article, is that when we talk of ‘pragmatism’ or ‘effectiveness’ it need not be referring to only the immediate situation. As will be explored more fully below, any tactical intervention will also have strategic consequences. This means that when thinking about effectiveness, it is necessary to understand the inherent relation between strategy and tactics.11 In so doing, the distinction allows us to consider how effective particular (seemingly ‘short term’) interventions might be in the longer term. The very obvious difficulty here is that in practical terms it may be quite difficult to distinguish between the long term and the short term. This is particularly true in the case of political interventions. More than this, however, temporality does not quite capture the distinction between a ‘battle’ and a ‘war’. Although it is clear that there are temporal differences between the two, there could be innumerable examples of long battles or short wars. Instead, the difference between a battle and a war (and therefore between tactics and strategy) seems to turn on a structural distinction, lying in the particular aims and objectives of the different types of engagement. Whilst the task of a battle is generally simply to defeat a given enemy militarily, the task of a war will be more complex, involving the disposition of forces, decisions about whether some battles should even be fought (or whether some ought to simply be lost) and complex political and diplomatic aspects.12 Of course this difference in kind generally does correspond to a distinction between the long and the short term, but this does not represent the ‘essence’ of the problem. As such, whilst temporality remains an important part of the distinction, it cannot be the sole factor underlying it.

2.2. Organic and Conjunctural Accordingly, it is not the case that the particular way in which the distinction operates in military terms can be directly mapped onto the political and legal sphere. This is especially true given that war is – to quote Clausewitz again – ‘the continuation of policy by other means’13. Despite this, there is a common thread running between military and political theory on this subject, with political thinkers sharing a similar understanding of strategy as operating in the ‘long term’. In order to understand how this has been ‘translated’, it is useful to turn 11. See Guevara ‘Guerilla Warfare’ supra note 8 at 18-19 and Mao Tse-tung ‘Problems of Strategy’ supra note 8 at 183-184, for the necessary relation between strategy and tactics. 12. Peter Paret, ‘Introduction’ in Paret ‘Makers of Modern Strategy’ supra note 8 at 3. 13. Clausewtiz ‘War, Politics and Power’ supra note 9 at 83. One might note here Foucault’s inversion of this proposition, where he argues that ‘politics is the continuation of war by other means’, see Michel Foucault “Society Must be Defended” Lectures at the Collège de France, 1975-76 (Picador: New York, 2003). In this work he more generally develops a theory as to the central role of ‘war’ in structuring politics, and of the utility of concepts drawn from military theory in accounting for social phenomena.

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to Antonio Gramsci’s distinction between organic and conjunctural moments and the type of ‘criticism’ that both entail: [I]n studying a structure, it is necessary to distinguish between organic movements (relatively permanent) from movements which may be termed “conjunctural” (and which appear as occasional, immediate, almost accidental). Conjunctural phenomena too depend on organic movements to be sure, but they do not have any very far-reaching historical significance; they give rise to a political criticism of a minor, day-to-day character, which has as its subject top political leaders and personalities with direct governmental responsibilities. Organic phenomena on the other hand give rise to socio-historical criticism, whose subject is wider social groupings – beyond the public figures and beyond the top leaders.14

Gramsci articulated this distinction – in part – in order to understand the logic of strategic and tactical interventions in the political sphere.15 In this account, strategy is related to organic phenomena, that is to say those relationships which are relatively permanent, and serve as the basic or fundamental structure of the field in which the intervention is made. In terms of Marxist political economy, the prime example of such a phenomenon would be the mode of production (for instance feudalism or capitalism) and the relations of production of which it is composed. Strategic questions are those that are addressed at critiquing and overturning these relationships. Accordingly, we might say that strategic interventions are ‘revolutionary’,16 inasmuch as they address critiquing or abolishing the basic logic of the system. Moreover, since they address relationships that operate at a broader and less immediate level than other struggles, strategic decisions are likely to be informed in a greater sense by ‘theory’ (hence Gramsci’s reference to ‘socio-historic’ criticism) as it becomes more important to understand and unpack the logic of the system. However, these considerations remain ‘prudential’ or ‘pragmatic’ inasmuch as

14. Antonio Gramsci, Selections from the Prison Notebooks (Lawrence and Wishart: London, 2003) at 177-178. 15. ‘This should be accompanied by the explanation of what is meant in politics by strategy and tactics, by strategic “plan”, by propaganda and agitation, by command structure or science of political organisation and administration’, ibid., at 176. 16. In The Lessons of October, Leon Trotsky explicitly formulated the analogy in this way, arguing that: ‘By tactics in politics we understand, using the analogy of military science, the art of conducting isolated operations. By strategy, we understand the art of conquest, i.e., the seizure of power.’ Leon Trotsky, ‘The Lessons of October’, (visited). However, one need not think of revolution purely in its political sense here, one could equally think of revolution in the terms that Kuhn formulated it, as a ‘paradigm shift’ in a way of understanding the world, see Thomas Kuhn, The Structure of Scientific Revolutions (University of Chicago Press, 1996); for an attempt to apply this explicitly to radical politics and social science see David Harvey, ‘Revolutionary and Counter Revolutionary Theory in Geography and the Problem of Ghetto Formation’, 4 Antipode (1972) 1-13.

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they aim at finding the most effective methods to achieve a goal. The difference is simply that this goal is related to structural or systemic issues. By contrast tactics are concerned with conjunctural moments, that is to say those which are not structural in a direct sense. Tactics address those transitory conflicts and battles that occur in the political sphere, which could be a whole range of different issues: from an individual election, to a particular protest and so on. Consequently, there is a sense in which, in contrast to strategy, tactics would be more concerned with ‘reform’ than with revolution,17 since tactics deals with those occurrences which do not directly call the system into question. Of course, tactics and strategy do not exist in rigid isolation from each other. This is because – as above – any given act which has to be reckoned with ‘tactically’ will at the same time make up the broader pattern of engagements to which strategy directs our attention. Equally, there are situations in which the very ‘dayto-day’ issues may take on an immediately structural character, meaning tactical decisions will be immediately strategic. However, these ‘revolutionary’ situations are in fact extremely rare, occurring only in extraordinary historical conjunctures. For the majority of time the distinction between strategy and tactics is a necessary one because the critique of the basic structural logic of the system is not identical with every day struggles within it, and the critique of this structure is not one that has an immediate appeal to the majority of people. Thus, to go back to an earlier point, the distinction between strategy and tactics could be said to be a consequence of advancing a ‘revolutionary’ critique in nonrevolutionary times. This is where the issue of temporality returns, for whilst the distinction between strategy and tactics is a structural one, in non-revolutionary times it will almost always assume a temporal form. If the overturning of the social structure is not immediately on the cards, it must become a long term goal, whereas conjunctural issues necessarily operate in the shorter term. Since the strategy and tactics distinction only makes sense in non-revolutionary times, it follows that it will almost always appear in a temporal form. To put it simply, we might say strategy concerns finding methods to achieve long term, systemic aims, whereas tactics concerns finding methods to achieve short term, conjunctural aims.

17. To some degree this will be problematised below, in the exploration of how Marxists have navigated debates around reform and revolution, but it serves as a useful starting point. For an exploration of the function of revolution in contemporary international legal scholarship, see Owen Taylor ‘Reclaiming Revolution’, unpublished paper, presented at the Eighth Annual Historical Materialism Conference, 2011.

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3. Strategic essentialism redux 3.1. Law’s War and Legal Battlefields Whilst this schema might seem somewhat abstract, it is directly applicable to the way in which critical legal scholars have approached intervening in political and legal debates. Before examining how these interventions have been conducted, it is necessary to briefly outline the strategic and tactical issues at play. Critical international legal scholarship is a rather broad church, composed of a number of individuals situating themselves in various theoretical traditions.18 That being said, it is arguable that there are a number of theoretical positions around which there is a degree of convergence, and mark scholars out as belonging to the critical legal tradition.19 Whilst these may not capture every figure in the tradition, they provide sufficient overlap for us to think about what the content of a broadly critical legal strategy might be. In basic terms, these are – what we might call – the indeterminacy thesis, lawfare and structural bias. These three inter-linked positions provide the basic framework through which many critical scholars understand international law, so it is worth unpacking slightly what they mean and how they interconnect. There are many different variants of the indeterminacy thesis: legal realist (American and Scandinavian), structuralist, post-structuralist etc. However, whilst the reasons for indeterminacy may be divergent, it can be argued that they come to similar conclusions. In essence, the indeterminacy thesis refers to the idea that legal argument cannot be resolved ‘on its own (legal) terms’. This is because a given legal argument can be opposed by another – equally valid – legal argument, meaning that from within the law various outcomes will all be equally valid.20 As such, legal interpretation cannot be a ‘neutral’ affair of applying rules to a given situation, but always involves some level of political choice as to which conflicting argument will apply. Whilst one need not hold to the indeterminacy thesis in order to argue that legal

18. See David Kennedy and Chris Tenant, ‘New Approaches to International Law: A Biography’, 35 Harvard International Law Journal (1994) 417-460 at 418-420. This is not taken as an authoritative guide to the contemporary movement, but rather as a historical example of the diversity of the participants in the critical project. 19. See Thomas Skouteris, ‘Fin de NAIL: New Approaches to International Law and its Impact on Contemporary International Legal Scholarship’, 10 Leiden Journal of International Law (1997) 415-420. 20. For the classic account in international law see Martti Koskenniemi’s From Apology to Utopia: The Structure of International Legal Argument (Cambridge University Press, 2005). The literature on indeterminacy is large and varied – especially given the various approaches outlined above – but for some of the critical legal studies literature see Mark Kelman, A Guide to Critical Legal Studies (Harvard University Press, 1987) especially at pages 1-63 and Duncan Kennedy, A Critique of Adjudication: Fin de Siècle (Harvard University Press, 1997).

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decisions are political, the indeterminacy thesis necessarily implies a political dimension to legal decisions. ‘Lawfare’ is a very specific term which refers to the idea that international law is a part of modern warfare, and can be used as a weapon by both sides.21 But in this instance the particular usage implies a more general idea about the relationship between international law and the political process. Essentially, critical scholars argue that rather than international law being outside of relations of power, exploitation and domination it is already ‘part of the problem’, that is to say that international law has played and continues to play a role in constituting and legitimating these relations.22 This is because it at least partially creates the conditions in which political and economic power is exercised – by granting certain types of property, allowing certain types of violence, locating certain agents within certain social positions and granting them certain powers etc.23 In this view, law is not simply a negative relationship that constrains action, but also one that sets the conditions in which action takes place, enabling relations of domination and exploitation. The final element is that of ‘structural bias’. The following comment from Martti Koskenniemi gives a glimpse into how it has been understood by critical scholars. Koskenniemi argues that irrespective of the formal openness entailed by indeterminacy ‘the system still de facto prefers some outcomes or distributive choices to 21. Charles Dunlap, a central figure in popularising the term, defines it as ‘using – or misusing – law as a substitute for traditional military means to achieve an operational objective’ in Charles Dunlap, ‘Lawfare Today: A Perspective’, 3 Yale Journal of International Affairs (2008) 146-154 at 146. 22. David Kennedy ‘The International Human Rights Movement: Part of the Problem?’, 15 Harvard Human Rights Journal (2002) 101-125, which itself is a condensation of the argument he puts forward in The Dark Sides of Virtue: Reassessing International Humanitarianism (Princeton University Press, 2004). Kennedy deals much more explicitly with the idea of ‘lawfare’ in his book Of War and Law (2006, Princeton University Press). Along with Susan Marks’ article ‘State-Centrism, International Law, and the Anxieties of Influence’, 19 Leiden Journal of International Law (2006) 339-347 these are some of the primary exponents of the theoretical account of law’s role in constituting domination. Equally, there are a number of more historically focused accounts, for example Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press, 2005) and Balakrishnan Rajagopal, International Law from Below: Development, Social Movements and Third World Resistance (Cambridge University Press, 2003). 23. Although obviously not directly a work of international law, Duncan Kennedy’s analysis of the importance of law in conditioning the bargaining power of economic actors is both influential and exemplary in explaining law’s role in the constitution of power relations, see Duncan Kennedy, ‘The Stakes of Law, or Hale and Foucault!’ in Sexy Dressing Etc. (1995, Harvard University Press) at 85-125. Some examples of its use include Alvaro Santos ‘Three Transnational Discourses of Labor Law in Domestic Reforms’, 32 University of Pennsylvania Journal of International Law (2010) 123-202 and Robert Wai ‘Transnational Liftoff and Juridical Touchdown: The Regulatory Function of Private International Law in an Era of Globalization’ 20 Columbia Journal of Transnational Law (2001) 209-274.

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other outcomes or choices ... even if it is possible to justify many kinds of practices through the use of impeccable professional argument, there is a structural bias in the relevant legal institutions that makes them serve typical, deeply embedded preferences, and that something we feel that is politically wrong in the world is produced or supported by that bias.’.24 Whilst there are problems with this specific formulation, it does the final core insight of critical international lawyers, namely that law is not a neutral framework through which all interests can be equally expressed, but one which will systematically favour some interests over others.25 Provisionally then, these positions point to a theory about law and legal argument which argues that it occupies a central role in international politics. In this vision, international law helps to constitute and enable those relations that critical scholars want to fight and is not a ‘neutral’ instrument through which any actors can pursue their interests. Crucially, this is a theory about the structure of law and legal argument, which is not concerned with specific legal rules should be deployed or the outcomes of specific legal decisions, but is rather about the broader the relationship between law and social phenomena. These positions stand in contrast to the mainstream, liberal understanding of international law. The liberal position is the precise inverse of the critical one outlined above. In this understanding, international law is seen as a determinate body of rules, through which various interests could be expressed. Here international law is not said to be constitutive of relations of exploitation of domination, but rather to have played a crucial role in ending such relations historically (particularly in the case of colonialism) and in the present conjuncture to be systematically violated and abused by various superpowers.26 In this account international law is at worst a ‘neutral’ vessel, and at best the rule of law (as distinct from particular laws) is a force for good. This liberal understanding is one not simply held by lawyers or academic commentators, but is also the ‘common sense’ understanding of international law that structures public debate.27 Much of this debate proceeds on the understanding that various imperial actions are illegal, must be shown to be so, and contested in these terms.28 The applicability of the strategy and tactics distinction 24. Martti Koskenniemi, From Apology to Utopia, supra note 20, at 606-607. 25. See also China Miéville, Between Equal Rights: A Marxist Theory of International Law (Brill: Leiden, 2005) especially at 293 and Kennedy, ‘The International Human Rights Movement’, supra note 22. 26. See Sands, Lawless World, supra note 5; Geoffrey Robertson, Crimes Against Humanity (Penguin Books: London, 2006) and David Rose, Guantanamo: America’s War on Human Rights (Faber and Faber: London, 2004). 27. The articles cited supra note 6 give some idea of this. 28. Perhaps tellingly, some of the most cogent challenges to this approach have come from those on the right of the political spectrum, see Jack Goldsmith and Eric Posner, The Limits of International Law (Oxford University Press, 2007). Chase Madar’s columns in the American Conservative (visited 1 August 2011) provide a similar perspective that remains critical of international law’s role in international politics. 29. David Kennedy puts this point very strongly arguing that the penetration of law into decision making about war has led to an abandonment of responsibility. He therefore argues that ‘[t] he way out will not be to tinker with doctrines of the laws of force. If there is a way forward, it will require a new posture and professional sensibility among those who work in this common language. Recapturing the human experience of responsibility for the violence of war will require a professional style discouraged by the modern interpenetration of war and law’ Kennedy, ‘Of War and Law’, supra note 22, at 170. 30. Karl Marx, Preface and Introduction to A Contribution to the Critique of Political Economy (Foreign Languages Press: Peking, 1976), at 3. 31. China Miéville is perhaps the most consistent and strident exponent of this position, arguing that: ‘To fundamentally change the dynamics of the system it would be necessary not to reform the institutions but to eradicate the forms of law – which means the fundamental reformulation of the political-economic system of which they are expressions. The project to achieve this is the best hope for global emancipation, and it would mean the end of law’ Miéville, Between Equal Rights, supra note 2, at 318.

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In practical terms, of course, these are hardly mutually exclusive positions since any materialist critique relies on convincing people of its validity.32 The point is that both of these objectives are strategic and so are not directly concerned with winning arguments on the terms of liberal legalism (that is to say, whether given actions would be legal or illegal) but rather aim at overturning those very terms.33

3.2. We are Strategists? 3.2.1. Background Whilst it is clearly possible to imagine a strategic goal for critical legal scholarship, this is not something that has generally informed critical interventions in legal and political debates. Instead, this article will argue that one route that has frequently been taken is that of Spivak, whereby only tactical interventions occur, which are then branded as strategic interventions, foreclosing the possibility of an actual strategic intervention. The logic of this position, and the very real dilemma that gives rise to it, is best illustrated by examining an actual attempt by critical scholars to intervene in a legal-political situation. Since there are very few examples of such interventions, it is necessary to choose one that is rather well-worn, namely, the letter that several British-based critical legal academics wrote on the eve of the second Iraq war, contesting its legality.34 The background to the letter is well-known, but it is worth briefly rehearsing. In 2003 the debate around the invasion of Iraq was raging. Although many opposed it on moral and political grounds, the debate increasingly became dominated by the question whether or not the war would be legal. The United States and its allies (particularly in this case Britain) argued that Security Council Resolution 1441 had revived Security Council Resolution 678 (the ceasefire agreement that had ended the first Gulf War). On this basis, it was argued that since Iraq was in material breach of the Resolution, no further Security Council Resolution was needed to authorise the use of force. Furthermore, some in the United States argued that, in the changed conditions of the war on terror, it was not acceptable – in Condoleezza Rice’s words – to let a ‘smoking gun turn into a 32. Hence Marx argued that ‘theory itself becomes a material source when it has seized the masses’ in Karl Marx ‘Contribution to the Critique of Hegel’s Philosophy of Right: Introduction’ in Robert Tucker (ed.), The Marx-Engels Reader (W.W. Norton: New York, 1978) 53-65, at 60. 33. One response here might be to argue that there can be no strategy because it is not possible to transcend the status quo at all, at points this appears to be what Spivak (supra note 2, at 101) does, when she argues ‘since I believe that given our historical position that we have to learn to negotiate with structures of violence, rather than taking the impossible elitist position of turning our backs on everything ... I have to learn myself and teach myself to negotiate with colonialism itself ’. Some of the specifics of Spivak’s position will be contested below, but the analysis in this article applies – perhaps a fortiori – to those who believe strategy is impossible. 34. ‘War Would be Illegal’ in The Guardian, 7 March 2003, (visited 1.8.2011).

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mushroom cloud’.35 According to this line of argument, rather than wait for an attack to be ‘imminent’, a state could – acting in self defence – attack another state that was anticipated to use force.36 Whilst the US government did employ legal argument, it became especially crucial in Britain. Here, the possibility of the invasion was fiercely contested, and the juridical aspect came to the fore in public argument, with both sides invoking international legal argument. In particular, much of the legal argument opposing the war was couched in the liberal legal language outlined above: it was argued that the war would be illegal (hence the law was determinate), that the United States was ‘riding roughshod’ over international law with its stretched interpretations (so international law was not ‘part of the problem’) and that the world would be a better place if international ‘rule of law’ was respected (indicating that international law was at worst neutral and at best a force for good). Against this background, several critical scholars decided that the time was ripe for an intervention. Although these scholars all shared the anti-liberal critique of international law outlined above, they decided – for reasons that will be explained below – to intervene by arguing that the war in Iraq would be illegal, thus intervening in the debate on the (liberal) terms in which it was conducted. In this letter to The Guardian, they argued that ‘there is no justification under international law for the use of military force against Iraq’, since anticipatory selfdefence has ‘no basis in international law’ and any use of force under the Security Council’s mandate must be indicated by ‘clearly expressed assent’. Furthermore, they argued, to go forward in these respects would ‘seriously undermine the international rule of law’. The one concession made to the critique of international law was the admission that even with authorisation from the Security Council ‘serious questions would remain’ since a ‘lawful war is not necessarily a just, prudent or humanitarian war’. 3.2.2. The Meaning of Strategy The impact and significance of this intervention are ultimately rather difficult to gauge. What is important for the purposes of this argument is that the scholars involved in the intervention identified themselves as part of the critical tradition and explicitly reflected upon it in an article, attempting to account for their intervention in what they called ‘strategic’ terms. This means that the example provides a very useful entry point into understanding the particular conception 35. Wolf Blitzer, ‘Search for the “smoking gun”’, (visited 1 August 2011). 36. There are numerous accounts of this legal background, but for an accessible introduction see Christine Gray International Law and the Use of Force (Oxford University Press, 2008) at 193-252. Of course, the position on self-defence was not one directly argued by the US government.

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of ‘strategy’ underpinning such interventions. The piece – ‘We are Teachers of International Law’37 – set out to give an account of whether the techniques of critical legal scholarship would ‘preclude strategic intervention in the effort to stop a war’.38 As should be evident at this point, the way in which strategy is understood by these authors differs markedly from the perspective outlined in this article, as well as from how it has been historically theorised. In the piece strategy is not generally defined directly, instead it is invoked against various opposing terms. The piece initially operates by counterposing strategy to ethics, arguing that the former is differentiated from the latter, by the fact that it is ‘prudential’.39 Yet, as has been argued above, ‘prudence’ can have many different temporal and structural dimensions. What is important about the understanding of strategy in the article is that ‘prudential’ is understood in a very specific way. One can see how prudence is understood through examining the other contexts in which the term ‘strategy’ is deployed. The second counterposition that takes place is between strategy and criticism – with criticism ‘giving way’ to ‘strategizing’, as mobilisations against the war deepened. What this would seem to indicate is that strategy responds to more immediate circumstances and arguments and so becomes more urgent when people are ‘out on the streets’, whilst criticism remains at a distance, indicating a detachment from everyday politics. This is reinforced by the authors describing the intervention as a ‘temporary strategic embrace of the doctrinal’.40 Perhaps the most telling remark is that the ‘strategic reason’ for the intervention was ‘that it might somehow contribute to efforts to stop the war’.41 In other words, the intervention was couched in the language of liberal legalism because it was aimed at winning the argument on its own terms, since this was the most likely method of success. A corollary of this was that ‘criticism’ would have to be discarded.42 ‘Prudence’ in this account, then, is the prudence of the short term, conjunctural intervention. ‘Strategy’ meant using those tools which would most effectively win the argument about the Iraq war and help stop it from taking place. The use of the term ‘strategy’ here then is not that which has informed traditions of political and military theory, it is precisely the opposite; a strategic intervention is seen as a short term, conjunctural intervention that aims to win the argument on its own terms, without considering how to change the terms of the argument. In other words it is a tactical intervention. 37. Matthew Craven, Susan Marks, Gerry Simpson and Ralph Wilde, ‘We Are Teachers of International Law’, 17 Leiden Journal of International Law (2004) 363-374. 38. Ibid., at 363. 39. Ibid. 40. Ibid., at 366 (emphasis added). 41. Ibid., at 367. 42. Ibid., at 364.

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3.2.3. You Say Strategy, I say Tactics, Let’s Call the Whole Thing Off This issue is not merely semantic. Although there is certainly a problem of ‘definition’, the real problem is with the consequences that this choice of terminology has for political action. Here there are three main problems. The first is that an intervention that is successful in tactical terms may nonetheless be problematic in strategic terms. The second is that in the absence of an overarching strategic vision, there are no criteria for deciding when one should use the language of liberal legalism and when one should not. The third and final problem is that these two facts together mean that rather than a ‘strategic’ adoption of liberal legalism, the vision so outlined is in fact a wholesale capitulation to it. As is seen above, the understanding of strategy that informs the critical interventions is composed of two moves. The first is to define strategy as ‘prudential’, the second is to define ‘prudential’ as meaning able to intervene successfully in short term, conjunctural moments. The profound problem with this position is that in collapsing prudence into the short term, it forecloses the possibility that long term, structural objectives are also practical matters that might also form part of a prudential calculation. In so doing, it fails to note the fact that a victory in the immediate, short term context might ultimately prove disadvantageous for a longer term goal. As Clausewitz noted: [I]f we adopt the idea that the capture of certain geographical points, the occupation of undefended provinces is something in itself we are likely to regard it as an advantage which can be picked up in passing. If we look at it so, and not as a link in a chain of events, we do not question whether this possession may not later lead to greater disadvantages. How often we find this mistake recurring in the history of war!43

This warning is of great relevance to the type of ‘strategic’ interventions advocated by the authors. There are serious perils involved in making any intervention in liberal-legalist terms for critical scholars. The first is that – as per their own analysis – liberal legalism is not a neutral ground, but one which is likely to favour certain claims and positions. Consequently, it will be incredibly difficult to win the argument. Moreover, even if the argument is won, the victory is likely to be a very particular one – inasmuch as it will foreclose any wider consideration of the structural or systemic causes of any particular ‘violation’ of the law. All of these issues are to some degree considered by the authors.44 However, given the way in which ‘strategy’ is understood, the effects of these issues are generally confined to the immediate, conjunctural context. As such, the emphasis was placed upon the way that the language of liberal

43. Clausewitz, War, Politics and Power, supra note 9, at 175. 44. Craven et al., ‘We Are Teachers of International Law’ supra note 37, at 369.

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legalism blocked effective action and criticism of the war.45 Much less consideration is placed on the way in which advancing such argument impacts upon the long term effectiveness of achieving the strategic goals outlined above. Here, the problems become even more widespread. Choosing to couch the intervention in liberal legal terms ultimately reinforces the structure of liberal legalism, rendering it more difficult to transcend these arguments.46 In the best case scenario that such an intervention is victorious, this victory would precisely seem to underscore the liberal position on international law. Given that international law is in fact bound up with processes of exploitation and domination on a global scale, such a victory contributes to the legitimation of this system, making it very difficult to argue against its logic. This process takes place in three ways. Firstly, by intervening in the debate on its own terms, critical scholars reinforce those very terms, as their political goals are incorporated into it.47 It can then be argued the law is in fact neutral, because it is able to encompass such a wide variety of viewpoints. Secondly, in discarding their critical tools in order to make a public intervention, these scholars abandon their structural critique at the very moment when they should hold to it most strongly. That is to say, that at the point where there is actually a space to publicise their position, they choose instead to cleave to liberal legalism. Thus, even if, in the ‘purely academic’ context, they continue to adhere to a ‘critical’ position, in public political terms, they advocate liberal legalism. Finally, from a purely ‘personal’ standpoint, in advocating such a position, they undercut their ability to articulate a critique in the future, precisely because they will be contradicting a position that they have already taken. The second point becomes increasingly problematic absent a guide for when it is that liberal legalism should be used and when it should not. Although the ‘embrace’ of liberal legalism is always described as ‘temporary’ or ‘strategic’, there is actually very little discussion about the specific conditions in which it is prudent to adopt the language of liberal legalism. It is simply noted at various points that this will be determined by the ‘context’.48 As is often the case, the term ‘context’ is invoked49 without specifying precisely which contexts are those 45. Ibid., at 368-369. 46. See Knox, ‘Review Essay: The Degradation of the International Legal Order’, supra note 7 for a fuller account of these problems. 47. As Žižek observes there is always a danger that a particular demand can be incorporated into the system which can ‘with sneering hypocritical satisfaction, make the reply ‘You wanted this? Here, have it!’’ in Slavoj Žižek, ‘Postface’, in Georg Lukács, A Defence of History and Class Consciousness: Tailism and the Dialectic (Verso: London, 2006) 151-182 at 164. 48. Craven et al., ‘We Are Teachers of International Law’ supra note 37, at 367 and 374. 49. As T.J. Clark argues with reference to art history, the term ‘background’ (which he uses as a synonym for context here) is frequently invoked to side step the problem of giving a concrete account of mediation. Against this Clark argues it is necessary to specify the ‘concrete

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that would necessitate intervening in liberal legal terms. Traditionally, such a context would be provided by a strategic understanding. That is to say, that the specific tactics to be undertaken in a given conjunctural engagement would be understood by reference to the larger structural aim. But here, there are simply no considerations of this. It seems likely therefore, that again context is understood in purely tactical terms. Martti Koskenniemi can be seen as representative in this respect, when he argued: What works as a professional argument depends on the circumstances. I like to think of the choice lawyers are faced with as being not one of method (in the sense of external, determinate guidelines about legal certainty) but of language or, perhaps better, of style. The various styles – including the styles of ‘academic theory’ and ‘professional practice’ – are neither derived from nor stand in determinate hierarchical relationships to each other. The final arbiter of what works is nothing other than the context (academic or professional) in which one argues.50

On this reading, the ‘context’ in which prudence operates seems to the immediate circumstances in which an intervention takes place. This would be consistent with the idea, expressed by the authors, that the ‘strategic’ context for adopting liberal legalism was that the debate was conducted in these terms. But the problem with this understanding is surely evident. As critical scholars have shown time and time again, the contemporary world is one that is deeply saturated with, and partly constituted by, juridical relations.51 Accordingly, there are really very few contexts (indeed perhaps none) in which political debate is not conducted in juridical terms. A brief perusal of world events would bear this out.52 The logical conclusion of this would seem to be that in terms of abstract, immediate effectiveness, the ‘context’ of public debate will almost always call for an intervention that is couched in liberal legalist terms. This raises a final vital question about what exactly distinguishes critical scholars from liberal scholars. If the above analysis holds true, then the ‘strategic’ interventions of critical scholars in legal and political debates will almost always take the form of arguing these debates in their own terms, and simply picking the ‘left’ side. Thus, whilst their academic and theoretical writings and interventions may (or may not) retain the basic critical tools, the public political interventions will basically be ‘liberal’. The question then becomes, in what sense can we really characterise such interventions (and indeed such scholars) as ‘critical’? The practical consequence transactions’ that are hidden behind invocations of this sort. See T.J. Clark, Image of the People: Gustave Courbet and the 1848 Revolution (Thames and Hudson: London, 1973). 50. Martti Koskenniemi, ‘Letter to the Editors of the Symposium’, 93 American Journal of International Law (1999) 351-361 at 356. 51. Marks, ‘State-Centrism’ supra note 22, at 347. 52. See the various articles cited supra note 6.

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of understanding ‘strategy’ in essentially tactical terms seems to mean always struggling within the coordinates of the existing order. Given the exclusion of strategic concerns as they have been traditionally understood, there is no practical account for how these coordinates will ever be transcended (or how the debate will be reconfigured). As such, we have a group of people struggling within liberalism, on liberal terms, who may or may not also have some ‘critical’ understandings which are never actualised in public interventions. We might ask then, apart from ‘good intentions’ (although liberals presumably have these as well) what differentiates these scholars from liberals? Because of course liberals too can sincerely believe in political causes that are ‘of the left’. It seems therefore, that just as – in practical terms – strategic essentialism collapses into essentialism, so too does ‘strategic’ liberal legalism collapse into plain old liberal legalism.53

3.3. A Tale of Two Letters, or Taking Theory Seriously This tactical understanding of strategy, and its attendant consequences, is deeply bound up with a particular understanding of the relationship between theory and practice. This is perhaps best encapsulated by Spivak’s comment that ‘[y]ou pick up the universal that will give you the power to fight against the other side, and what you are throwing away by doing that is your theoretical purity’.54 In this understanding, theory figures as an ‘abstract’ non-practical concern that needs to be discarded in order to make political interventions. Hence, in the above account, theoretical concerns about the structure of legal argument need to be jettisoned in order to intervene in real life political argument. The problem with such a position is that it operates with an overly rigid and ultimately untenable distinction between theory and practice. An obvious criticism is that if one’s theoretical position is such that it is entirely useless in providing an account of how to intervene in practical debates, perhaps what is needed is a new theory. One could, however, be even more radical in this criticism, and 53. Again, whilst the scholars around the ‘We are Teachers of International Law’ letter are taken as exemplary, the trend of critical scholars functionally reproducing liberalism in their arguments can be found across the board. For instance, Paavo Kotiaho has forcefully argued that Martti Koskenniemi’s (political) call for a culture of formalism reproduces this same pattern: ‘[B]y opting for the call for a ‘culture of formalism’ as the practice of freedom, which is still embedded in the traditional structure of international legal argumentation, Koskenniemi has opted to stay embedded within the same liberal theory of politics, which was the source of his immanent critique ... [B]y opting to enthrone international lawyers, practicing within the status quo of the traditional framework of international legal argument, isn’t Koskenniemi in fact calling for the perpetuation of the system, which remains his focus of attack? And even worse, isn’t he doing this at the expense of any movement seeking to challenge the status quo?’ Paavo Kotiaho, ‘A Return to Koskenniemi; or the Disconcerting Co-optation of Rupture’, forthcoming in the German Law Journal . 54. Spivak, ‘Post Colonial Critic’, supra note 2 at 12.

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point out that there cannot be any practice without ‘theory’. Gramsci argues that ‘everyone is a philosopher’ because every action they take presupposes ‘a specific conception of the world’,55 the only questions then become the degree to which this ‘philosophy’ is explicit, and how coherent it is. What this points to is the fact that every practical action is necessarily rooted in an understanding of the world, and the place of the action within it. Thus, it is not the case that when one makes an intervention one is ‘throwing away’ one’s theoretical purity, but rather that there must be some other theoretical conception that is underlying one’s action. This other conception may in fact contradict the stated ‘theoretical’ position that is being ‘thrown away’. The importance of this is that it undermines somewhat the claim that ‘good intentions’ will be enough to count in differentiating critical scholarship from liberal legalism. More importantly, it points us to the fact that if theory is to be taken at all seriously, there must be a sense in which it is practically enacted. However, the collapsing of prudence into tactical considerations precisely denies this. The rigid distinction between theory and practice is both a cause and a consequence of the failure to specify the distinction between strategy and tactics. An important part of any understanding of strategy, therefore, involves working out how to enact the theoretical position one claims to hold to in practical and political action. At a basic level, what might a more strategic intervention look like? China Miéville quotes David Kennedy to the effect that an alternative intervention might involve saying ‘international law doesn’t know what it’s doing here folks’.56 Such an approach does seem to take more seriously the strategic dimension of critical scholarship, but how does this actually look in practice? A useful example of an alternative approach can be seen in comparing yet more letters to The Guardian, this time in reaction to Operation Cast Lead: Israel’s highly controversial intervention in Gaza. The first letter57 – signed by several critical legal scholars – is analogous to ‘We are Teachers of International Law’. Couched in liberal legal language, it talks in very abstract terms about possible violations of international humanitarian law in the conflict, ultimately avoiding any broader political questions, such as that of taking sides.58 55. Gramsci, Selections, supra note 14 at 323. Gramsci’s position is not one exclusive to the Marxist tradition, there are echoes of it in, for instance, Dworkin’s observation that jurisprudence (that is to say the theory of law) ‘is the general part of adjudication, silent prologue to any decision at law’ (that is to say the practice of law), in Ronald Dworkin, Law’s Empire (Hart Publishing: Oxford, 2006) at 90. 56. Miéville, Between Equal Rights, supra note 25 at 300. 57. ‘UK must act to stop violations in Gaza’, The Guardian, 14 January 2009. . 58. The letter states, for instance ‘As international lawyers, we remind the UK government that

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In contrast to this is the rather trenchant letter drafted by Petter Hallward and Slavoj Žižek.59 This letter, which was also signed by several of the signatories of the first letter, did take sides, arguing that ‘[t]here is nothing symmetrical about this war in terms of principles, tactics or consequences. Israel is responsible for launching and intensifying it, and for ending the most recent lull in hostilities’. As a consequence of this ‘[i]f we believe in the principle of democratic selfdetermination, if we affirm the right to resist military aggression and colonial occupation, then we are obliged to take sides ... against Israel, and with the people of Gaza and the West Bank.’ International law did not feature heavily in this letter, there were allusions to it via references to the 1967 borders and a reference to the ‘criminal use of force’, but ultimately it seems to figure much more as a rhetorical device, than as one around which the intervention was organised. The obvious point is that the second letter – in not organising the intervention around international law, indeed only invoking it briefly and obliquely – is able to avoid the perils of reinforcing liberal legalism. Equally, it remains an intervention that is specifically targeted at a debate, putting forward a coherent position. The problem here though, is that precisely because of this, one is left wondering what the precise role of the legal scholar would be here? Is it simply to counsel against the adoption of the tropes of liberal legalism in any intervention? Is it to adopt David Kennedy’s route, or to use the event to point international law’s complicity in the problems so identified? It is as a result of this very real dilemma that many scholars turn to a purely tactical understanding of legal struggle. Whilst ‘We are Teachers’ may be the most sophisticated articulation of this position, it is one that resurfaces again and again in critical scholarship. Many lengthier works follow a similar pattern. For the vast majority of the piece there will be a historical and/or theoretical examination of the ways in which international law has been deeply complicit with oppression, exploitation and domination. Yet in the final part, there will be a paragraph to the effect that – notwithstanding the previous critique – it is impossible to ‘give up’ on international law. This does not usually make explicit reference to the previous theoretical critique, but rather argues that since international law is the it has a duty under international law to exert its influence to stop violations of international humanitarian law in the current conflict between Israel and Hamas. A fundamental principle of international humanitarian law is that the parties to a conflict must distinguish between civilians and those who participate directly in hostilities. Attacks deliberately aimed at the civilian population and civilian objects, by any means, are prohibited, as are attacks that do not discriminate between civilians and combatants, or which are likely to cause harm to civilians that is excessive when compared to the military advantage sought by the attack.’ There is very little consideration as to whether either side may bear more political responsibility for the problems of the conflict, or of the broader economic and political logics at play. 59. ‘Growing outrage at the killings in Gaza’, The Guardian, 16 January 2009. .

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language of international relations (and debate about these relations) prudence demands we continue to use it. Antony Anghie puts it well when he notes: At the very least, I believe that the Third World cannot abandon international law because law now plays such a vital role in the public realm and in the interpretation of virtually all international events. It is through the vocabulary of international law, concepts of ‘self-defence’, ‘human rights’ and ‘humanitarian intervention’ that issues of cause, responsibility and fault are being discussed and analysed, and interpretations of these doctrines which reproduce imperial relations must be contested.60

This particular move, although not necessarily couched in terms of strategy and tactics, nonetheless reproduces the basic structure criticised above. In it, prudence is once again confined to the short term, conjunctural sense. Yet one cannot simply brush aside such a line of argument, especially when expressed in these terms. If the alternative to the ‘strategic’ use of liberal legalism is ‘abandoning’ international law (or some other form of legal nihilism) then liberal legalism would seem to be only real option for those actually engaging in political struggle. The problem is that this counterposition of liberal legalism as against legal nihilism ultimately reproduces the rigid theory/practice divide outlined above, and essentially insists that strategy and tactics exist to the rigid exclusion of one and other. The particular form that this separation takes – associating the traditional meaning of strategy with theory and ‘principle’, and tactics with practice and ‘prudence’ – means that strategic concerns simply disappear from the picture.61 In contrast to this would be a position that understood that ‘theory’ is never simply an abstract consideration, but one which is always active in practice, 60. Anghie, Imperialism, supra note 22 at 318. Bhupinder Chimni argues similarly: ‘On the other hand, IIs [international institutions] have undergone a quantitative and qualitative transformation in the past two decades. The essence of these changes has been the use of IIs to realize the interests of a TCC [transnational capitalist class]. IIs have come to play a central, though retrograde, role so far as third world states and peoples are concerned. Indeed a nascent global state has emerged under the influence of the TCC and powerful Northern states. Under these circumstances, to suggest that renewalists are condemned to the role of Sisyphus is perhaps to disarm third world peoples against the most significant contemporary embodiments of imperialist policies and strategies.’ ‘International Institutions Today: An Imperial Global State in the Making’, 15 European Journal of International Law (2004) 1-37 at 30. A similar argument can be made with respect to the articles cited supra note 23, which – in arguing for actors to alter their bargaining power through altering legal rules – presuppose the continued existence in which the bargaining takes place. 61. Clausewitz notes that there is quite a powerful tendency to ignore strategic concerns entirely: ‘It may sound strange, but for all who know war in this respect, it a fact beyond doubt, that much more strength of will is required to make an important decision in strategy than in tactics. In the latter we are carried away by the moment: a commander feels himself borne along by a powerful current, against which he dare not contend without the most destructive consequences.’ Clausewitz, War, Politics and Power, supra note 9, at 173.

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whether implicitly or explicitly. From this would also flow the idea that long term, structural considerations are not to be understood in opposition to ‘prudence’ but rather as specific structural and temporal articulations of prudence. On this reading, the opposition would not be between ‘using the law’ (as a liberal) or ‘abandoning it’ (as a nihilist). Rather the question is on what terms is it possible to use the law without fatally undermining longer term, structural considerations.62 This is the understanding that has driven work from within the Marxist tradition to which this article now turns.

4. Reform or Revolution? Both! It has often been observed that there is very little work in the Marxist tradition that has systematically sought to understand law.63 Although there is some truth to this, there is at the same time a small but rich literature on the topic. This is the case both in general jurisprudential terms,64 and more specifically – particularly over the past decade – in terms of international law.65 Yet even if we exclude those writings that explicitly address law, the question of the relationship between law and revolutionary politics has been central to how Marxists have thought about political action. The rubric under which this question has played out is usually that of the debates around reform and revolution. The central problem of these debates – to 62. China Miéville has argued that in fact the opposition between (neo-conservative) legal nihilism and liberal legalism is in fact a form of symbiosis in which ‘[t]he liberal mainstream has attacked the nihilist neocons for gravely injuring international law, and thus stressed neoconservative power; and those nihilists in turn have complimented international law (and by implication its advocates) by denouncing it as a mortal threat.’ Against this, he argues that neo-conservatives are not simply nihilists, but have a nuanced approach to law, and that liberal legalism is intensely bound up with imperialism. The point is that the false opposition between ‘liberalism’ and ‘nihilism’ is an ideological symptom of the system itself. See China Miéville, ‘Multilateralism as Terror: International Law, Haiti and Imperialism’, 19 Finnish Yearbook of International Law (2008) 63-93 at 72. 63. See Bernard Edelman, Ownership of the Image: Elements for a Marxist Theory of Law (Routledge and Kegan Paul: London, 1979) at 21–26. 64. There are a few Marxist works dealing with ‘general jurisprudence’ and the list would include: Evgeny Pashukanis, Law and Marxism: A General Theory (Ink Links: London, 1978); Anthony Chase, Law and History (The New Press: New York, 1997); Karl Renner, The Institutions of Private Law and their Social Functions (Routledge Kegan & Paul: London, 1949) and Olufemi Taiwo, Legal Naturalism: A Marxist Theory of Law (Cornell University Press, 1996). 65. See, for example, Susan Marks (ed.), International Law on the Left: Revisiting Marxist Legacies (Cambridge University Press, 2008); Miéville, Between Equal Rights, supra note 25; Bill Bowring, The Degradation of the International Legal Order? The Rehabilitation of Law and the Possibility of Politics (Routledge-Cavendish: London, 2008); Rasulov, ‘The Nameless Rapture of the Struggle’, supra note 7; Özsu, ‘The Question of Form’, supra note 7; Sonja Buckel and Andreas Fischer-Lescano, ‘Gramsci Reconsidered: Hegemony in Global Law’, 22 Leiden Journal of International Law (2009) 437-454.

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what degree should revolutionary forces engage in action that is within the coordinates of the existing order – is one that obviously has a great deal of importance to this argument. Indeed, as argued above, the distinction between strategy and tactics is one that is closely related to that of ‘reform’ and ‘revolution’. However, as will be argued below, it is not simply that strategy is a synonym for revolution and tactics for reform: rather it is the case that the Marxist tradition has used the distinction between strategy and tactics to navigate the problem of reform and revolution in a nuanced way. It should be noted that whilst these authors all understand themselves as working from within the materialist tradition, the insights they provide can also inform the ‘idealist’ strategy outlined above.

4.1. Work, Wages and Revolution: Marx’s Account of the Working Day Marx’s oeuvre is replete with considerations of the role that law could play in revolutionary politics. We can see this in his somewhat fragmented considerations of what the dictatorship of the proletariat might look like66 and in the various programmatic statements that he proposed or adhered to.67 However, for the purposes of this argument, what is most fruitful is Marx’s analysis of the role of law in struggles around wages and the length of the working day. Marx understands the relationship between capital and labour to be central to the capitalist system. In basic terms, the capitalist is able to exploit his labourers because the value of the commodities that they produce is more than that of the value of their labour power. The capitalist pays the worker a wage that is less than the value of the commodity he goes onto sell and the difference between these two figures is surplus value. Assuming the fixed value of a given commodity (which is determined at a social level), there are two ways in which the rate of surplus value might be increased: firstly, wages can be reduced and secondly workers can be made to produce more in a working day (either by making them work longer, or work harder within a given day). But this applies conversely too, and the balance of surplus value can be tipped in favour of the working class by increasing their wages, or limiting the working day. Thus, the questions of wages and the working day become objects of great contention under capitalism. These struggles form the basic fabric of the class struggle in its most spontaneous and ‘elementary’ sense in capitalist society. These struggles are also always articulated in some legal framework: be it the employment 66. See Karl Marx, ‘The Critique of the Gotha Programme’, in Robert Tucker (ed.), The Marx-Engels Reader (W.W. Norton: New York, 1978) 525-541 and Karl Marx, ‘The Civil War in France’, in Robert Tucker (ed.), The Marx-Engels Reader (W.W. Norton: New York, 1978) 618-652. 67. The most obvious example here would be (written with Engels) the ‘Manifesto of the Communist Party’, in Robert Tucker (ed.), The Marx-Engels Reader (W.W. Norton: New York, 1978) 469-501, especially at 490-491.

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contract or through direct legislation. The question that Marx had was what to make of the significance of such struggles. In Value, Price and Profit he argued that these struggles would have to be treated in a highly cautionary way, since they necessarily presupposed the existence of the capitalist system, and simply involved relative distributional changes: [T]he working class ought not to exaggerate to themselves the ultimate working of these everyday struggles. They ought not to forget that they are fighting with effects, but not with the causes of those effects; that they are retarding the downward movement, but not changing its direction; that they are applying palliatives, not curing the malady. They ought, therefore, not to be exclusively absorbed in these unavoidable guerrilla fights incessantly springing up from the never ceasing encroachments of capital or changes of the market. They ought to understand that, with all the miseries it imposes upon them, the present system simultaneously engenders the material conditions and the social forms necessary for an economical reconstruction of society. Instead of the conservative motto: ‘A fair day’s wage for a fair day’s work!’ they ought to inscribe on their banner the revolutionary watchword: ‘Abolition of the wages system!’68

Marx’s critique dovetails precisely with that outlined above. Fixation on the day-to-day struggles, on their own terms, ends up precluding the transcendence of the system that causes the problems in the first place. Against this, a demand would have to be raised which would call for the destruction of the system. However, what is interesting here is that Marx does not rigidly counterpose the ‘unavoidable guerrilla fights’ to the ‘revolutionary watchword’; rather he seems to note that both need to be part of the struggle. Indeed, he argues earlier that ‘[b]y cowardly giving way in their everyday conflict with capital, they [the working class] would certainly disqualify themselves for the initiating of any larger movement’.69 However, in this work he has not quite yet managed to say how these might be articulated together. It is in this respect that Marx’s seminal discussion of the regulation of the length of the working day in Capital becomes relevant. Here Marx is much more positive about the potential of the everyday struggle, arguing: For ‘protection’ against ‘the serpent of their agonies’, the labourers must put their heads together, and, as a class, compel the passing of a law, an all-powerful social barrier that shall prevent the very workers from selling, by voluntary contract with capital, themselves and their families into slavery and death. In place of the pompous catalogue of the ‘inalienable rights of man’ comes the modest Magna Charta

68. Karl Marx, Wage Labour and Capital and Value Price and Profit (International Publishers: New York, 2006) at 61. 69. Ibid.

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of a legally limited working-day, which shall make clear ‘when the time which the worker sells is ended, and when his own begins’. Quantum mutatus ab ilo!70

What is vitally important here is that Marx argues the only way that this law was able to be passed was because workers moved away from their isolated individualism. The struggle for the limitation of the working day meant that the working class had to come together as a class, and as such recognise their common interests, as well as their opposition to the capitalist class, it also required a high degree of practical organisation and coordination. In other words, this struggle was vital to the constitution of the working class as a political subject. In Marx’s vision, such a political subject – the working class organised as a class-foritself – is the only vehicle that would be capable of overthrowing capitalist social relations. In this way, a tactical intervention into the conjuncture – the struggle for the limitation of the working day – is framed and directed by the strategic goal of overthrowing capitalism. Rather than erecting an absolute opposition between liberalism and nihilism or reform and revolution, Marx articulates a truly strategic position.

4.2. The Goal is Everything: Luxemburg’s Critique of Reformism The kernel of this position was taken up and developed in Rosa Luxemburg’s polemic against Eduard Bernstein: Reform or Revolution. For a pamphlet that is so strongly associated with advocating revolution as against reform it is interesting that Luxemburg opens with an explicit denial of this very opposition: At first view the title of this work may be found surprising. Can the social democracy be against reforms? Can we counterpose the social revolution, the transformation of the existing order, our final goal, to social reforms? Certainly not. The daily struggle for reforms, for the amelioration of the condition of the workers within the framework of the existing social order, and for democratic institutions, offers to the social democracy an indissoluble tie. The struggle for reforms is its means; the social revolution, its aim.71

Luxemburg’s point then is that it makes no sense to make a rigid distinction between reform and revolution. This is because the only way in which a movement in favour of the overthrow of capitalism could be built up and gain the strength to do so is through the struggle for reforms. However, Luxemburg is at pains to suggest that nevertheless there is a distinction between (what was then) the social democratic movement and ‘bourgeois radicalism’ – and this was the question of strategy. Luxemburg argues that the only way in which the social democratic 70. Karl Marx, Capital (Oxford World Classics, 1999) at 181-182. 71. Rosa Luxemburg, The Essential Rosa Luxemburg: Reform or Revolution and The Mass Strike (Haymarket Books: Chicago, 2008) at 41.

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movement is not simply one that engages in ‘a vain effort to repair the capitalist order’ is in its strategic goal of overthrowing this capitalist order.72 Whilst there is no rigid distinction between reform and revolution; in order for the social democratic movement to not simply collapse into ‘bourgeois radicalism’, it was necessary that the tactical struggles for reform be pursued not in their own sake, but precisely in order to build up this movement. Thus, the particular tactics that are deployed, and the way in which they will be deployed, must necessarily be shaped by this strategic goal. As David Harvey puts it ‘the difference between a reformist and a revolutionary is not necessarily that you do radical things all the time, but it is that at a given moment, you may all do the same thing, i.e. demand living wage, but you do it with a different objective, and that is as a long-term transition.’73

4.3. Towards Revolutionary Realpolitik: Lukács’ Leninism The most comprehensive formulation of this line of thinking can be found in the work of Georg Lukács. Lukács argues that ‘the position and significance of tactics in the field of political action differ greatly in accordance with the structure and historic-philosophical role peculiar to those parties and classes’.74 For Lukács, there is a fundamental difference between revolutionary classes and other classes, and this difference lies in their ultimate objective. Essentially, this would correspond to the distinction between critical and liberal positions; the latter’s ‘ultimate objective’ is one that is a ‘moment within the given social reality’, whereas in the case of the former this objective ‘transcends it’.75 In the case of the liberal approach, the existing (legal) order is a ‘given principle which ... determines the scope of any action’, in the case of the critical or radical approach the given order is simply something to be taken into account for reasons of expediency. We can understand this in terms of strategy and tactics. Lukács’ argument means that liberals do not have to worry about strategic concerns in the same way that critics do. Instead, their concerns are purely tactical, since they presuppose the existing order in all of their actions. In contradiction to this, the only thing that distinguishes the critical position is precisely that its ultimate objective is to transcend the existing order. In order to remain critical, it is necessary that this ultimate objective is immanent in everyday acts. As such tactical interventions must be shaped by this strategic orientation: This contrast helps greatly to elucidate the tactics of the revolutionary classes and parties: their tactics are not determined by short-term immediately attainable 72. Ibid., at 42. 73. ‘A Conversation with David Harvey’, 5 Logos: A Journal of Modern Society and Culture (2006) . 74. Georg Lukács, Political Writings 1919-1929 (New Left Books: London, 1972) at 3. 75. Ibid., at 3.

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advantages; indeed, they must sometimes reject such advantages as endangering what is truly important, the ultimate objective. But since the ultimate objective has been categorized, not as Utopia, but as reality which has to be achieved, positing it above and beyond the immediate advantage does not mean abstracting from reality or attempting to impose certain ideals on reality, but rather it entails the knowledge and transformation into action of those forces already at work within social reality – those forces, that is, which are directed towards the realization of the ultimate objective. Without this knowledge, the tactics of every revolutionary class or party will vacillate aimlessly between a Realpolitik devoid of ideals and an ideology without real content.76

In this way Lukács diagnoses acutely some of the problems outlined above. In conflating strategy and tactics to the exclusion of the former, critical scholars have oscillated between a liberal realpolitik, and a structural critique which serves as a legitimating factor (of ‘good intentions’) but is ultimately without content. What he suggests is that the way forward is to understand the necessity to frame tactics in terms of strategy. This double articulation: understanding that strategic concerns are absolutely vital, and then they can only be expressed through tactical interventions, is what Lukács calls revolutionary realpolitik.77 At the very least, this will entail not adopting those methods of intervening in the conjuncture which – whilst successful on their own terms – undermine the ultimate objective. Aside from this merely negative relation, Lukács argues that every intervention in the concrete situation must be ‘related to a generally correct appreciation of the whole historical process.’78 Concretely, this would entail shifting the priority in a given intervention, not just to win on its own terms, but to use that struggle to advance the ultimate objective, through the construction of a movement, training its militants in struggle, connecting the party to the class etc.79 76. Ibid., at 4. 77. Georg Lukács, Lenin: A Study on the Unity of his Thought (New Left Books: London, 1970) at 72-88. 78. Ibid., at 83. 79. The fact that Lukács was writing about Lenin is not accidental here. Lenin was perhaps the finest expositor (and practitioner) of the understanding of strategy envisaged in this article. However, given the range and size of his corpus, it is beyond the scope of this article to discuss this in any detail. One seemingly innocuous example though, would be that of Lenin’s writing on the development of a newspaper. Whilst some might simply see a newspaper in terms of propagandising, Lenin argued it would serve as a ‘collective organiser’, since the ‘mere technical task of regularly supplying the newspaper with copy and of promoting regular distribution will necessitate a network of local agents of the united party, who will maintain constant contact with one another, know the general state of affairs, get accustomed to performing regularly their detailed functions in the All-Russian work, and test their strength in the organisation of various revolutionary actions. This network of agents will form the skeleton of ... [an organisation] that is sufficiently large to embrace the whole country; sufficiently broad and many-sided to effect a strict and detailed division of labour; sufficiently well tempered to be

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What is most interesting about Lukács from the perspective of this paper is that he explicitly attempted to understand how this might apply to law. Lukács’ starting point is his standard ‘ultimate objective’, that of the abolition of capitalism. He further argues that law is a ‘life-form’ created by capitalism.80 Consequently, as a strategic aim, law itself must be abolished, and this will frame the tactical use of law in any given situation. For Lukács, the central point is that the working class must learn to act without the life-forms of capitalism ‘inwardly influencing its actions’.81 The concrete manifestation of this is that the working class must avoid fetishising the law, instead seeing both state and law as ‘mere power factor[s]’82 whose importance is not derived from any moral or historical essence. By consequence, law should be granted no more ‘importance than any other external fact of life with which it is necessary to reckon when deciding upon any definite course of action.’83 This means that the breaking of law (or conspicuous illegality) should not be romanticised or accorded any special importance, since this law would have ‘preserved its authority ... in an inverted form’.84 For Lukács, the only way that this can proceed is when ‘[t]he question of legality or illegality reduces itself then for the Communist Party to a mere question of tactics, even to a question to be resolved on the spur of the moment’.85 In this way, the law is accorded no special respect, and its form and structure is not able to break up and block any social movement. It is simply an instrumental consideration to be subordinated to the political needs of the moment. This is the kernel of what I have elsewhere characterised as ‘principled opportunism’.86 Instantly though, a question arises – if Lukács is simply saying that we should use law tactically (even if for strategic reasons), in what sense can this be said to be different from the criticism of liberalism outlined above? Although the answer to this question is not explicit in Lukács’ own account, it stems logically from the fact that he is advocating a principled opportunism.

80. 81. 82. 83. 84. 85. 86.

able to conduct steadily its own work under any circumstances, at all “sudden turns”, and in face of all contingencies; sufficiently flexible to be able, on the one hand, to avoid an open battle against an overwhelming enemy, when the enemy has concentrated all his forces at one spot, and yet, on the other, to take advantage of his unwieldiness and to attack him when and where he least expects it.’ Vladimir Lenin, ‘Where to Begin’ in Collected Works: Volume 5 (Foreign Languages Publishing House: Moscow, 1961) 13-24 at 22-23. Georg Lukács, History and Class Consciousness: Studies in Marxist Dialectics (Merlin Press: London, 1971) at 264. Ibid. Ibid., at 263. Ibid. Ibid. See also Nathaniel Berman, ‘Legitimacy Through Defiance: From Goa to Iraq’, 23 Wisconsin International Law Journal (2005) 93-125. Ibid at 264. Knox, ‘Marxism, International Law and Political Strategy’, supra note 7, at 433-434.

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On the one hand, it is clear that Lukács is advocating an instrumental use of law, linking it to rather conjunctural considerations and this is the sense in which his position is opportunistic. However, he advocates doing this for principled reasons, that is to say, in order to undercut both the ideological and structural dimensions of law, so as to ultimately aim for its abolition. So in this sense, his advocacy of a tactical approach is substantive. This would mean that law should always be openly invoked instrumentally and openly subordinated to political considerations, with the particular legal arguments changed whenever the particular political needs change. These invocations are necessarily partisan, involving not the defence of a law or a right in general but in order to support the movement (and openly stated to be so).87 On this account, law should never be invoked as an independent consideration: an intervention should never be conducted directly in the name of legality. This is the way in which strategy shapes tactics, if the aim is to undermine liberal legalism, appealing directly to the hold it has over people and their debates is unacceptable. The full implications of such a position will be outlined below, but one very obvious conclusion is that the kind of intervention embodied in ‘We are Teachers of International Law’ is off the table.

5. Principled Opportunism Revisited Lukács’ particular take on these issues is not without its problems. First and foremost, he operates with a rather formalist and positivist notion of law: derived at least partially from his Weberian heritage.88 Consequently, his critique of law relies on an overly reified distinction between legal and illegal. This position ul87. Irina Ceric encapsulates this attitude perfectly in her account of ‘movement lawyers’ in the context the Toronto G20, where she argues: ‘We are not ‘civil libertarians’ but active supporters and/or members of social movements which come under attack by the state because they challenge – through various means, including extra-legal ones such as direct action and civil disobedience – the oppressive ways our society is organized.’ Irina Ceric, ‘Towards Praxis: Movement Lawyers and Scholars as Organic Intellectuals’, unpublished paper presented at Fourth Annual Conference of the Toronto Group for the Study of International, Transnational and Comparative Law, at 4-5. Although this may sound like an unimportant consideration, there are certainly a number of civil libertarians who will defend, for instance, the ‘right’ of far right groups to ‘free speech’, see for instance Philippa Strum, When the Nazis Came to Skokie: Freedom for Speech We Hate (University of Kansas Press, 1999). 88. He quotes Weber to the effect that ‘The modern capitalist concern is based inwardly above all on calculation. It requires for its survival a system of justice and an administration whose workings can be rationally calculated, at least in principle, according to fixed general laws, just as the probable performance of a machine can be calculated.’, characterising the judge as ‘more or less an automatic statute-dispensing machine in which you insert the files together with the necessary costs and dues at the top, whereupon he will eject the judgment together with the more or less cogent reasons for it at the bottom: that is to say, where the judge’s behaviour is on the whole predictable’, Lukács, History and Class Consciousness, supra note 80, at 96.

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timately depends on the kind of liberal reasoning criticised by critical scholars, given that such a rigid distinction relies on the idea that the law is determinate. As a consequence of this, Lukács (and his legal strategy) to some degree argues that one might simply decide to ‘use’ or not ‘use’ law. But this almost entirely ignores the fact that very frequently this will not be a choice. We are always and already enmeshed in legal relations, and as such it cannot be said that there is a simple ‘choice’. Here, it is useful to briefly turn to the work of perhaps the premier Marxist legal theorist, Evgeny Pashukanis. Here is not the place to recount his position in any detail,89 but Pashukanis’ analysis is able to deepen and enrich Lukács’ strategy. Very simply, Pashukanis argues that law – as a specific form of social regulation and dispute resolution – is generated by commodity exchange.90 His basic argument is that in commodity exchange both parties to the exchange must assume a position of formal, abstract equality – each must recognise the other as having the capacity to own and exchange commodities. Therefore when disputes arise within this relationship they must be solved in such a way as to preserve this equality.91 With the development and spread of capitalist social relations the commodity form comes to exercise a hegemonic influence over the entire social field. Its logic comes to structure various aspects of social life, and accordingly, this homology extends to the field of dispute resolution, with the legal form embedding and further extending commodification. The consequence of this argument is that under capitalism every sphere of social life becomes increasingly juridified. On this account, within capitalist social relations law is both pervasive and inevitable.92 Every action that we take is already enmeshed in juridical relations and will have inevitable juridical consequences, to simply deny this fact is neither here nor there. In this respect John Austin’s brutal observation on natural law theory is apposite: Suppose an act innocuous, or positively beneficial, be prohibited by the sovereign under the penalty of death; if I commit this act, I shall be tried and condemned, and if I object to the sentence, that it is contrary to the law of God, who has commanded that human lawgivers shall not prohibit acts which have no evil consequences, the Court of Justice will demonstrate the inconclusiveness of my reasoning by hanging me up, in pursuance of the law of which I have impugned the validity.93

89. There are innumerable accounts of Pashukanis’ basic approach, but for some introductions see Miéville, Between Equal Rights, supra note 25, at 75–105 and Knox, ‘Marxism, International Law and Political Strategy’, supra note 7, at 291–292. 90. Evgeny Pashukanis, ‘General Theory of Law and Marxism’, in Piers Beirne and Robert Sharlet (eds.), Pashukanis: Selected Writings (Academic Press, 1980) 37-131, especially at 40-90. 91. Miéville, ‘Between Equal Rights’, supra note 25 at 75. 92. Thanks to China Miéville for this formulation. 93. John Austin, The Province of Jurisprudence Determined (Cambridge University Press, 2001) at 158.

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Or to put it rather more crudely, if you don’t do the law, the law will do you.94 This slight reformulation of Lukács’ point is important, because the focus cannot be the distinction between ‘legality’ and ‘illegality’ but rather, on the way in which law and legal arguments are used.95 This adds an extra layer to the strategy of principled opportunism. Whereas in Lukács’ argument, the primary issue is law as an institutional phenomenon that one can choose to obey or not, in this version we need to carefully distinguish between law as an institutional phenomenon (or the terrain of juridical practices – courts, tribunals, lawsuits etc.), and the role of law in framing political mobilisations. This is because – simply put – law in its former guise is inevitable: whatever we do will have legal consequences and this cannot simply be ignored. The latter though is rather different, whilst legal argument may be especially persuasive within capitalist social relations, the point still stands that interventions should not be framed in terms of legality, because – here at least – there is a choice as to ‘using’ the law or not.96 Thus, this first aspect of principled opportunism still stands and the type of intervention typified by ‘We Are Teachers of International Law’ remains strategically problematic. What of the institutional dimension? As above, the strategic goal needs to frame these tactical interventions. Again, slightly reformulating Lukács, principled opportunism demands that the deployment of legal argument be openly subjected to political exigencies, with different arguments being deployed when94. Thanks to Sundhya Pahuja for this formulation. 95. Pashukanis’ position is ultimately very close to Lukács’ arguing as he does that ‘[F]or the petit bourgeois revolutionary the very denial of legality is turned into a kind of fetish, obedience to which supplants both the sober calculation of the forces and conditions of struggle and the ability to use and strengthen even the most inconsequential victories in preparing for the next assault. The revolutionary nature of Leninist tactics never degenerated into the fetishist denial of legality; this was never a revolutionary phrase. On the contrary, at given historical stages, he firmly appealed to use those “legal opportunities” which the enemy, who was merely broken but not fully defeated, was forced to provide. Lenin knew not only how mercilessly to expose tsarist, bourgeois etc. legality, but also how to use it, where it was necessary and when it was necessary.’ See ‘Lenin and the Problems of Law’, in Beirne and Sharlet (eds), Pashukanis: Selected Writings (Academic Press, 1980)133-164 at 138. 96. Susan Marks criticises China Miéville for overly reifying the distinction between the ‘inside’ and ‘outside’ of international law since ‘public opinion is not simply a response to or judge of international legal developments; it partly constitutes those developments. Miéville’s account gives very little sense of what might be called the public-cultural dimensions of international law, its mutually determining relationship with the media, and so on. The sharp line he draws between international law’s inside and its outside does not seem to do justice to his own characterization of international law as a part of political processes.’ Marks, ‘International Judicial Activism’, supra note 7, at 211. Her critique here is largely correct, but one must be equally careful not to go too far in the other direction, whilst public opinion clearly does have an influence on legal processes (and vice versa), the above analysis suggests the need to draw at least some distinction between the two. This is especially because public opinion can presumably affect legal outcomes even when that opinion is not directly mobilised through a rhetoric of legalism.

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ever necessary. As such, legal argument is being geared towards the strategic aim of building a movement to overthrow capitalism, rather than on its own terms. On the one hand, this will involve defensive struggles, where legal argument is deployed in order to defend political activists when the state seeks to attack them. To give an example in terms of the Iraq war then, international legal argument could be involved to defend activists against criminal charges for sabotaging military facilities.97 Equally – provided rhetorically this is characterised as being for instrumental reasons – one might pursue a legal claim in order to attempt to prevent an action, or ‘punish’ those involved with it. This could involve contesting the legality of certain state practices – particularly those which might be said to violate international human rights conventions – in order to publicly reveal these practices, and perhaps to constrain their future use (thus giving the movement a greater ability to organise). However, although such institutional uses of the law are aimed at something other than legal struggle for its own sake, they nonetheless remain ‘collusory’ in the sense that the Jacques Vergès defined it.98 By this, Vergès means a trial in which the accused respects the established public order, by arguing through its legal terminology. Whilst the ultimate aim may be to transcend law, and the particular practice geared towards it, in an immediate sense it remains within the logic of the law. Against this, Vergès proposed his ‘strategy of rupture’.99 Here, rather than simply using legal argument for the purpose of advancing revolutionary goals the legal situation is used to directly promote political goals. In this situation, the trial is used ‘less to acquit the accused than to illuminate his ideas’,100 the ruptural strategy uses the spectacle and publicity of law, to directly undermine the law by launching a political a political attack on the existing order. As he says of Dimitrov (the Communist tried by the Nazis for allegedly conspiring to start the Reichstag fire) ‘he attacked the facts, the witnesses, the investigation, but not to defend himself, to attack, to demolish’.101 97. Here, the argument would be that if a given act is unlawful in international legal terms, force may be used in order to prevent it under Section 3 of the Criminal Law Act 1967 (or any equivalent which allows force to be pursued in order to prevent illegal action from being carried out), obviously this was unsuccessful in the case of R v. Jones [2006] UKHL 16. However, it was rather more successful in the Northern Irish courts, where in R v. McCann and Others [2008] NICA 25, a similar defence was contemplated in relation to the Israeli assault on Lebanon. 98. Jacques Vergès, De La Stratégie Judiciaire (Les Éditions de Minuit: Paris, 1968) especially at 19 (all quotes from this work are translated by this author); see Martti Koskenniemi, ‘Between Impunity and Show Trials’, 6 Max Planck Yearbook of United Nations Law (2002) 1-35, at 26–32 and Emilios Christodoulidis, ‘Strategies of Rupture’, 20 Law and Critique (2009) 3-26 for overviews of Vergès’ work, although both suffer from not quite situating Vergès within the political tradition of radical Third World Marxism to which he then belonged. 99. Verges, De la Stratégie Judiciaire, supra note 98 at 19. 100. Ibid., at 104 101. Ibid., at 108

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The example that is frequently used is Vergès’ defence of Klaus Barbie. But perhaps most interesting is his account of the various Third World struggles that took place through the medium of international law. Take for example, the issue of torture during the Algerian war of independence; Vergès argues that the Algerian National Liberation Front did not raise the issue of torture in order to show that individual rights had been violated. Rather, the demand was raised to show that torture was an inseparable and inevitable consequence of French colonialism, aimed at destroying the Algerian people. In this way the attempt was made to use the publicity of the trial to mount a directly political critique of colonialism. Indeed, for Vergès the ultimate example of this was Fidel Castro’s trial of those involved in the Bay of Pigs, where the trial was merely a staging point for a political ‘lesson’: The dialogue with the prisoners had an arbiter: the people. It was to them that the revolution and counter-revolution spent four hours giving an account. This pure trial, stripped of all judicial forms, becomes a lesson in political science.102

Vergès’ vision might be said to be the purest instantiation of principled opportunism. It recognises the centrality and importance of law to capitalism, but seeks to use this centrality to directly undermine both capitalism and the law. In a very immediate sense, strategy is manifested through tactics. Unfortunately, Vergès is perhaps slightly too dismissive about the prospects of ‘collusory’ trials, arguing that ‘[m]ethods cannot be different from the goal’ and consequently reformists and revolutionaries ‘cannot defend themselves in the same way’.103 Vergès essentially comes very close to collapsing strategy and tactics here, misunderstanding that a collusory trial might itself further the agenda of overthrowing capitalism (and law) but in a more mediated sense.104 Equally, he does not recognise that an adherence ‘inside’ the trial to the existing order, could be matched by defiance ‘outside’ of it. This is likely because Vergès was writing in a revolutionary conjuncture, where the overthrow of the existing order was at least a real possibility.105 Given that 102. Ibid., at 119 103. Ibid., at 176 104. Thus, as Koskenniemi notes, the trial of Dimitrov was one in which ‘[t]he sole objective in the trial, as described by Verges, was to advance the cause of the proletariat. Everything else, including Dimitrov’s own fate – he refused to rely on an alibi of being away from Berlin on the night of the fire – was secondary.’. Koskenniemi, ‘Between Impunity and Show Trials’, supra note 98, at 27. But of course it may be that the best way to ‘advance the cause of the proletariat’ was to make sure that Dimitrov did not die in a fascist jail, which might require organising a defence of collusion. 105. Indeed, as Vergès explicitly argues: ‘From 1917 to now, and especially since the end of the Second World War and the victory of the Chinese Revolution, there has been a profound acceleration in ruptural trials. Two irreducible conceptions compete globally, each backed by men, countries and organisations. The accused, even in chains, present themselves in the name of another order and another world.’. Vergès, De La Stratégie Judiciaire, supra note 98,

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the very distinction between strategy and tactics is to some degree premised on non-revolutionary situations one can see how this could occur. It therefore seems wisest to understand principled opportunism as a basic tenet that law is not to be used on its own terms, but rather in furtherance of a strategic goal (which includes transcending liberal legalism). Within this, there is a continuum between the more defensive ‘collusory’ aspects, and the more offensive ‘ruptural’ aspects, the calculation of which to use will be a practical political one.106

6. Conclusion This article has attempted to redress a common problem in critical scholarship. This problem is the use of the term ‘strategy’. It began by reconstructing the distinction between strategy and tactics, arguing that strategy refers to the achievement of long term, structural (or organic) goals, whereas tactics refers to the achievement of short term, conjunctural ones. It was then argued that contemporary critical legal scholarship has tended to define ‘strategy’ in tactical terms and consequently paid little attention to long term, structural goals. In so doing, what was described as a ‘strategic’ adoption of liberal legalism was in fact an implicit capitulation to liberal legalism. The article went on to note that this exclusion of strategy was the linked to the idea that there in legal interventions there was a rigid choice between legal nihilism on the one hand and liberal legalism on the other. The article then turned to the Marxist tradition, to show that this was a false dilemma, since actualising strategic concerns does not necessarily mean jettisoning practical interventions in everyday legal struggles, but rather framing these struggles in at 183. It was precisely this fact that meant that the ruptural trial was no longer simply a method to spread ideas, but could also be successful in securing an acquittal. In respect of Dimitrov, Vergès writes that ‘he was no longer alone [as Socrates was] but a militant’, and that his release was secured in part ‘because the USSR had become a great power, such that in Western countries a solidarity movement arose ... to demand his release’ and henceforth a defendant can ‘put forward his ideas and, at the same time, thanks to the solidarity of his comrades, eventually force the court to retreat and release him’, ibid., at 105. 106. It should go without saying that the arguments put forwards here are in no sense entirely ‘novel’ and – to some degree at least – find themselves reflected in the practices of various activists and social movements. In this vein, Honor Brabazon’s work on the use of law by the Bolivian Landless Movement (MST) shows rather convincingly that their use of law precisely attempts to use it but not on its own terms. However, and it is at this point that the importance of theory reappears, she further argues that the activists have not fully worked out their relationship with the law, at times investing it with too much hope; ultimately perhaps – in the idiom of this article – they are not principled enough in their opportunism. See Honor Brabazon ‘The Law, the Land, and Capital: Agrarian Reform and Resistance in Contemporary Bolivia’, unpublished paper, presented at Towards a Radical International Law, London, 2011.

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terms of the overall strategic goal. It was argued that a position of ‘principled opportunism’ offered the best scope for intervening in conjunctural legal debates, without losing sight of the strategic goal. The question remains though, what type of political intervention can critical scholars make? Here, there are several points that can be made. Firstly, in a negative sense they can adopt the mode of intervention that David Kennedy suggests, pointing out that the liberal left’s embrace of legal argument is problematic. This could go further than Kennedy’s ‘international law doesn’t know what it’s doing here folks’, and rather point out that international law ‘knows exactly what it is doing’ and is an integral part of our exploitative and oppressive reality.107 Secondly, and in a linked vein, critical scholars can help shape the direction of campaigns of other radicals, who often cleave to a rhetoric of liberal legalism, seemingly by default. In this way, critical scholars can attempt to shape the debate, without reinforcing the very legalism which needs to be undermined. Once again, whilst principled opportunism understands the constitutive and pervasive role of law as a social form (and its unavoidability), reinforcing this through framing public political interventions in primarily legal terms is a problem. This brings us onto the more positive sense in which critical scholars may play a role. Whilst obviously not advocates, critical scholars do, to some degree, hold themselves out as ‘experts’ in international law and certainly any public interventions rely on claiming to possess this expertise. There are legal arguments or connections that they can provide to activists in their opportunist use of law. This may not be the primary role in which legal academics see themselves, but they may in fact be in a better position to do this than practitioners, freed as they are from some of the formal ethics of the professional lawyer.108

107. See Rasulov, The Nameless Rapture of Struggle, supra note 7 for a comprehensive account of some of the tasks that critical lawyers might undertake in mapping relationship between international law and contemporary global capitalism, especially at 282-294. 108. For example John Hendy QC, a Vice President of the Haldane Society of Socialist Lawyers, responded to the question ‘Is it important for lawyers to take a political stand?’ with the answer ‘Not in their professional work, no. I’ve always thought the notion of a left-wing barrister is an absurdity ... Of course it’s nice to represent people with whom you sympathise and that would be true whether they’re trade unionists or people who are disabled or subject to any form of injustice, it’s just a nice feeling. But I think the cab-rank rule is far more important. You don’t ask what someone’s politics or religion are before you accept a brief ’, Russell Fraser and Ripon Ray, ‘Interview with John Hendy’, 55 Socialist Lawyer (2010) 16-20, at 20. One can speculate on the reasons for this: whether it is to do with the immersion into the (liberal) ideology of the law, which is much stronger in legal practice, or to do with more mundane material reasons (one cannot afford to be political), or simply an issue of the internal disciplinary measures of the profession. But in any case, it suggests the possibility that scholars may occasionally be more able to be actively political in their legal ‘practice’.

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This ultimately leaves critical scholars in a much less important position than some accounts would imply. Moreover, it suggests that critical scholars need to focus more in the ways in which their ‘critique’ can reach a broader community of activists and political actors.109 But perhaps this is the price of taking theory seriously.

109. Rasulov argues that critical legal scholars must pay greater attention to how they write so as to produce ‘easily communicable, analytically accessible statements that will enable the forging of durable coalitions with the most practically active segments of the broader international political arena.’ Rasulov, ‘The Nameless Rapture of Struggle’, supra note 7, at 280. Similarly, Ceric argues that one of the key tasks of organic (legal) intellectuals is to translate critical (legal) theory in such a way that it can inform the practice of activists. Ceric, ‘Towards Praxis’, supra note 87, at 8.

The Religious and the Secular in European Human Rights Discourse Pamela Slotte* AbstrAct: In this article, I present a way to approach the notion of religion in human rights law that works on the assumption that the concepts ‘religious’ and ‘secular’ are interrelated. The approach is used to study the reasoning of the European Court of Human Rights. I offer an explanation of criticized trends in the Court’s case law regarding freedom of religion or belief that are not so easily understood unless we recognize that notions of religion are linked to specific albeit sometime unspoken normative ideas about society and political governance, and vice versa. When something is denoted ‘religion’, certain things are ascribed it and it is ascribed a place in society. A study of notions of religion will tell us how society is imagined and authority to be distributed in this society. Moreover, I maintain that the essential parameters for the Court’s reasoning have a history that precedes the founding of the Court itself. The historical background of prevalent reasoning is not always taken into account. However, in order for us to understand the logic of contemporary legal argumentation, to get at that which forms ‘silent’ parameters for how religion and society is envisioned, we should study the historical grammar of concepts. In this article, I present such an historical outlook and I conclude that what we find when reviewing the case law is indirect evidence of a view of faith that can be classified as an ‘enlightenment figure’ and which developed concurrently with a particular vision of the modern liberal ‘secular’ state. Keywords: Human rights, European Court of Human Rights, freedom of religion or belief, secularism, pluralism, democracy

1. Introduction The right to freedom of religion or belief involves the protection of something that tests the limits of the scientifically ‘verifiable’, but that nonetheless is considered imperative to human rights law because of the presumed importance to *

Senior Research Fellow, The Erik Castrén Institute of International Law and Human Rights, University of Helsinki.

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human life. It is commonly assumed that we are dealing with assertions that come across as bearers of truth, yet are not provable in the sense that they cannot be verified or falsified by reference to a supposed objective reality. In this respect, the phenomenon of religion cannot be approached from a scientific standpoint. Yet, while ‘informative’ value cannot be determined, the meaningfulness of faith to human beings is not considered bound up with this fact. The European Court of Human Rights in Strasbourg (hereafter, the Court) endeavors to abstain from taking decisions on the ‘legitimacy’ of particular religious beliefs. However, critics have noted that the Court’s approach seems to be that while we cannot define religion in advance, so to speak, we do know it when we see it, that is, when religion manifests itself. While critics note that it cannot be seriously assumed that everything that looks like a manifestation of religion actually is, to their minds the Court does identify ‘certain empirical occurrences as evidence of a manifestation of religious belief.’1 Further, the Court decides which manifestations are appropriate and which are inappropriate in the public sphere, as states may legitimately restrict some ‘religious manifestations’ on a number of specified grounds. Court practice suggests that there is a core or essence of religion, to which ‘manifestations’ are merely occasional add-ons. The critics are not really explicit as to what would be an alternative approach to religion. Rather they highlight certain features of the Court’s prevailing approach. In the discussion of what religious manifestations are protected, the Court, as we shall see in this article, puts considerable emphasis on (state) ‘neutrality’ and increasingly, on ‘secularism’. ‘The jurisprudence of the Court suggests that ‘neutrality’ provides a method which enables the court to remain unbiased when determining ‘scientifically’ what are the forms of religion or belief which are to be protected under Article 9.’2 According to the critics, neutrality is ‘a means of determining religion or belief under Article 9 from a scholarly perspective, informed by scientific modernity.’3 Moreover, for the Court, the critics argue, the religious is the non-secular. ‘The ECHR thus uses the concept of secularism to map out the parameters, with the religious being something within the public sphere which appears to differ from the recognisably secular.’4 The critics are objecting the fact that the ‘religious’ is determined by an a priori notion of the ‘secular’ which they feel goes unjustified by the Court. The ‘secular’ is accepted unconditionally. This article will pick up on these last observations. It will highlight the inevitable interdependence of the concepts ‘religious’ and 1.

2. 3. 4.

Malcolm Evans & Peter Petkoff, ‘A Separation of Convenience? The Concept of Neutrality in the Jurisprudence of the European Court of Human Rights’, 36 Religion, State & Society (2008) 205-223 at 206. The author wishes to thank the peer reviewers as well as Jarna Petman for valuable comments on the article. Ibid., at 207. Ibid. Ibid., at 209.

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‘secular’ and by doing so will offer a reading of the Court’s reasoning that makes sense of certain tacit features of the case law that otherwise risks to escape critical reflection. So this article has two main and interrelated purposes. In the first section, I discuss definitions of religion in law and elsewhere, and I present an alternative way to approach the notion of religion in law that works on the assumption that the concepts ‘religious’ and ‘secular’ are interrelated. In the following sections, then, I employ this approach in my study of the Court’s reasoning and how it negotiates the ‘religious’ and the ‘secular’. This makes it possible to reflect on and offer an explanation of trends in the Court’s case law that are not so easily understood unless we recognize that notions of religion are linked to specific albeit sometime unspoken normative ideas about society and political governance, and vice versa. For, in comparison to working with established legal definitions of religion and ascertaining whether and how they may be employed so as to enhance human rights protection, I argue that this approach in a more fundamental way manages to highlight how definitions of religion are actually expressive of exercise of power. To imagine religion is to imagine religion in society. When something is denoted ‘religion’ or ‘religious’, certain things are ascribed to it and it is ascribed a place in society. So, a study of notions of religion will tell us something about how society is imagined and authority to be distributed in it. Equally, normative assumptions about what society should be like limit what expressions of religion human rights law afford protection. Moreover, I suggest that the basic parameters for the Court’s reasoning have a history that precedes the founding of the Court itself. In order for us to understand the logic of contemporary legal argumentation, to get at that which forms ‘silent’, ‘self-evident’ parameters for how religion and society is envisioned, we have to study the so-called historical grammar of concepts. In this article, I seek to present such an historical outlook. I claim that the historical background of prevalent reasoning is not always taken into account, nor is the way a certain notion of faith is affected and bound with a particular view of society always addressed. The Court does not operate with an explicit definition of religion. However, by reviewing the case law, we will see indirect evidence of a view of faith that I, along with William Cavanaugh, want to identify as a kind of ‘enlightenment figure.’ It leads me to ask whether ‘a contingent power arrangement of the modern West [is mistaken] for a universal and timeless feature of human existence.’5

5.

William T. Cavanaugh, The Myth of Religious Violence: Secular Ideology and the Roots of Modern Conflict (Oxford University Press, 2009) at 17.

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2. On Defining ‘Religion’ Before proceeding to the in depth analysis of the Court’s reasoning, I wish to explore in some detail the initial remarks about legal definitions of religion and the alternative approach that I take up in this article. The Court relies on no explicit theory of religion. There is yet an idea of what religion is about and its role and meaning in people’s lives. And one criticism has been directed against the focus on intellectual coherence in European human rights law with regard to the right to freedom of religion or belief (as the right is commonly called) and the question of what characterizes those manifestations that can count on being protected. According to this criticism, religion is closely identified with a system of beliefs and ideas, while other essential features attributed to faith are neglected such as how faith affects the way people live as a whole.6 Intellectual embodiments of faith are favored to the detriment of more holistic embodiments of faith. Carolyn Evans here calls for what could be titled a more functional emphasis in understanding religion.7 Such a move opens up protection to a larger number of important aspects of faith. Moreover, a more functional account of (religious) belief could potentially widen the perspective to account seriously for diversity and contemporary spirituality beyond the traditional forms of faith, that is, to extend human rights’ protection by way of analogy. Such an account would potentially be less prejudiced. Law would be sensitized.8 It is not necessarily true that established categories of religion serve no purpose. But we need to reconsider critically the applicability of these categories as tools for making sense of perceived injustices in relation to faith. Moreover, just like the Court falls back on certain assumptions about ‘religion’ and what I call ‘religious personhood’, so does a critical review of what the Court does or does not manage to protect or to ‘value’, as my example above makes clear. In the legal literature, we can find somewhat different, yet largely overlapping ways of identifying different approaches on behalf of the law, courts and legal scholars. W. Cole Durham, Jr. and Brett G. Scharffs, for example, identify four different positions as regards the approaches of legal scholars and courts to religion: 6.

7. 8.

Carolyn Evans, Freedom of Religion under the European Convention on Human Rights (Oxford University Press, 2001) at 63, 65, 75, 202; Pamela Slotte, ‘Waving the ‘Freedom of Religion or Belief ’ Card, or Playing It Safe: Religious Instruction in the Cases of Norway and Finland, 3 Religion and Human Rights (2008) 33–69 at 60. Ibid. For an overview of the discussions of the benefits and drawbacks of an approach to defining religion that by analogy extends protection to forms of religious belief other than the traditional ones, see, for example, Dorota A. Gozdecka, Religions and Legal Boundaries of Democracy in Europe: European Commitment to Democratic Principles (University of Helsinki, 2009) at 67–71; Lucy Vickers, Religious Freedom, Religious Discrimination and the Workplace (Hart, 2008) at 17–20.

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(1) ‘substantive’ approaches, which seek to identify the essence or distinctive character of religious belief; (2) ‘functional’ approaches, which focus on the role that a set of beliefs plays in the life of the believer; (3) ‘analogical’ approaches, which look for sets of characteristics that are indicative of religious belief, although none of those characteristics is necessarily a component of religion; and (4) ‘deferential’ approaches, which focus on or defer to the self-understanding of the adherent as the baseline for defining what is and is not religious. 9

The different positions on what would be the appropriate legal approach to ‘religion’ and, often by way of analogy, to other ‘belief ’, build on normative assumptions about ‘religion’ and the role of law in relation to religion, that is, the purpose of legal definition.10 However, notwithstanding the different purposes that such defining exercises may have, attempts to define religion in law and beyond the legal discipline are not entirely different. To take a concrete example that illustrates these resemblances, in Nordic theological research, definitions of life-views (religious and non-religious) are generally classified into two groups, substance definitions and functional definitions.11 These two groups of definitions have been extensively elaborated on, yet simply put, a substance definition stipulates essential criteria for what can be considered a religious or non-religious view of life (certain basic propositions, certain practices et cetera), whereas a functional definition emphasizes how a lifeview operates in the life of a person or group. A difference can be found in the way cognitive aspects, such as theoretical notions and doctrines, and existential aspects, contextual considerations, and the role of collective patterns of life and thought, are understood and emphasized. While substance definitions attempt to identify what sort of conceptions are intrinsic to a life-view, functional definitions are geared towards acknowledging different ways in which life-views are expressed in people’s lives. A more functional understanding emphasizes that religious and other life-views structure ‘the way we understand and interpret events and 9.

W. Cole, Jr. & Brett G. Scharffs, Law and Religion: National, International, and Comparative Perspectives (Wolters Kluwer, 2010) at 40. See also ibid., at 45–55, for a more detailed analysis of these positions. Lucy Vickers, on the other hand, makes a three-fold distinction in the approaches to defining religion. ‘First is a content-based definition, concerned with identifying the core content of beliefs which makes them religious in nature. Second is an attempt to reason by analogy with those religions which are universally recognized. The idea is to produce a list of key indicators of religion, against which to test those that are less well known. The final approach is to look at the purpose of protecting religion, and to work towards a purposive definition.’ Ibid., at 15. See further ibid., at 16–22. 10. Ibid., at 43. 11. See, e.g., Mikael Lindfelt, Att förstå livsåskådningar – en metateoretisk analys av teologisk livsåskådningsforskning med anknytning till Anders Jeffners ansatser (Acta Universitatis Upsaliensis, 2003), for a detailed elaboration on the points mentioned in this paragraph. Such a distinction is, of course, not limited to Nordic research. The general distinction can also be found, for example, in Gracie Davie, The Sociology of Religion (Sage Publication Ltd., 2007) at 19–21.

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phenomena.’12 While a view of life involves beliefs, it does not equate with a set of beliefs. It also has what could be called a life-regulating, practical function. In fulfilling the function of helping people come to grips with existential questions, life-views fundamentally shape the lives of individuals. Also theorists who advance substance definitions see that life-views affect people’s perception of ‘reality’. But they may conceptualize this function in more cognitive terms – as suppositions about reality – than does the other group of theorists. In reality, theorists do not usually advance one of two clear-cut options, but emphasis is still given to either substance or function.13 There are also attempts to move beyond these definitions. In his book The Myth of Religious Violence: Secular Ideology and the Roots of Modern Conflict, William Cavanaugh presents an alternative to studies of religion that rely on merely substantivist or functionalist (Cavanaugh’s terms) understandings.14 It is unsurprisingly criticism that leads Cavanaugh to present an alternative. Any attempt to define ‘religion’ will in practice end up being seen as simultaneously too open and too narrow, as both over-inclusive and under-inclusive. Things that we might want to include are omitted, while matters that we possibly would exclude end up being included. According to Cavanaugh, a definition can become so broad that it simply collapses under the weight of its own unreasonableness.15 Such a definition will not explain anything nor will it distinguish one phenomenon from another. Moreover, the frustrations that theorist – in jurisprudence and elsewhere – voice when they call a definition too exclusive or alternatively too inclusive reveals that they find the definition inadequate. This in turn, reveals that they have normative ideas about what they want but fail to capture with their definition. Although the theorists themselves may not recognize it, ‘religion’ is not a neutral category. What is more, according to Cavanaugh, both substantial and functional understandings of religion ultimately build on the idea of ‘religion as a thing out there in the world, a basic, transhistorical, and transcultural component of human social life identifiable by its content or function, if we could only reach agreement on what exact criteria separate religion from the secular.’ The approaches thus tend to be ‘essential approaches.’ Cavanaugh, however, rejects the idea of a transhistorical and transcultural essence and concept of religion.16 According to

12. Ulf Zackariasson, Forces by Which We Live: Religion and Religious Experience from the Perspective of a Pragmatic Philosophical Anthropology (Almqvist och Wiksell International, 2002) at 58. 13. What is more, this article will show that the distinction between an internal and an external dimension of freedom of religion or belief forms something of an unquestioned foundational parameter for the whole discussion, independent of whether a commentator highlights function or substance more or less. 14. Cavanaugh, The Myth, supra note 5, at 57–58. 15. Ibid., at 26, 101–106. 16. Ibid., at 3–4, 20, 57–58.

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him, the concept of ‘religion’ is invented rather than merely discovered (as also the Court, apparently, would see it): Religion is a constructed category, not a neutral descriptor of a reality that is simply out there in the world. … The term religion has been used in different times and places by different people according to different interests. More specifically, the category religion as it is most commonly used is tied up with the history of Western modernity and is inseparable from the creation of what Talal Asad has called religion’s ‘Siamese twin ‘secularism’.’17 Scholars have been exploring the ways that the construction of the category of religion has become an important piece in the ideology of the West since the rise of modernity, both within Western cultures and in the colonization of non-Western cultures. Religion is not simply an objective descriptor of certain kinds of practices that show up in every time and place. It is a term that constructs and is constructed by different kinds of political configurations.18

Cavanaugh here advances a methodological perspective that has received attention in recent critical studies of the so-called religious-secular dichotomy.19 He calls for studies with an historical and descriptive emphasis on understandings of the religious and the secular in specific temporal contexts.20 Cavanaugh wants to shift our gaze to concrete practices where ‘religion’ is constructed and have us question its purpose: Instead of searching – in either a substantivist or functionalist mode – for the timeless, transcultural essence of religion, therefore, let us ask why certain things are called religion under certain conditions. What configurations of power are authorized by changes in the way the concept of religion – and its counterpart, the secular – are used? What changes in practices correspond to changes in these concepts?21

The political configuration that is the object of study in this article is the European human rights system. More specifically, I will, as already stated, present a reading of the reasoning of the Court.22 17. Talal Asad, ‘Reading a Modern Classic: W. C. Smith’s The Meaning and End of Religion’, 40 History of Religions (2001) 205–222 at 221. See also Talal Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford University Press, 2003) at 22. 18. Cavanaugh, The Myth, supra note 5 at 58. 19. See, e.g., Timothy Fitzgerald (ed.), Religion and the Secular: Historical and Colonial Formations (Equinox, 2007). 20. Cavanaugh, The Myth, supra note 5, at 58. 21. Ibid., at 119. See also, e.g., Asad, Formations, supra note 17, at 25, 201, and Ola Sigurdson, Det postsekulära tillståndet: religion, modernitet, politik (Glänta production, 2009) at 26–27, for similar observations. 22. The European Court of Human Rights has been operational since 1959. Its structures and procedures were largely reformed through Protocol 11, which entered into force in November 1998. Javier, Martínez-Torrón & Rafael Navarro-Valls, ‘The Protection of Religious Freedom in the System of the Council of Europe’, in Tore Lindholm et al. (eds), Facilitating Freedom of Religion or Belief: A Deskbook (Martinus Nijhoff Publishers, 2004), 209–238 at 214; Pro-

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It has been observed that this Court largely avoids defining religion and belief.23 This is done through a number of legal and technical maneuvers, for example, by deciding to deal with a legal dispute primarily as a question of freedom of assembly or a right to private life, rather than as a question of the right to freedom of religion or belief. If the Court finds a violation, then it will normally conclude that it does not need to consider further whether Article 9 and the right to freedom of religion or belief has also been violated. Moreover, if the Court deals with a case under Article 9 at all, it will swiftly assess whether the case falls under Article 9 and then focus most of its attention on paragraph two, which deals with limitations.24 Nevertheless, it is clear that, in practice, the Court operates on the basis of some kind of understanding of religion. The aim of this article is, as said, to offer some reflections on this understanding via a study of how the Court’s reasoning concerning freedom of religion fall back on a distinction between the religious and the secular. This distinction constitutes a condition that structures the Court’s reasoning. In the discussion that follows, I will firstly give an account of a recent court case that has attracted considerable attention and that concerns the issues of religion, state neutrality and secularism. Secondly, I will elucidate further the issues, which that case raises by placing the case in the context of a wider analysis of the Court’s case law. As I stated in the introduction, ‘neutrality’ and ‘secularism’ are concepts that feature a good deal in the Court’s reasoning in freedom of religion cases. I will map how the Court brings notions of neutrality and secularism into play in its reasoning and I will explore how these notions relate to implicit and explicit ideas of ‘religion.’ Furthermore, in order to gain a meaningful understanding of this discussion, we need to pay attention to the larger ideological and cultural setting in which tocol 11 to the European Convention fot the Protection of Human Rights and Fundamental Freedoms, Restructing the Control Prelimenary Established thereby, 11 May 1994, in force 1 November, 33 ILM 960. Accessible at (21.12.2010). Also found on this website are the European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, in force 3 September 1953, 213 UNTS 222 (hereafter ECHR) and the case law of the Court, to which reference is made in this article. Likewise, the cases of the European Commission for Human Rights can be found on there. 23. European human rights law differentiates between ‘religion’ and ‘belief ’. Freedom of religion or belief is protected. Belief is considered a wider concept. For discussion, see, e.g., Paul M. Taylor, Freedom of Religion: UN and European Human Rights Law and Practice (Cambridge University Press, 2005) at 203–210. When I directly reproduce the reasoning of the Court, I follow its terminology on this topic. For my own part, I prefer to use the terms faith, life-view, or faithbased and other life-views. Moreover, as the concept of religion is the chief subject of this article, it is understandable that through my own choice of words, I want to examine and broaden the understanding embodied in the Court’s reasoning. Even though there is an established terminology in human rights law, this does not necessarily mean that there is undisputed conceptual certainty. 24. Rex Ahdar & Ian Leigh, Religious Freedom in the Liberal State (Oxford University Press, 2005) at 122–123.

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this discussion takes place, as well as to the historical memory which a linguistic community preserves even if the community is always changing. The concept of religion as found in European human rights discourse has a complex history that has left its mark on today’s language use and today’s way of speaking. Various researchers have drawn attention to the need to highlight history when trying to form an understanding of present-day discourse. Talal Asad suggests that ‘we need to attend more closely to the historical grammar of concepts and not to what we take as signs of an essential phenomenon.’25 Similarly, Charles Taylor notes that ‘[o]ur past is sedimented in our present, and we are doomed to misidentify ourselves, as long as we can’t do justice to where we come from’.26 In the last parts of the article, I will therefore make some preliminary remarks about the genealogy27 of the analyzed reasoning. These final sections bring together and deepen the explication of the characteristics of the Court’s approach to ‘religion’ and ‘the secular’. Given the limitations of space here, the historical remarks remain succinct.28 However, even in their rudimentary form, these considerations may perhaps contribute to the academic discussion. For as Peter G. Danchin has noted: Discussion of this early [pre-modern] period [in the wake of the collapse of the unity of Western Christendom] and its defining normative consequences for later thinking within the liberal tradition is conspicuously absent from contemporary accounts of the origins of religious freedom in both political theory and international law.29

3. Crucifixes and Public Schools In November 2009, the Court ruled on a case that concerned having crucifixes on the walls of public (state-funded) schools in Italy.30 In March 2011, a Grand 25. Asad, Formations, supra note 17, at 189. 26. Charles Taylor, A Secular Age (Belknap Press, 2007) at 29. 27. Asad explains a perspective that had its advocates, among others, in Michel Foucault and Friedrich Nietzsche in the following way: ‘Genealogy is not intended here as a substitute for social history (‘real history,’ as many would put it) but as a way of working back from our present to the contingencies that have come together to give us our certainties.’ Asad, Formations, supra note 17, at 16. 28. For a similar approach to contemporary issues of religious freedom, which equally but in much more detail, traces the historic roots of and shifts in the concept of freedom of religion in international law in order to make sense of present day dilemmas, see Peter G. Danchin, ‘The Emergence and Structure of Religious Freedom in International Law Reconsidered’, XXIII Journal of Law and Religion (2007-2008) 455–534. 29. Ibid., at 481. 30. The following discussion is based on Lautsi v. Italy, Application no. 30814/06, European Court of Human Rights, Second Section, Judgement (3 November 2009) and Lautsi and others v. Italy, Application no. 30814/06, European Court of Human Rights, Grand Chamber,

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Chamber ruling overturned this judgment.31 The roots of this Italian tradition can be traced to societal changes at the end of the nineteenth century and beginning of the twentieth. The relations between the relatively young Italian nation-state and the Catholic Church were specified. In compliance with royal decree, pictures of Christ and of the Italian king were to be placed in all public schools as symbols for the Italian people and for the national feeling that the state sought to promote. Once Italy became a republic, the close identification of the Italian state with the Catholic Church began to erode. In 1985, other religious associations besides the Catholic Church were acknowledged in law, and the confessional state ceased to exist, according to a statement by the Italian Constitutional Court in 1989. In the year 2000, that court affirmed the fundamental equality of all citizens regardless of religious affiliation. According to the Constitutional Court, this meant that the Italian state, in accordance with the principle of laïcité (secularism),32 had to adopt an attitude marked by neutrality and distance and offer everyone the same protection.33 Coexistence in freedom and equality is what counts in a pluralistic society. Despite these changes, crucifixes did not disappear from Italian public schools, and a parent of two underage children, Soile Lautsi, took the case to court, first through the national courts and then to the Court in Strasbourg. Lautsi claimed that the presence of crucifixes in the schoolroom contravened the principles of laïcité and state neutrality and violated the right to freedom of religion or belief of her sons as well as her right as a parent to foster her children in accordance with her own convictions. Judgement (18 March 2011) respectively, unless otherwise indicated in the footnotes. For the sake of clarification, other case law to which the Court made reference in its arguments is also mentioned in the footnotes. 31. The Grand Chamber of the Court deals with questions of principal importance or cases that raise serious questions about the interpretation and application of the law. The Grand Chamber also considers cases in which a Chamber judgment possibly departs from the case law of the Court. A party to a case that has been decided by a chamber of the Court may, within three months of that judgment, demand that the case be considered by the Grand Chamber. ECHR, Art. 43[2], supra note 22; (21.12.2010); MartínezTorrón & Navarro-Valls, ‘The Protection’, supra note 22, at 214. The Italian state made such a request. 32. The Court frequently translates laïcité as secularism and laïque as secular. See Ingvill Thorson Plesner, Freedom of religion and belief – a quest for state neutrality? (University of Oslo, 2008) at 13 (fns 5, 6), who refers to the case of Refah Partisi (The Welfare Party) and others v. Turkey, Application no. 41340/98, 41342/98, 41343/98, 41344/98, European Court of Human Rights, Grand Chamber, Judgment (13 February 2003). I have followed the original French terminology at this point. 33. This did not exclude a somewhat different legal regulation of the relationship between the State and various religious denominations.

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Lautsi claimed that the presence of crucifixes was a heritage from a bygone age, a time when the Italian state was confessional, and that it was no longer compatible with the principle of laïcité or the rights guaranteed in the ECHR. Because the crucifix is a religious symbol, Lautsi maintained that its presence in the classroom would influence the pupils’ understanding of the teaching in school, which thus contradicted the requirement for freedom of thought. Moreover, the presence of crucifixes would influence pupils’ understanding of the Italian state. It was not acceptable that a state governed by law should be perceived as closely linked to one faith. No faith should be granted such a privileged position. Allowing all kinds of symbols on school walls does not solve the problem to which Lautsi drew attention. This was the suggestion put forward by the Italian state. No symbols belong on the walls. The Italian state naturally argued the contrary. In its defense, it claimed that school education in Italy is totally secular (laïque) and pluralistic. Religious instruction is a voluntary subject. The state furthermore stressed that a distinction has to be made between a symbol and an action that actively seeks to promote certain politics. While crucifixes can be seen as religious symbols, they also can and should be ascribed a considerably broader meaning. The crucifixes symbolize a cultural humanist tradition, a collection of values and principles that form the basis of a democratic heritage, including the distinction of religion from politics.34 This meaning, furthermore, can be comprehended independently of the religious tradition that forms their historical basis. Both believers and non-believers can understand this humanistic ethical message. This message is consistent with laïcité. The state does not neglect its duty of being neutral and impartial because of this practice. It is not about expressing religious preference. Therefore, the practice with crucifixes cannot be considered to contradict the ECHR. What is more, the defense observed that European practice varies when it comes to interpreting the principle of laïcité, and that the Court ought to grant member states such interpretative freedom as a way of respecting the diversity of state practice.35 The defense further argued that states should be granted great interpretative freedom regarding such delicate questions as those at stake in this present case. The decision to allow religious symbols in public schools, argued the defense, should be left to the discretion of individual states. The question was a political one to be left to national parliaments, not a legal one to be decided by the Court. 34. The state also mentioned non-violence, the equal worth of every human being, justice and fair distribution, freedom of choice and brotherly love. It also mentioned notions of the primacy of the individual before and above the collective and forgiveness of one’s enemies. 35. This is accepted practice with regard to the ECHR. The Court shows regard for existing practice in member states. Unambiguous and uniform practice is directive, while the occurrence of multiple understandings renders the Court more cautious in its judgments.

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The Court, for its part, based its decision on certain fundamental principles that it read out of its own case law on faith and education.36 Important were the following points: A pluralistic education is essential to promoting a democratic society, and in the modern state, this goal is primarily advanced through public education. Moreover, respecting the convictions of children and their parents includes respecting their right to religion and the freedom from religion. States should not take a position on the legitimacy of different convictions and their expressions. This is incompatible with the notions of neutrality and impartiality. Parents’ right to foster their children in conformity with their own convictions must be respected in all education. This is accomplished by creating a school environment that is as inclusive and open as possible. No one may be excluded based on his or her religious convictions. Neutrality is thought to guarantee that pluralism prevails in the school reality. Preaching and missionary activities have no place there.37 All compulsory teaching should be critical, objective, and pluralistic in character. The question then became whether crucifixes on classroom walls are compatible with these principles. In the Italian case, the principal reasoning led the Court to the following conclusion; States should avoid exposing people to direct and indirect religious influence. Spatial and institutional aspects are the focus of attention here. School reality is an especially sensitive area. Depending on the level of maturity, a child will be more or less able to relate in a distanced and critical way to expressions that suggest religious preference on the part of the state. Public schools ought to be confessionally neutral and promote critical thinking. The Court did not see how a Catholic symbol such as a crucifix could serve a pluralistic education and thereby support the democratic society that the ECHR seeks to safeguard and promote. The Court thus viewed the symbolic status of the crucifix differently from the Italian state. According to the Court, the religious meaning of a crucifix is 36. Kjeldsen, Busk Madsen and Pedersen v. Denmark, Application no. 5095/71, 5920/72, 5926/72, European Court of Human Rights, Judgement (7 December 1976), at paras 50–54; Campbell and Cosans v. the United Kingdom, Application no. 7511/76, 7743/76, European Court of Human Rights, Judgment (25 February 1982), at paras 36–37, Valsamis v. Greece, Application no. 21787/93, European Court of Human Rights, Judgment (18 December 1996), at paras 25–28, Folgerø and Others v. Norway, Application no. 15472/02, European Court of Human Rights, Grand Chamber, Judgment (29 June 2007), at para. 84. 37. In other cases, the Court has ruled that a state school is not primarily a place for religious practice. If religion is practiced, for example, in the form of worship services, prayer or singing of hymns, children and their parents must be allowed to decide for themselves whether children should participate. Compulsory participation cannot be required. Such is also the case with regard to religious instruction that is confessional. Any compulsory religious instruction must be ‘objective’, ‘critical’ and ‘pluralistic’ in character. Kjeldsen, Busk Madsen and Pedersen v. Denmark, at para. 53; Folgerø and others v. Norway, at para. 84; Hasan and Eylem Zengin v. Turkey, Application no. 1448/04, European Court of Human Rights, Judgment (9 October 2007), at paras 52, 71.

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the dominant meaning. The practice of having crucifixes on classroom walls goes beyond what could be viewed as merely a use of the symbols in their specific historical context, to paraphrase the Court. Crucifixes are central to the Catholic Church. Crucifixes on classroom walls thus demonstrate that the Italian state sides with the Catholic faith. Hence, it was not surprising that Lautsi interpreted the situation as she did. The Court here referred to the case of Dahlab v. Switzerland that concerned a primary school teacher who wore an Islamic headscarf in concluding that: The Court acknowledges that, as submitted, it is impossible not to notice crucifixes in the classrooms. In the context of public education they are necessarily perceived as an integral part of the school environment and may therefore be considered ‘powerful external symbols.’38

The Court also addressed the distinction that the defense made between symbols and actions. The right to freedom from religion not only entails the right not to have to participate in religious ceremonies, instruction in religion or other kinds of religious practice, but also extends to the symbolic level, be it the symbolic language of a distinct ‘religion’ or what is called ‘common religious symbolic expressions’. Atheism is also mentioned here. Not surprisingly, the Court thus reached the conclusion that the situation would not be improved upon if a number of other symbols were hung on the classroom walls alongside the crucifixes. The Court further emphasized that religious rituals and symbols may present a special burden for minorities in societies in which a large majority belong to a certain religious community. Hence, the Court wanted to highlight the difficulty of upholding a sense of plurality and neutrality when the society de facto is religiously homogeneous to a large extent. Rites and symbols in the public space may then support a feeling of exclusion and of being different, something that the modern state in accordance with the principles of neutrality and impartiality should counteract. In addition, the kinds of violations mentioned here are particularly serious when people find themselves in situations that they can hardly avoid or can avoid only by making disproportionately large sacrifices and when we are dealing with religious expressions on the part of a state. Considering this line of reasoning, it is not surprising that the Court found that Italy had violated the ECHR. The Court found that a violation of Article 2 38. Quote from the official English translation of the case of Lautsi v. Italy, (Second Section), at para. 54; citing Dahlab v. Switzerland, Application no. 42393/98, European Court of Human Rights, Decision (15 February 2001), ECHR 2001-V. I will return to the case of Dahlab v. Switzerland later in this article. It is also hardly surprising that the Court emphasized that Lautsi’s convictions were ‘serious’ and ‘coherent’ to such a degree that it was reasonable to suggest that the presence of crucifixes in the classrooms of her sons violated her conviction. I will return to this below as well.

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of Protocol No. 1 and the right of parents’ to educate their children in conformity with their own convictions, read in conjunction with Article 9 and the right to freedom of religion or belief. The state had restricted the claimant’s freedom in a way that did not conform to ‘the State’s duty to respect neutrality in the exercise of public authority, particularly in the field of education.’39 In the subsequent Grand Chamber judgment, however, the Court overturned the earlier Chamber judgment. The Court now sided with the respondent State. It noted that as regards the sensitive matter at hand there exists no common European practice. In such cases, the Court affords member states wide discretion. However, discretion is not unlimited and the Court set about deciding whether the Italian state has overstepped its mandate. Among other things, distinctions were introduced into the argumentation about symbols, an aspect of the argumentation in the Chamber judgment that had attracted critique.40 The crucifix was now held to be ‘an essentially passive symbol.’ For us to be able to talk of pupils and parents having their freedoms infringed, more is needed besides the simple presence of crucifixes on the classroom walls. Taking all aspects into account, like the fact that pupils were allowed to wear religious symbols in school and receive instruction in their own faith (provided it was a recognized creed), the Court concluded that no politics of Christian indoctrination, of which the display of crucifixes would form part, was at work in Italian public schools. Rather, education and teaching met the criteria set out by the Court in its case law: it was objective, critical and pluralistic. Hence, the right of parents and legal guardians to have their children educated in conformity with their own convictions had not been violated. (No separate issue was said to arise under Article 9.) It is noteworthy that the Court in the Grand Chamber judgment now explicitly stated that the case differed from that of Dahlab v. Switzerland which the Court had referred to in the Chamber judgment when making the point that crucifixes could be considered to be ‘powerful, external symbols.’41 Subsequent parts of this article will dwell on this surprising and somewhat contradictory matter in detail. Interesting is also that the Court now explicitly stated that its task was not to judge whether the presence of crucifixes was compatible with the principle of secularism expressed in the Italian constitution. Instead it restricted itself to assessing the compatibility of the presence of crucifixes with the right of freedom of religion and the right of parents and legal guardians to have their children educated in conformity with their own convictions. The judgment can, among 39. Quote from the official English translation of the case of Lautsi v. Italy (Second Section), at para. 57. 40. See e.g., Joseph H. H. Weiler, ‘Lautsi: Crucifix in the Classroom Redux’, 21 European Journal of International Law (2010) 1-6. 41. Lautsi and Others v. Italy (Grand Chamber), para. 73.

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other things, be interpreted as expressive of the Court’s continual unwillingness to take a strong stand on traditional state-church arrangements. The Court wanted to abstain from interfering with what several third-party interveners before the Court referred to as the cultural identity of a country. The Chamber judgment went too far in this respect, now the Court took a step back. However, the reasoning does stand out in light of what has been the trend in recent years: namely for the Court to emphasize, as it did in the Chamber judgment, the secular nature of public educational institutions and that this fact may legitimately limit not only the dealings of states, but also how individuals may exercise their freedom of religion or belief within these institutions, for example through their clothing. For this reason, critics have observed that the Court has been moving in a direction that demands stricter separation between state and faith. Does not this new Grand Chamber judgment prove such an analysis wrong? I will argue that at a certain level, it does not necessarily do this. As we shall see in the following sections, the cases that have previously attracted much attention and critique of the above kind, such as the case of Dahlab v. Switzerland, have to a large extent, but not solely naturally, had respondent States with a more outspoken secularist state ideology: Turkey, France and Switzerland. Moreover, the applicants have been Muslims. These cases have been decided to the benefit of the respondent states and to the detriment of the applicants, Muslim women and girls. Critics have suggested that the trend shift in the way the Court manages questions of freedom of religion or belief largely relates to the kinds of questions that Europe faces as a result of its increasing societal diversity. At issue are, as I see it, changes that challenge implicit and explicit notions of religion and the secular. Islam is regarded as a faith that holds political and societal ambitions more overtly than, for example, Protestant Christianity or present-day Catholicism in Italy. Be this as it may in either case, what is of interest here is that such notions seem to prejudice the Court’s reasoning. As noted, the Court fell back on its own case law regarding religious freedom and education in its reasoning in the case of Lautsi v. Italy. Through the years, the Court has elaborated certain main principles as regards this topic. While changes do occur, I argue that we can discern certain durable, fundamental elements in the Court’s reasoning both as concerns religion in school reality and also more generally. Below, I will give an account of certain such elements as regards religion, yet simultaneously point out a discernible shift in the way the Court manages questions of freedom of religion or belief. In the first subsection, I will present fundamental aspects of the rationality that is ‘in-built’ in European human rights law and governs the understanding of ‘religion’. It is reflected in the formulation of Article 9 itself. It structures the reasoning of the Court. That presentation forms a background for the following subsections where I offer an account for the concrete reasoning in recent

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case law. We shall see that when the Court adjudicates and tries to capture the content and limits to religious freedom it focuses on how states have acted. The notion of neutrality is central. However, neutrality should not only characterize specific state action. In recent years, the Court has repeatedly spoken of ‘neutrality’ also to characterize the desirable public space more broadly. In both cases, the principle of secularism is introduced in order to capture a more precise meaning of neutrality with regard to religion. Moreover, and controversially, this affects what the Court considers appropriate ways of individuals to manifest faith in public. This shift has been described as a shift from liberal secularism to secular fundamentalism.

4. From Liberal Secularism to Secular Fundamentalism 4.1. Some Fundamental Categories for Conceptualizing Religion in European Human Rights Law As noted above, the Court seeks as far as possible to avoid having to take a stand on the question of what is ‘religion’ or ‘religious’. Such a task is not part of its mandate. (Likewise, the Court has repeatedly emphasized that states should not see it as their job to assess the ‘legitimacy’ of various beliefs, although what is meant by ‘legitimacy’ in this context is not necessarily apparent; legitimate in relation to what?) Yet an observer of the case of Lautsi v. Italy can easily see that the case cannot be decided without falling back on some assumptions about faith. How else could Lautsi claim that her children were being exposed to unwanted influences from foreign religion? Or how else could the Court in the Grand Chamber judgment draw the conclusion that this was in fact not the case? The Court not only took a stand on what is acceptable state behavior according to formally valid law. It established that conditions were not problematic with respect to freedom of religion or belief, freedom to religion, and in this case from religion. So what notion of religion is it that we encounter in the Court’s reasoning? Human rights are usually understood as rights belonging to individuals rather than groups, even though a collective aspect or dimension is emphasized in relation to a number of rights, for example, in regard to the right to freedom of religion or belief.42 The Court emphasizes the importance of a faith community for the human being who wants to express his or her faith through worship, teaching or 42. See, e.g., Martínez-Torrón & Navarro-Valls, ‘The Protection’, supra note 22, at 216; Thorson Plesner, Freedom, supra note 32, at 265 (fn. 24), as well as ibid., at 260, 263–266; United Nations Human Rights Committee, General Comment No. 22, UN Doc. CCPR/C/21/Rev.1/Add.4 (1993). There are also rights that are primarily characterized as collective rights, such as the right to self-determination. Moreover, several other rights are of immediate importance to the right to freedom of religion or belief, such as freedom of assembly and freedom of association.

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other kinds of ceremonies or rituals. ‘Participation in the life of the community’ is a form of manifesting one’s faith.43 The Court also takes into account the collective in other ways in its reasoning. The Court’s view of religion seems to be closely connected with ‘religious’ institutions44 and their dogmatic structures (also when the personal beliefs of individuals are at issue). Accounts of religion depend on institutional articulations of faith, mainly traditional and well-known ones. A frequently repeated phrase, which hails from a decision on application before the European Commission for Human Rights, C. v. the United Kingdom, establishes that the Convention ‘protects acts of worship and devotion which are aspects of the practice of a religion or belief in a generally recognized form.’45 The position that traditional expressions of faith have come to occupy as a point of reference, also with regard to life-views of a newer or different kind, may be partly explained by the fact that, as various theoreticians have pointed out, the Court seems to work with analogies. To a great extent religious faith is understood by analogy with various intellectual convictions.46 The kinds of convictions that can count on protection must have achieved what has been characterized as ‘a certain level of cogency, seriousness, cohesion and importance.’47 In section 2,

43. 44. 45.

46.

47.

A usual way to address this aspect is to speak of rights as being interrelated. Thorson Plesner, Freedom, supra note 32, at 261. See, e.g., Hasan and Chaush v. Bulgaria, Application no. 30985/96, European Court of Human Rights, Grand Chamber, Judgment (26 October 2000), at para. 62. See, e.g., ibid.: ‘The Court recalls that religious communities traditionally and universally exist in the form of organised structures.’ C. v. the United Kingdom, Application no. 10358/83, European Commission of Human Rights, Decision (15 December 1983) 37 Decisions & Reports 142, at 147, as well as Kuznetsov and Others v. Russia, Application no. 184/02, European Court of Human Rights, Judgment (11 January 2007), at para. 57; Kalaç v. Turkey, Application no. 20704/92, European Court of Human Rights, Judgment (1 July 1997), at para. 27. Evans, Freedom, supra note 6, at 63, 75–76, 132; Malcolm D. Evans, ‘Freedom of religion and the European Convention on Human Rights: Approaches, Trends and Tensions’, in Peter Cane, Carolyn Evans & Zoë Robinson (eds), Law and Religion in Theoretical and Historical Context (Cambridge University Press, 2008) 291–315 at 313. A more recent example in which similar such underlying notions seem to guide the Court is Carmuirea Spirituala a Musulmanilor din Republica Moldova v. Moldova, Application no. 12282/02, European Court of Human Rights, Decisión (14 June 2005). In this case, the Court accepted the Moldovian practice of demanding that faith communities present documents spelling out the foundational principles of their religion in order to be allowed to register as a faith community. This practice was considered necessary in order to assess the authenticity of the organization in question and whether it might pose a threat to a democratic society. Campbell and Cosans v. the United Kingdom, at para. 36. The case concerns the right to education and the right of parents to educate their children in accordance with their own convictions. In the explanation of the meaning of ‘convictions’, the Court referred to the meaning of ‘beliefs’ within the context of Article 9 on freedom of religion, thought and conscience.

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we saw that this focus on intellectual coherence has been criticized as an overly narrow understanding of religion. It is not surprising, of course, that we seek to deal with various phenomena, new as well as well-known, on the basis of the knowledge we already see ourselves possessing. What we know forms the point of departure for the analogies we make.48 In the case of the Court, the emphases that are given are largely part of what could be called a tendency to an essentializing account of religion. This tendency is noticeable in case law where, for example, it is assumed that in various life-views it is possible to distil a clear core of beliefs.49 This too is not surprising. As Roger Trigg has noted, human rights have a tendency to promote abstract reasoning.50 Things are generalized and universalized. By studying the reasoning in case law, we also expose other deep-seated notions about faith, which guide the Court in its work. Among other things, the Court distinguishes between ‘belief ’ and ‘manifestation’. This distinction has implications for the entire reasoning about faith and religious freedom. Article 9 of the ECHR is structured in accordance with this distinction, and it is consequently of fundamental importance in the judgments of the Court: 48. Jeremy Webber, ‘Understanding the religion in Freedom of Religion’, in Peter Cane, Carolyn Evans & Zoë Robinson (eds), Law and Religion in Theoretical and Historical Context (Cambridge University Press, 2008) 26–43 at 41–42. See also Evans, Freedom, supra note 6, at 132. For the sake of clarification, I want to make an epistemological observation here by returning to the introductory point that the Court does not explicitly define religion in advance, but acts as if it knows it when it sees it. While there is surely room for criticism of lack of critical reflection and false contingencies, as critics have pointed out, I wish to argue that it is simultaneously a ‘fact of life’ that what we acknowledge even when we explicitly strive to break new ground is not independent of previous conceptualizations of ‘religion’. In this sense, it is not possible to take a ‘neutral’ position beyond and above the existing linguistic universes. We argue on the basis of certain presuppositions, even if under specific circumstances, something may, after extensive consideration, be identified as a false contingency. These two things should not be confused. (What is more, a false contingency is in itself a related concept that depends on what we otherwise take to be the case). Peter G. Danchin has put the point in the following way: ‘For Gadamer, prejudices are not the remnants of an unenlightened mentality but the very things which both permit and constrain interpretation and understanding. Reason in this sense is historical and ‘situated,’ unable to free itself from historical context and horizons, gaining its distinctive power always within a living and finite tradition – the ‘lived world’ of the individual (which precedes the individual herself). Because any interpreter views his or her object of interpretation from and within a certain historically-situated ‘horizon’ of expectations, beliefs and practices, understanding or meaning cannot be ‘objective’ in the Cartesian or Enlightenment sense.’ Danchin, ‘The Emergence’, supra note 28, at 456 (fn. 4); referring to Hans-Georg Gadamer, Truth and Method (2nd ed., Continuum International Publishing Group, 1975) at 268–306. Consequently, it is also not entirely off the mark to say that we know religion when we see it, but the situatedness of epistemological deliberations in which that sort of statement can make sense differs, of course, from the practice of the Court in relation to which that remark has critical relevance. 49. Evans, Freedom, supra note 6, at 75. 50. Roger Trigg, Religion in Public Life: Must Faith Be Privatized? (Oxford University Press, 2007) at 86.

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1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.51

Through this distinction we are presented with an understanding of a religious person whose faith is an inner state of mind clearly distinguishable from manifestations of faith,52 such as rites and rituals, symbols, clothing, teaching or observance of certain food choices. A distinction is made between forum internum and forum externum. The freedom to adopt a faith, to believe or not to believe, is absolute. This freedom may not be restricted. Indoctrination is prohibited. No one may be forced to reveal their beliefs. Forum internum is seen as a ‘hands-off’ area for the state. In contrast, the right to manifest one’s faith may be restricted. Acts of faith may have consequences for other people’s rights as well as societal consequences of a kind that generates a need for state regulation. The discussion is about what is ‘necessary in a democratic society.’.53 This elementary distinction between faith/conviction and action thus makes other distinctions conceivable. By distinguishing belief (in the sense of beliefs, i.e. articles of faith) and acts of faith in the way it is done, justified legal regulation in matters of faith is made possible, because in law states can limit how faith may be expressed in the public sphere without this being considered an undermining of freedom of religion or belief.54 The distinction creates room for state action. The distinction between faith and action, belief (in the above sense) and mani51. ECHR Art. 9, supra note 22. 52. See, e.g,. Kokkinakis v. Greece, Application no. 14307/88, European Court of Human Rights, Judgment (25 May 1993), at para. 31: ‘While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to ‘manifest [one’s] religion’. Bearing witness in words and deeds is bound up with the existence of religious convictions.’ 53. See ECHR, Art. 9, supra note 22, and e.g. Martínez-Torrón & Navarro-Valls, ‘The Protection’, supra note 22, at 228–229; Tore Lindholm et al., ‘Introduction’, in Tore Lindholm et al. (eds), Facilitating Freedom of Religion or Belief: A Deskbook (Martinus Nijhoff Publishers, 2004) xxvii–lxxiv at xxxvii; Johan D. van der Vyver, The Relationship of Freedom of Religion or Belief Norms to Other Human Rights, in Tore Lindholm et al. (eds), Facilitating Freedom of Religion or Belief: A Deskbook (Martinus Nijhoff Publishers, 2004) 85–123 at 121; Taylor, Freedom, supra note 23, at 292; Thorson Plesner, Freedom, supra note 32, at 263–264 (fns 21–22); Evans, ‘Freedom’, supra note 46, at 292; and as regards case law, e.g. Kokkinakis v. Greece, at paras 31, 33. 54. Any limitation must be prescribed by law and have as its goal one of the legitimate aims mentioned by the ECHR. It must furthermore, as stated in Article 9, be ‘necessary in a democratic society.’

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festation of faith is therefore also fundamental to distinguishing the religious from the secular, and for the way this distinction is made. It makes it possible to identify different societal spheres that can be characterized in different ways, for example as ‘religious’ or ‘secular’. One consequence is that different actors, such as various faith communities and government bodies, can be ascribed different roles in different spheres quite legitimately. In a similar fashion, Cavanaugh observes that the distinction between inner faith and an outer manifestation of faith makes possible, among other things, a distinction between public and private. (This distinction is vital to the human rights discussion.55) He notes that both distinctions are political. Using them to characterize and deal with various phenomena is a form of exercising power, precisely because of the sort of spaces for action thereby created and the kinds of power and authority they legitimate.56 Hence, the distinctions shape the Court’s notion of religion and enable it to draw certain conclusions about the right to freedom of religion or belief of individuals and faith communities, its content and scope, and about how states can and should relate to this freedom and make accommodations for faith(s). In the following subsections, we will see how these building blocks structure the Court’s reasoning in practice. I will approach the Court’s notion of religion in a roundabout way by highlighting the central role played by the notion of neutrality in cases involving religion. As I said above, the principle of secularism is introduced in order to capture a more precise meaning of neutrality with regard to religion. In addition, it will become clear that also other notions such as pluralism and democracy feature a good deal in the Court’s reasoning as regards these matters. State neutrality in issues regarding religion is needed to preserve pluralism, which is viewed as valuable in itself. ECHR seeks to protect and advance a plural democratic society. This concept of society informs the approach of the Court when it interprets the ECHR, including the scope of religious freedom.

4.2. From an ‘Individualist Rights Approach’ to Promotion of ‘Public Secularism’ With regard to religion and politics, there are a variety of arrangements in different European countries. Some states are expressly confessional states or have a so-called ‘establishment.’ Other states have opted for a model of ‘non-establishment’ or ‘cooperation.’ France and Turkey are known for their model of laïcité characterized by ‘separation.’57 The identification of a state with a certain faith can thus 55. Thorson Plesner, Freedom, supra note 32, at 341. 56. Cavanaugh, The Myth, supra note 5, at 59. 57. Aernout Nieuwenhuis, ‘European Court of Human Rights: State and Religion, Schools and Scarves, An Analysis of the Margin of Appreciation as Used in the Case of Leyla Şahin v. Turkey, Decision of 29 June 2004, Application Number 44774/98’, 1 European Constitutional Law

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be more or less explicit, more or less established and more or less coupled with a concurrent position on other faiths and beliefs. Commentators have observed that different so-called state-church models have different advantages and disadvantages from the perspective of freedom of religion or belief.58 Moreover, political decisions made with regard to religion are regularly called into question. It is exactly their interpretation that is questioned when attention is called to a violation of freedom of religion or belief, as in the case of the crucifixes in Italian public schools. Is the concrete state-church model that we encounter in that case acceptable from the perspective of freedom of religion? Can the state privilege a specific faith this way? Does the model provide sufficient safeguards for those who believe differently?59 The Court has accepted the variety of arrangements60 and the Grand Chamber judgment in the Lautsi case reaffirms this principle position. States are explicitly given space for interpretation and have been allowed to give ‘symbolic as well as legal preference to certain traditions.’61 Historical reasons have been offered here. However, the Court does not afford states unlimited interpretative space62. The acceptance of an arrangement has been considered dependent upon prohibition of discrimination. States may not simultaneously discriminate other faith communities, individuals must be free to choose their religious persuasion, and other aspects of freedom of religion or belief have to be guaranteed.63

58. 59.

60. 61. 62. 63.

Review (2005) 495–510 at 499–501; Thorson Plesner, Freedom, supra note 32; Gozdecka, Religions, supra note 8. For various ways of categorizing what is called ‘state-religion’ or ‘state-church’ relationships, see, e.g., W. Cole Durham Jr., ‘Perspectives on Religious Liberty: A Comparative Framework’, in Johan D. van der Vyver & John Witte, Jr. (eds), Religious Human Rights in Global Perspective: Legal Perspectives (Martinus Nijhoff Publishers, 1996) 1–44 at 15–25; Thorson Plesner, Freedom, supra note 32, at 73–85. With reference to Lisbet Christoffersen, it can be said that what we find empirically is a variety of ‘negotiated secularreligious’ identities. Christoffersen finds it meaningful to talk of ‘intertwinement’ in order to capture the various forms of co-existence that are characterized not by the strict separation of law and religion, but rather by mutual influence. Lisbet Christoffersen, ‘Intertwinement: A New Concept for Understanding Religion-Law Relations’, 19 Nordic Journal of Religion and Society (2006) 109–128 at 107, 109. See, e.g., Thorson Plesner, Freedom, supra note 32, at 403–406, for an overview. It is thus also, generally speaking, within concrete contexts and in relation to specific situations whereby an understanding of the meaning of freedom of religion is shaped with regard to state-church models. All interpretations and applications of legal human rights are, in this sense, contextual. See, e.g., Nieuwenhuis, ‘European Court’, supra note 57, at 502; Otto-Preminger-Institute v. Austria, Application no. 13470/87, European Court of Human Rights, Judgment (14 January 1993), at para. 50. Thorson Plesner, Freedom, supra note 32, at 308. See, e.g., Thorson Plesner, Freedom, supra note 32, at 258. Martínez-Torrón & Navarro-Valls, ‘The Protection’, supra note 22, at 216–218; M. Todd Parker, ‘The Freedom to Manifest Religious Belief: An Analysis of the Necessity Clauses of

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Regarding the stance the Court takes in its case law on the basis of the basic distinctions mentioned above and the room for interpretation these distinctions permit, a shift has, as I mentioned previously, taken place in the manner in which the Court deals with religious life-views and affords them protection in the public sphere or allows for state restrictions. This shift is relevant to the theme of this article as it illustrates the way in which the Court seeks to distinguish between the religious and the secular. In the attempt to grasp the political consequences of the Court’s case law regarding freedom of religion or belief, the shift in question has been called a transition from ‘liberal secularism’ to ‘secular fundamentalism’,64 or from ‘liberal secularism’ to ‘illiberal secularism.’65 Interestingly, the Court in the Grand Chamber judgment in Lautsi, maybe in response to such allegations, identifies ‘secularism’ as a ‘philosophical conviction’ the respect of which may legitimately be restricted under the ECHR.66 We can interpret this as an attempt by the Court to reassert its own neutrality in life stance matters. However, the reasoning in the first Lautsi judgment can be understood as one of several examples that are indicative of this shift. Another much-discussed case is Refah Partisi (the Welfare Party) v. Turkey.67 In this case, the Court found that Turkey was warranted in dissolving a political party that had propagated a kind of multilegal system. Within the national legal framework the party wanted to accommodate the option for different groups to follow different religious laws, such as Islamic private law. The party considered this arrangement to conform to the principle of laïcité. Turkey, on the other hand,

64.

65. 66. 67.

the ICCPR and the ECHR’, 17 Duke Journal of Comparative & International Law (2006) 91–129, at 123–124; Thorson Plesner, Freedom, supra note 32, at 270–271, 286. Evans, ‘Freedom’, supra note 46, at 305, 312. For a short and focused explanation of the meaning of ‘liberal secularism’ or ‘open laïcité’ and ‘fundamentalist secularism’ or ‘strict laïcité’, see also Sylvie Langlaude, ‘Indoctrination, Secularism, Religious Liberty, and the ECHR’, 55 International & Comparative Law Quarterly (2006) 922–944 at 937. Thorson Plesner, Freedom, supra note 32, at 409 (fn. 14). Lautsi and Others v. Italy [GC], at para. 58. For a short analysis, see e.g. Martin Scheinin, ‘Hur skall man lösa konflikter mellan individuella och kollektiva rättigheter?’, in Tage Kurtén & Joakim Molander (eds), Homo moralis: Människan och rättssamhället (Studentlitteratur, 2005) 187–205; Christoffersen, ‘Intertwinement’, supra note 57, at 113–114; and Martínez-Torrón & Navarro-Valls, ‘The Protection’, supra note 22, 226–227, who argue that while the Court in its judgment affirmed previous interpretations of the right to freedom of religion or belief, the case raises certain questions concerning the future interpretation of freedom of religion or belief and the freedom of association. The judgment was passed with the smallest possible margin. With four votes to three, the Court concluded that there existed a ‘pressing social need’ to dissolve the party. The judges did not disagree on the relevant general principles of interpretation, but rather on how those principles should be understood in the case. However, the dissenting judges did not distance themselves from the assumptions made about Islam in the ruling. When dealt with by the Grand Chamber later on, a unanimous Court reaffirmed the previous chamber judgment.

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argued that the party strove for a political system that was incompatible with this principle as well as being undemocratic. Among other things, the Court observed that a political system based on sharia or Islamic law is incompatible with the ‘basic democratic principle’ expressed in the ECHR. It argued that it is hardly possible to support a political regime that is based on sharia and simultaneously claims to support democracy and human rights. Such a regime clearly disassociates itself from the values of the ECHR. Perhaps not surprisingly, the Court observed that such is especially the case as regards the legal status of women. The Court also emphasized the way in which sharia ‘intervenes in all spheres of private and public life in accordance with religious precepts.’68 Here we see an example of how the Court in its reasoning relies on the fundamental distinction between the private and the public sphere. It establishes the private sphere as the primary legitimate sphere for religion (although it does seem to object to religious law intervening too extensively and ‘in all spheres of private’ life). The Court refutes political ambitions on part of religion, accordingly entrusting the state with the task to safeguard the integrity of a secular public sphere. The consequences of the case of Refah Partisi (the Welfare Party) v. Turkey have been interpreted in the following way: [T]he human rights approach is to ensure that believers might believe as they wish and that they might be free to practise the rituals of their faith provided that this is compatible with the general public good, but the state is to rise above religion, ordering and policing its practice, neither embracing nor reflecting particular tenets of belief, and all the while seeking to preserve the space for private pluralism by encouraging public secularism. This is in marked contrast with what might be termed the ‘individualist’ rights approach which did not prevent the privileging of a form of religion in the public life (or of excluding all religions from public life) provided that all individuals were in fact capable of enjoying their freedom of religion or belief, a model that has aptly been described as ‘liberal secularism’.69

In the quotation, the author observes that the new focus which appears in case law is in glaring contrast to the ‘‘individualist’ rights approach’ that marks liberal secularism. Previously, the task of states has been to intervene in citizens’ lives when deemed necessary in order to guarantee equality. In such cases, the Court has primarily evaluated whether such state interventions in the right to freedom of religion or belief are warranted or not.70 As we saw above, the overall policy has been that a variety of different state-church arrangements is accepted. 68. Refah Partisi (The Welfare Party) v. Turkey [GC], at para. 123. 69. Evans, ‘Freedom’, supra note 46, at 305, who borrows the term ‘liberal secularism’ from Thorson Plesner, The European Court on Human Rights: Between Fundamentalism and Liberal Secularism, accessible at 70. Evans, ‘Freedom’, supra note 46, at 300.

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Today examples can be found of the Court studying various situations, not only from the perspective of individuals who believe that their right to exercise their faith has been violated, but also from a wider perspective. When seeking the correct way for states to relate to faith communities, their leaders and other representatives,71 the Court recognizes the character of the public sphere in a different way than before, as the quotation above makes clear. In questions regarding religion and belief, the Court emphasizes state neutrality,72 and in the public sphere, regards secularism as ‘a tangible manifestation of neutrality.’73 In the first Lautsi judgment, for example, as well as in the cases of Refah Partisi (the Welfare Party) v. Turkey, Leila Şahin v. Turkey and Dahlab v. Switzerland, to which I will return below, these changes of emphasis are apparent.74 From the perspective of religious freedom, it therefore seems that ‘neutrality’ means that states take pains to provide space for a diversity of religious and other life-views in the private sphere, while simultaneously promoting public secularism. The actual scope of religious pluralism is restricted.

71. Ibid., at 300–301. 72. See, e.g., Refah Partisi v. Turkey [GC], at para. 91. 73. See Evans, ‘Freedom’, supra note 46, at 306, who gives an account of the views of Judge Tulkens. Drawing on Jeremy Gunn, Sylvie Langlaude notes that, in the case Leyla Şahin v. Turkey, Application no. 44774/98, European Court of Human Rights, Grand Chamber, Judgment (10 November 2005), the Court did not offer a clear definition of secularism. ‘The closest the Court comes to describing the doctrine of secularism is when it suggests that secularism means something like State ‘neutrality’ with regard to religion and perhaps the separation of the ‘public and religious spheres.’’ Langlaude, ‘Indoctrination’, supra note 64, at 937–938; T. Jeremy Gunn, ‘Fearful Symbols: The Islamic Headscarf and the European Court of Human Rights’, at 16, accessible at . Stanley Fish has observed that ‘real neutrality’ is not conceptually possible. Stanley Fish, ‘Mission Impossible: Settling the Just Bounds between Church and State’, in Stephen M. Feldman (ed.), Law & Religion: A Critical Anthology (New York University Press 2000) 383–410. Neutrality is a standpoint. The term neutrality can have different meanings, which are revealed through a study of discourses. For an in-depth study of possible meanings of ‘state neutrality’, see Thorson Plesner, Freedom, supra note 32. Thorson Plesner has, among other things, noted that the Court as well as the wider discussion more generally lack a clear understanding of neutrality. However, what it is about could be captured either in terms of separation, i.e. the state does not identify with any specific faith or with ‘religion’ at all or in terms of equality/equal treatment of ‘religions’ or ‘religion’ and ‘non-religion’. In practice, different theorists, national legislators and international human rights bodies understand this differently. Ibid., at 43–60. 74. Two other cases worth mentioning in this regard are the cases of Dogru v. France, Application no. 27058/05, European Court of Human Rights, Judgment (4 December 2008), and Kervanci v. France, Application no. 31645/04, European Court of Human Rights, Judgment (4 December 2008).

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4.3. Respecting the Principle of Secularism as a Duty of States, Groups and Individuals Thus while the European Court for Human Rights clearly hold a vision of a culturally and religiously plural democratic society, and pluralism is presented as an inherent feature of the European notion of democracy,75 it is clear that religious pluralism is not without restraints in the European state. A vision of what society should be like and by which laws it should be governed clearly circumscribes the role and place assigned to ‘religion’, as seen in the Refah Partisi (the Welfare Party) v. Turkey. As noted above, this vision of society places duties on states. However, it is evident from recent case law that a number of duties with respect to the democratic and pluralistic society which the ECHR wants to safeguard are also ascribed to faith communities. Not only states have to promote and protect a democratic and pluralistic society. Faith communities and individual believers are also expected to embrace these societal ideals, at least in the sense that they must be ready to make certain concessions in their religious lives on account of these ideals.76 Freedom of religion or belief is thus given limits in the public space, limits that coincide with political objectives. As we shall see below, transgressions will affect the scope of the freedom of religion or belief. Of course, freedom of religion or belief has never meant protection as a carte blanche. As the Court has noted, not everything can count on being protected. To express one’s faith in public and not just in private is considered a vital part of the right to freedom of religion or belief. But all forms of societal and brotherly responsibility cannot be avoided by invoking freedom of religion or belief. Different forms of subversive activity and violation of other people’s rights have, since the birth of the convention, constituted legitimate grounds for limiting the freedom of religion or belief.77 Restrictions on so-called religious symbols or signs worn by individuals have for example been found justifiable in the past. In the decision on application Karaduman v. Turkey, for example, the European Commission of Human Rights 75. See e.g. Pamela Slotte, ‘Securing Freedom whilst Enhancing Competence: The “Knowledge about Christianity, Religions and Life Stances” Subject and the Judgment of the European Court of Human Rights’, 6 Religion and Human Rights (2011) 41–73 at 50–52. 76. See, e.g., Refah Partisi (The Welfare Party) v. Turkey [GC], at para. 99, as well as Leyla Şahin v. Turkey [GC], at para. 108: ‘Pluralism and democracy must also be based on dialogue and a spirit of compromise necessarily entailing various concessions on the part of individuals or groups of individuals which are justified in order to maintain and promote the ideals and values of a democratic society.’ 77. See ECHR, Article 9, as well as Article 17, supra note 22: ‘Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.’ See also Evans, ‘Freedom’, supra note 46, at 303.

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upheld a ban on headscarves that resulted from dress regulations at a Turkish state university. The applicant had not been issued a provisional certificate for her bachelor’s degree, as she had not supplied an identity photograph that met the university’s requirements, namely, that her head be uncovered.78 In X v. Austria, it was deemed necessary for the protection of public order to prohibit a Buddhist prisoner from growing a beard as prescribed by his faith. It was claimed that the prohibition was needed so as to be able to identify him.79 However, while the case of Karaduman v. Turkey did raise issues of secularism and respect for others, what critics point out today is something that they see as a new and ominous feature, and as a serious distortion of the structure of individual protection since it suggests that failing to respect the principle of secularism might deny an activity of its very character as a manifestation. A system of human rights protection of religious belief which fails to embrace manifestations which challenge secularist approaches to public life is a truncated vision of the religious freedom.80 The increasing interest in the societal values and the views of society professed by believers and faith communities seems to have repercussions on what the Court emphasizes in cases where specific state action should be on trial. A certain attitude is exposed as less desirable. A high-profile case in this respect is Leyla Şahin v. Turkey. [T]he Court considers this notion of secularism to be consistent with the values underpinning the Convention. … An attitude which fails to respect that principle will not necessarily be accepted as being covered by the freedom to manifest one’s religion and will not enjoy the protection of Article 9 of the Convention.81

Thus, while in its case law the Court has observed that freedom of religion or belief forms a foundation for the kind of society that the ECHR seeks to enhance,82 it declares in the quotation that an attitude (which is a vague phrasing) 78. Karaduman v. Turkey, Application no. 16278/90, European Commission of Human Rights, Decision (3 May 1993), 74 Decisions & Reports 93. 79. X v. Austria, Application no. 1753/63, European Commission of Human Rights, inadmissibility decision (15 February 1965), 8 Yearbook (1965) 174. 80. Evans, ‘Freedom’, supra note 46, at 307. 81. Leyla Şahin v. Turkey (Grand Chamber), at para. 114. Here, the Court falls back on Refah Partisi (the Welfare Party) v. Turkey (Grand Chamber), at para. 93, which in turn, as Malcolm D. Evans observes, ‘itself draws on a line of authority articulating this position stretching back to Kalaç v. Turkey,’ at para. 27. Evans, ‘Freedom’, supra note 46, at 307 (fn. 46). 82. Kokkinakis v. Greece, at para. 31; Buscarini and Others v. San Marino, Application no. 24645/94, European Court of Human Rights, Grand Chamber, Judgment (18 February 1999), at para. 34; Serif v. Greece, Application no. 38178/97, European Court of Human Rights, Judgment (14 December 1999), at para. 49. See also, e.g., Nieuwenhuis, ‘European Court’, supra note 57, at 503; Thorson Plesner, Freedom, supra note 32, at 259. This was the first case in which the Court found a violation of Article 9 independent of a violation of any other article of the ECHR.

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which does not respect the principle of secularism cannot automatically count on being protected under Article 9. The case of Leyla Şahin v. Turkey concerned whether Turkish authorities could legitimately refuse a female medical student the right to wear an Islamic headscarf at university on the pretext of wanting to safeguard the secular character of the public sphere. As in the case of the crucifixes in Italian public schools, we are dealing with a public institution and the part of the educational sector in which the question of freedom of religion or belief is said to be of particular importance. Another already mentioned high-profile case involving the same area of public life is that of Dahlab v. Switzerland. Here, the Court found, for example, that laïcité can be interpreted in such a way as to afford states a right to restrict the right of a civil servant to manifest his or her faith in his or her public office. The case concerned a primary school teacher who wore an Islamic headscarf. The Court concluded that prohibiting teachers from wearing ‘obvious’ religious symbols amounted to a restriction of the right to freedom of religion or belief. Nevertheless, Switzerland was deemed to have pursued a legitimate goal, as the aim of the prohibition was to guarantee the neutrality of basic public education, neutrality that was considered an expression of the state’s commitment to laïcité.83 In the case of Leyla Şahin, however, the Court did not decide how persons who, because of their professional role and public office, find themselves in a special position of authority may or may not express their faith. In such cases, the Court has accepted certain limitations that are stricter than for other people.84 83. Dahlab v. Switzerland. See also Martínez-Torrón & Navarro-Valls, ‘The Protection’, supra note 22, at 231; Thorson Plesner, Freedom, supra note 32, at 278. The Court also observed that the Islamic headscarf is a symbol that contradicts the value of equality between men and women, which state schools should be promoting. Religious peace is also among the reasons mentioned by Switzerland. The above-mentioned recent cases have been analyzed in a range of scholarly articles, from the perspectives of freedom of religion or belief, gender equality and women’s rights. See, e.g., Carolyn Evans, ‘The ‘Islamic Scarf ’ in the European Court of Human Rights’, 7 Melbourne Journal of International Law (2006) 52-73, Jill Marshall, ‘Conditions for Freedom? European Human Rights Law and the Islamic Headscarf Debate’, 30 Human Rights Quarterly (2008) 631–654, and Peter Cumper & Tom Lewis, ‘‘Taking Religion Seriously’? Human Rights and Hijab in Europe – Some Problems of Adjudication’, 24 Journal of Law and Religion (2008-2009) 599–627, for critical analyses of (among other things) the cases of Dahlab v. Switzerland and Leyla Şahin v. Turkey. For a detailed analysis of Leyla Şahin v. Turkey, which affirms the judgment, see Karima Bennoune, ‘Secularism and Human Rights: A Contextual Analysis of Headscarves, Religious Expression, and Women’s Equality Under International Law’, 45 Columbia Journal of Transnational Law (2007) 367–426. 84. See, e.g., Dahlab v. Switzerland; Kalaç v. Turkey, at para. 28; Başpinar v. Turkey, Application no. 45631/99, European Court of Human Rights, inadmissibility decision (3 October 2002); Engel and Others v. the Netherlands, Application no. 5100/71, 5101/71, 5102/71, 5354/72, 5370/72, European Court of Human Rights, Judgment (8 June 1976), at para. 57. The last three cases concern restrictions on the rights of various members of the armed forces.

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Instead, the case of Leyla Şahin concerns a student85 who refused to take off her headscarf in order to attend tutorials, lectures and examinations, as prescribed in a university circular. The Court nonetheless argued that Turkey acted within its margin of appreciation when it in this way sought to ‘preserve the secular nature of the institution concerned.’86 The special circumstances in Turkey, with its history of religious oppression and a majority of Muslims in the population, constituted reasons that led the Court to find that the general prohibition on the Islamic headscarf amounted to a legitimate restriction on the right to freedom of religion or belief.87 Critics of the judgment have noted that it seems to have been enough that Turkey referred to the principle of secularism in conjunction with the margin of appreciation that states are afforded as regards the interpretation of the right. No extensive analysis was made of the actual circumstances or of whether the social order and pluralism were actually at risk,88 even though Şahin herself stated that she embraced the principle of secularism and did not seek to undermine it through her actions.89 What the critics seek to highlight, I believe, is that the Court, by stressing the principle of secularism as it does, de facto reduces individuals’ space for expressing their faith in a different way than previously. This stress on secularity creates new sorts of obligations on private persons. The possibilities to limit the expressions 85. Judge Tulkens also pointed out this difference in status in his dissenting opinion. Leyla Şahin v. Turkey, at para. 7 (Dissenting opinion of Judge Tulkens). 86. Leyla Şahin v. Turkey (Grand Chamber), at para. 116. The ‘margin of appreciation’ refers to the space left to the discretion of states in the interpretation of the ECHR. Depending on the issue at stake, and the existence of a common understanding and practice among state parties to the ECHR, the scope of the margin of appreciation varies. However, the core idea is that national authorities are better placed to decide how to balance rights and other ‘legitimate’ concerns, such as the protection of morals or other people’s rights. As the Court noted in the case of Handyside v. the United Kingdom, which concerned the freedom of expression and the protection of morals: ‘By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements [of morals] as well as on the ‘necessity’ of a ‘restriction’ or ‘penalty’ intended to meet them.’ Handyside v. the United Kingdom, Application no. 5493/72, European Court of Human Rights, Judgment (7 December 1976), at para. 48. See generally, e.g., Yutaka Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Intersentia, 2002). 87. Thorson Plesner, Freedom, supra note 32, at 279. 88. Evans, ‘The Islamic Scarf ’, supra note 83; Evans, ‘Freedom’, supra note 46, at 307: ‘It is as if the appeal to secularism coupled with the margin of appreciation was enough.’ Apart from the Islamic headscarf, the prohibition also concerned beards. For an affirmative analysis of the judgment and a call for contextual approaches regarding questions of religious freedom and women’s human rights, see Bennoune, ‘Secularism’, supra note 83. 89. See Evans, ‘Freedom’, supra note 46, at 306, who gives an account of the views of Judge Tulkens. Similar critique can be found in Thorson Plesner, Freedom, supra note 32, Langlaude, ‘Indoctrination’, supra note 64, and Evans & Petkoff, ‘A Separation’, supra note 1, at 208, and among others by Jeremy Gunn and Cole Durham, whose views can be found at . The observation that there was a threat to public order is discarded as unfounded. Thorson Plesner, Freedom, supra note 32, at 300.

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of faith seem to have become more extensive, even though elsewhere the Court has emphasized that restrictions on the freedom to manifest religion ‘call for very strict scrutiny by the Court.’90 In a similar fashion, and in relation to this case, to the case of Refah Partisi (the Welfare Party) v. Turkey and to other cases, Ingvill Thorson Plesner has stated that the margin of appreciation of states seems to widen, both with regard to states’ justifications for why freedom of religion or belief needs to be restricted and with regard to the kinds of evidence that they need to present, because secularism and state neutrality are not among the legitimate reasons de facto listed in Article 9.91 However, Thorson Plesner here simplifies things. The understanding of ‘democratic society’ that influences the Court’s reasoning is necessarily more multifaceted and is built up around further notions than only the ones that are explicitly mentioned in Article 9 as legitimate reasons for restricting religious freedom. And an aim of this article is precisely to draw attention to such notions that shape the explication of the very ‘reasons’ that are explicitly listed in Article 9, because this will offer an explanation of certain traits of current adjudication. In order to clarify why the Court decides as it does, we need to consider such shaping notions.

4.4. Irregularities in the Reasoning and Treatment of Believers However, critics not only disapprove of the way in which the Court’s current reading of the principle of secularism is reducing the space for expressing faith. They also claim that the Court is here treating believers unequally for no obvious reason. It is noteworthy how in Leyla Şahin v. Turkey, the Court, perhaps surprisingly, emphasizes that it is the responsibility of states to see that different groups respect each other, believers as well as non-believers.92 This may include that states limit the way beliefs take expression if such activity does not show due respect for other persons. States are not required to but may protect other persons ‘from forms of expression which failed to evidence ‘respect’ for the views of oth90. Manoussakis and Others v. Greece, Application no. 18748/91, European Court of Human Rights, Judgment (29 September 1996), at para. 44. See also, e.g., Parker, ‘The Freedom’, supra note 63, at 100–101, 104. 91. Ibid., at 121; Thorson Plesner, Freedom, supra note 32, at 289. 92. Evans, ‘Freedom’, supra note 46, at 308; Leyla Şahin v. Turkey (Grand Chamber), at para. 106. For similar reasoning by the Court, see also, e.g., the case of Dogru v. France, and the case of Supreme Holy Council of the Muslim Community v. Bulgaria. In this case, the Court noted that even if states are obliged to exercise their power in a neutral and impartial fashion, and state authorities generally ought not to intervene in internal matters, situations may arise in which a state has to intervene in internal matters for the sake of safeguarding religious tolerance and peaceful relations between different groups. If this takes place in a ‘neutral’ fashion, then freedom of religion or belief is not violated. Evans, ‘Freedom’, supra note 46, at 302 (fn. 33); Supreme Holy Council of the Muslim Community v. Bulgaria, Application no. 39023/97, European Court of Human Rights, Judgment (16 December 2004), at para. 77.

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ers (and particularly when such a lack of respect involved offensive portrayals of objects of religious veneration).’93 As noted earlier, respect for the rights of other persons is an established concept that influences the interpretation of the right to freedom of religion or belief.94 Thus, in this sense, the focus on intrapersonal respect is nothing new. What critics have taken note of, however, is how the evaluations of what are acceptable or what are not acceptable expressions of faith differ when there is a need to mediate the different interests, of society and of other believers and nonbelievers.95 Studying the case law, we can establish that Jehovah’s Witnesses may knock on other people’s doors provided they do not use ‘abusive, fraudulent or violent means,’96 and Salvation Army officers may wear a uniform in public, but a Muslim female student may not wear a headscarf at a Turkish university, nor Muslim schoolgirls during sport sessions in French public schools. Why is one thing clearly more problematic than another? It is significant in Leyla Şahin v. Turkey that the impact and proselytizing effect on those who had chosen not to wear a headscarf was brought up by the Court as a principal issue to consider with regard to educational institutions.97 The educational setting must be the decisive thing here, as elsewhere the Court has made a distinction between bearing (Christian) witness and improper proselytizing.98 On the other hand, as already noted, Şahin was a student at university among 93. Evans, ‘Freedom’, supra note 46, at 299–300, who here refers to Otto-Preminger-Institute v. Austria, Choudhury v. the United Kingdom, Application no. 17439/90, European Commission of Human Rights, inadmissibility decision (5 March 1991) and Larissis and others v. Greece, Application no. 23372/94, 26377/94, 26378/94, European Court of Human Rights, Judgment (24 February 1998). 94. See, e.g., Kokkinakis v. Greece, at para. 33; Refah Partisi (the Welfare Party) v. Turkey (Grand Chamber), at para. 91; Metropolitan Church of Bessarabia and Others v. Moldova, Application no. 45701/99, European Court of Human Rights, Judgment (13 December 2001), at para. 123; 97 Members of the Gldani Congregation of Jehovah’s Witnesses and 4 Others v. Georgia, Application no. 71156/01, European Court of Human Rights, Judgment (3 May 2007), at para. 134; Başpinar v. Turkey. See also, e.g., Parker, ‘The Freedom’, supra note 63, at 117; Thorson Plesner, Freedom, supra note 32, at 253–254. 95. Evans, ‘Freedom’, supra note 46, at 308. 96. Martínez-Torrón & Navarro-Valls, ‘The Protection’, supra note 22, at 223; Kokkinakis v. Greece, at para. 48. For an analysis, see, e.g., Javier Martínez-Torrón, ‘Libertad de proselitismo en Europa: A propósito de una reciente sentencia del Tribunal europeo de derechos humanos’, Quaderni di diritto e politica ecclesiastica (1994) 59–71; T. Jeremy Gunn, ‘Adjudicating Rights of Conscience Under the European Convention on Human Rights’, in Johan D. van der Vyver & John Witte, Jr. (eds), Religious Human Rights in Global Perspective: Legal Perspectives (Martinus Nijhoff Publishers, 1996) 305–330. 97. Leyla Şahin v. Turkey (Grand Chamber), at para. 111. 98. Kokkinakis v. Greece, at para. 48. See also, e.g., Manfred Nowak & Tanja Vospernik, ‘Permissible Restrictions on Freedom of Religion or Belief ’, in Tore Lindholm et al. (eds), Facilitating Freedom of Religion or Belief: A Deskbook (Martinus Nijhoff Publishers, 2004) 147–172 at 160–161.

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fellow adult students, and not a primary school teacher like Dahlab, for example. In Dahlab v. Switzerland, the Court emphasized the possible proselytizing effect the headscarf might have on young pupils. To complicate matters even more, however, we have seen that the Court in the first judgment in the Lautsi case makes reference to this observation in the Dahlab case and then in the Grand Chamber judgment it distances itself from that very case and notes that crucifixes on public school walls are essentially passive symbols and that it does not see it as its task to judge whether the presence of crucifixes in Italian public schools is compatible with the principle of secularism expressed in the Italian constitution. This is, of course, not to say that clothing and various other visible signs of religious belonging cannot become symbolic carriers of political meaning.99 But, unsurprisingly, the critics draw attention to a range of irregularities in the Court’s reasoning and its manner of dealing with issues concerning freedom of religion or belief.100 In the case of the Moscow Branch of the Salvation Army, where the issue of the uniform that Salvation Army officers wear came up, the Court did not emphasize the demand for state neutrality and impartiality as regards the organization of religious life in a way that undermines the individuality of the case.101 Instead, the Court followed its established way of reasoning when it stated that what is at stake is the practice of religion by individuals, whereby the task of the Court is to decide whether the state’s interventions in freedom of religion or belief are legitimate. The Court found that Russia could not present acceptable reasons in support of its actions. In the case of Şahin, as we have seen, this was not the case.102 In his critique, Malcolm D. Evans concludes that the Court should be able to distinguish between two questions: on the one hand, how the relationship between the religious and the secular, in the meaning of a faith community and the state, should be regulated, and on the other hand to what individuals have a right. Clearly, these two questions are interlinked. However, each should be dealt with in a different way.103 Neutrality is potentially a more prominent 99. See, e.g., Bennoune, ‘Secularism’, supra note 83, at 387–392. 100. See, e.g., Evans & Petkoff, ‘A Separation’, supra note 1, at 213–214. 101. Evans notes that one instead talks in terms of ‘the state being a neutral and impartial organiser of religious life.’ This, he observes, is more suitable for an ‘‘individual rights’ approach’. Evans, ‘Freedom’, supra note 46, at 311. See also the Moscow Branch of the Salvation Army v. Russia, Application no. 72881/01, European Court of Human Rights, Judgment (15 October 2006), at para. 58; Church of Scientology Moscow v. Russia, Application no. 18147/02, European Court of Human Rights, Judgment (5 April 2007), at para. 72. 102. Evans, ‘Freedom’, supra note 46, at 311. 103. Obviously, what forms the core of a court case is the question of what is at stake. In the case discussed above, as in the high-profile cases of Leyla Şahin and the Metropolitan Church of Bessarabia, the respondent state claimed that national identity was at stake, as did Italy in the Lautsi case. In these two cases, the applicants in turn claimed that what was at stake was the practice of faith. Evans, ‘Freedom’, supra note 46, at 309–310, and 309 (fn. 55); Leyla Şahin

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feature of the first question. With regard to the second question, the Court should decide in each case whether a state has acted correctly when it limits an individual’s freedom.104 For her part, Thorson Plesner points out that from the perspective of religious freedom there is a discernible shift in the understanding of what it means to treat different faith communities correctly as a state. Today equal treatment presupposes a clearer rejection of such public expressions of faith, which could indicate close relationships between a state and a specific ‘religion’,105 as also suggested by the first Lautsi judgment but not the judgment by the Grand Chamber. Greater importance is attached to what Thorson Plesner has called ‘state or public freedom from religion.’106 The Court moves away from the strong protection of forum externum and freedom of religion or belief in the public sphere.107 However, Thorson Plesner notes that total separation of state and religion, in the sense of disestablishment and privatization of religion, may not necessarily be desirable from a human rights perspective108 as it profoundly affects the possibilities that individuals have for expressing their beliefs. The same point has been made by Danchin: This seeming paradox is explained by Cole Durham’s thesis that both strong positive identification of church and state … and strong negative identification of church and state … correlate with low levels of religious freedom. This is because in both situations, ‘the state adopts a sharply defined attitude toward one or more religions, leaving little room for dissenting views.’109

Now, to sum up section 4, it may partly be the case that as discussed in subsection 4.2 we are dealing with ‘more privatization’ of faith with regard to v. Turkey (Grand Chamber), at para. 85; Metropolitan Church of Bessarabia v. Moldova, at para. 114. Similarly, Lautsi claimed that she and her sons had a right to have their convictions respected. The Court itself decides on one of the opposing explanations. This is its task. It is interesting that in all three cases, the secular narrative is given precedence, in the cases of Leyla Şahin and the Metropolitan Church of Bessarabia to the benefit of the state, and in the Chamber judgment of Lautsi to the benefit of the applicant, although this judgment was later overturned. 104. Evans, ‘Freedom’, supra note 46, at 309. For a detailed study of how state ‘neutrality’ can be either an advantage or a disadvantage when seeking to safeguard freedom of religion or belief, see Thorson Plesner, Freedom, supra note 32. 105. See, e.g., Ibid., at 55. However, at the same time as the distinction between the state and faith and the influence of ‘the religious’ on ‘the secular’ is emphasized, we have seen that states are expected actively to interfere in the lives of faith communities and believers if it is in society’s best interest or if it is safeguard others’ rights. 106. Ibid., at 60. 107. Ibid., at 288. 108. Ibid., at 311. 109. Peter G. Danchin, ‘Religion, Religious Minorities and Human Rights: an Introduction’, in Peter G. Danchin & Elizabeth A. Cole (eds), Protecting the Human Rights of Religious Minorities in Eastern Europe (Columbia U. Press, 2002) 1–29 at 3, quoting Durham, ‘Perspectives’, supra note 57, at 18.

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the disentanglement of governmental bodies from what is deemed ‘religious,’ for example, although the Grand Chamber judgment in the Lautsi case calls for some caution. However, as regards individual believers, to some extent I wish to interpret what is taking place as an affirmation of an already largely privatized notion of faith – regardless of the fact that the Convention sets out to safeguard religion in private and in public, as practiced alone or together with others. This would also explain why the increased stress on neutrality and secularism, in the Court’s reading of these notions, appears to affect different believers differently. This will be the topic for the remaining parts of this article.

5. A Systemic Bias? 5.1. Established Notions Put to the Test In this section, I will begin to offer a more profound explanation of the identified tendencies in the Court’s reasoning. I want to suggest that what is said today to be a mix-up of two different questions in the European human rights context – how the relationship between the religious and the secular, in the meaning of faith communities and the state, should be regulated, and on the other hand to what individuals have a right – is in fact two sides of the same coin. Along the lines of my earlier observations (section 4.1), critics have noted that the Court seems to rely on a so-called postreformational, almost ‘pietistic’ understanding of religion. Religious faith is characterized as something largely private, individual and voluntary. Faith is a personal matter. For the most part, religious faith is understood as being analogous to various kinds of intellectual convictions.110 This influences the perception of the societal ambitions of religious life-views. The understanding of faith goes with a specific perception of society, a modern liberal perception.111 Culturally-historically, the expressions of faith that the Court has dealt with share a home with a view of society endorsed by the European human rights system.112 As I will claim, with reference to Cavanaugh, 110. Evans, Freedom, supra note 6, at 63, 75–76; Evans, ‘Freedom’, supra note 46, at 313. 111. See, e.g., Thorson Plesner, Freedom, supra note 32, at 378–379. With regard to the national level, Thorson Plesner observes that promoting liberal values may lead a state to promote a particular secular form of life. Ibid., at 380–381. 112. See, e.g., Evans, ‘Freedom’, supra note 46, at 314: ‘[M]ore communitarian-oriented religious traditions tend to challenge the state’s ordering of society in a manner which more individualistically focused religions do not. It is not an accident that Western Christianity has found it easier to cohabit plural liberal democracies than some other forms of religious traditions.’ Evans notes that H. Robertson, in his volume The Council of Europe: Its Structures, Functions and Achievements, mentions ‘‘‘the western Christian Church” as one of the six core principles underpinning the Council of Europe.’ Ibid., at 314 (fn. 69); Robertson is quoted in Steven Greer, The European Convention on Human Rights: Achievements, Problems and Prospects (Cambridge University Press, 2006) at 15.

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there is a shared history of ideas. That is why, until now, coexistence has been relatively straightforward. For a long time, freedom of religion or belief was not the focus of attention of high-profile legal cases.113 Thus, is it not necessarily true that the shift as regards secularism in the Court’s practice has occurred because certain of its own assumptions about faith have changed. Rather, we could read the shift as a response to a situation where its established notions of faith and society are being tested because the surrounding ‘religious landscape’ seems to be changing. It is therefore important to put the shift that can be observed in concrete case law, and the supposed contradictions or ‘mix-ups’ in the argumentation, in relation to political and societal changes. (And of course, it is not true that an earlier paradigm has been completely abandoned.) Malcolm D. Evans observes that there has been a latent tendency to a kind of secular fundamentalism, which has become more visible following the expansion of the Council of Europe eastwards.114 Other researchers have also attached importance to the new member states from Central and Eastern Europe.115 Besides this expansion, changes in the ‘religious landscapes’ of the old member states must also be noted, for example, as the result of migration. Thus, various Court cases present us with situations that challenge the familiar when it comes to the societal role of faith-based life-views. This is true both for the Court and for the member states of the ECHR which are forced to think through the ways in which societal life has been understood and organized. Here new situations bring out things that may have remained untouched or unquestioned because of the deep cultural character which stamps much religious identity in late modern Europe. Systemic prejudices and deeply rooted cultural praxis are exposed. It is not only that expressing one’s faith by means of certain headgear may be in glaring contrast to the way in which the majority population practices faith. The way societal life is regulated politically and legally may indirectly and implicitly give expression to the religious belonging of the majority population. National days of rest may follow the Christian calendar. Marriage law and family law bear 113. As noted earlier, the first case in which a violation of Article 9 was established was Kokkinakis v. Greece in 1993. Earlier judgments touched upon questions of freedom of religion or belief, but established a violation under another article, as in Kjeldsen, Busk Madsen and Pedersen v. Denmark. Alternatively, different situations have for various reasons been deemed inadmissible. See, e.g., Martínez-Torrón & Navarro Valls, ‘The Protection’, supra note 22, at 215; Thorson Plesner, Freedom, supra note 32, at 256. 114. Evans, ‘Freedom’, supra note 46, at 300. The members of the Council of Europe are members of the ECHR. 115. According to Martínez-Torrón and Navarro-Valls, it may be that freedom of religion or belief does not enjoy the same level of protection in the new member states, for which reason the Court dedicates more attention to this freedom than has previously been the case. MartínezTorrón & Navarro-Valls, ‘The Protection’, supra note 22, at 215.

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traces of Christian ideas.116 Such arrangements seldom cause major problems for majority churches. However, from the perspective of a minority community whose practices are ‘socially a-typical’, such situations may present a challenge. How are these challenges typically dealt with? It is not necessarily the case that these issues are explicitly addressed in the manner in which I do here, by thinking about the ways in which something is designated ‘religious’ or ‘secular’ when societal life is imagined and organized. (Essentially, however, this is what it is about when for example the question arises as to what belongs to whose area of competence.) Instead, when the issues do become a topic of discussion, the discussion largely centers on whether there is a need for different kinds of special arrangements or exemptions and how these should be regulated in law.117 Following up on earlier remarks (section 4.2), when such issues are raised in a human rights context in relation to national legal arrangements, they are frequently framed in terms of direct or indirect discrimination. Legal arrangements that guarantee formal equality, for example, may have affects that are de facto undesirable.118 We may speak of indirect restrictions on freedom of religion or belief.119 A further and interrelated way of addressing these issues within the human rights discourse is to discuss them explicitly in terms of majority and minority rights.120 With reference to the ideas of Javier Martínez-Torrón and Rafael Navarro-Valls, it could be argued that addressing issues of religious freedom by way of discussing discrimination in the above way may result in more favorable conditions for different faith communities. National arrangements from which only a certain (majority) community has previously benefitted are possibly rearranged in a way that is advantageous to other communities as well. This is a way to safeguard 116. Thorson Plesner, Freedom, supra note 32, at 377. Christoffersen speaks of ‘the common unconscious’ in order to capture the influence of Judeo-Christian norms or ideas on the legal systems in Nordic societies. The influence of these norms or ideas on the legal systems has possibly been almost entirely forgotten, but a result of challenges seen to follow as a result of increasing societal manifoldness the influence once more becomes a topic for discussion. Christoffersen, ‘Intertwinement’, supra note 57, at 112. 117. Martínez-Torrón & Navarro-Valls, ‘The Protection’, supra note 22, at 236. The extent to which antidiscrimination laws are applicable in relation to job appointments in faith communities is one example that de facto concerns both majority and minority communities. 118. Cf. Thorson Plesner, Freedom, supra note 32, at 306–307. 119. Martínez-Torrón & Navarro-Valls, ‘The Protection’, supra note 22, at 232. 120. See, e.g., Thorson Plesner, Freedom, supra note 32, at 378. For a short overview and a discussion of the debate about the necessity of ‘group-specific’ rights for the advancement of freedom of religion, for instance, see also, e.g., Peter G. Danchin, ‘Suspect Symbols: Value Pluralism as a Theory of Religious Freedom in International Law’, 33 Yale Journal of International Law (2008) 1–61 at 37–44. It is noteworthy that the development of the concept of a minority can be historically located in the same post-reformational course of events as the concept of religion that appears in the reasoning of the Court and hence, also relates to the notion of society that developed at the same time (more on this below). Cf. Asad, Formations, supra note 17, at 174.

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state ‘neutrality’.121 Nonetheless, this emphasis on state neutrality may effectively restrict the freedom of individuals and groups if attention is not given to the potential indirect limitations of various ‘neutral’ arrangements. Importantly, the Court has also been criticized for not giving sufficient consideration to indirect limitations through ‘neutral, secular’ legislation and the far-reaching consequences this may have for people ‘who believe differently’.122 The Court has done a better job at highlighting and condemning religious intolerance, for example, the way a majority church exercises influence through the state apparatus, than so-called secular intolerance.123 In section 4, I made several critical observations concerning the Court’s seemingly strong positive position on secularism, ending with a discussion of irregularities in the reasoning of the Court that critics have highlighted. The accusation of blindness regarding ‘secular intolerance’ seems to draw attention to these difficulties with the Court’s position too.

5.2. A Defense of Established Understandings of ‘Religious’ and ‘Secular’ What the critics point out could be explained as follows: The cases that have been analyzed in this article expose systemic prejudices, as are also found among the member states. What we encounter in the reasoning of the Court could be read as a ‘defense’ of the prevailing understanding of how the religious and the secular are distinguished and which, as I remarked above, depends on a postreformation notion of faith. This understanding has come to occupy something of a self-evident and central position when the Court interprets how faith takes and may take expression. As repeatedly noted, the distinctions between public and private and forum internum and forum externum makes it possible to render different interpretations of what is within someone’s area of competence. In the cases discussed in detail in this article, it is clear that what is presumed is that ‘the state has no direct role to play in the religious life of believers,’124 and the same forbearing position is assumed of faith communities. They should abstain from asserting influence on public power. The modern notion of religion as a separate sphere of societal life is maintained. Religion is not something that is linked to or should intersect with economic, legal, and political structures. Faith is largely a private matter and respected by safeguarding the private space.

121. Martínez-Torrón & Navarro-Valls, ‘The Protection’, supra note 22, at 237. 122. Ibid., at 230–234. 123. Ibid., at 237. Several cases of this kind have concerned the strong position of the Orthodox church of Greece and the way in which Jehovah’s Witnesses have been subjected to unfair treatment. 124. Evans, ‘Freedom’, supra note 46, at 300.

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In the prevailing, partly novel situation, this understanding is challenged and along with it, the way of conceptualizing the place of faith in societal life. Unconsciously (perhaps), the need arises to tend to ‘one’s own’.125 The Court will not necessarily recognize a situation as giving rise to an issue of secular indirect discrimination, for example. For in the cases concerned, such recognition would in effect mean questioning the presumed ‘neutrality’ of notions and structures that make up the very heart of the modern democratic state that it cherishes. This (defensive) attitude on part of the Court seems to have become seasoned with insecurity and prejudice, as different judgments have been made in cases that largely resemble each other. It is enough to look at the cases discussed in earlier sections. While the Court finds it nonsensical to argue, as Russia does in the case of the Moscow Branch of the Salvation Army v. Russia, that the Salvation Army uniform presents a threat to national security, the same Court agrees with Turkey that such a threat is real in the case of Şahin’s headscarf. In Şahin’s case, the Court identified a faith that aspires to regulate more of human life than is customary in societies characterized by more private and individual forms of religiosity. Larger claims that threaten modern notions of the role of state authorities and the character of the public space are read into the headscarf, which becomes a symbol for these pretentions.126 The Salvation Army uniform, on the other hand, symbolizes something familiar and safe. By all accounts, faith is manifested in a way that accords with the Court’s notions of faith and of societal life. Likewise, the reproduction in the Grand Chamber judgment in the Lautsi case of lengthy excerpts of the reasoning of Italian courts fleshing out how the modern secular state can trace its foundations, among other things, to Christianity signals something to the same effect. Italian Catholicism does not present a threat to the modern democratic secular state. By contrast, cases like those of Şahin and Dahlab or Refah Partisi leave the observer with the impression that the Court seemingly finds that established models for envisioning ‘religion’ in the public space and for dividing competences between spiritual and temporal powers are being called into question. Therefore, an individual public school teacher wearing a headscarf is more ‘problematic’ than an institutionalized practice of placing crucifixes on the walls in public schools. This stance is also noticeable in the linguistic framing of the issue. We have already seen how the Grand Chamber judgment in the Lautsi case is framed. 125. That something has come to constitute a self-evident presupposition that guides one’s understanding of life does not necessarily mean that this has to be taken as an expression of intolerance. However, as we shall see, theorists want to highlight a kind of unwarranted bias here. That they acknowledge a bias as unwarranted is naturally a consequence of their perspective on what is acceptable and unacceptable. 126. For an in-depth analysis of stereotypical notions articulated by the Court in this case and in Dahlab v. Switzerland, see Evans, ‘The Islamic Scarf ’, supra note 83.

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In the case of the Salvation Army, the Court did not emphasize the demand for state neutrality and impartiality with regard to the organization of religious life. Instead, in accordance with the position that has been called liberal secularism, the Court concluded that the issue concerned the practice of faith of individuals and groups of individuals, and its task was to decide whether the state’s interference with the right to freedom of religion or belief was legitimate. The case of Şahin, however, was sooner dealt with in terms of democratic values, brotherly respect, state neutrality and secularism. As critics have pointed out, the focus shifted from the potential specific violation to a more general level that concerned the challenges facing the kind of ‘democratic society’ that the ECHR presumably wants to safeguard. Obviously, it is worth noting that the central role played by the notion of a plural democratic society can play out to the benefit of believers in case the Court concludes that state action challenges this notion. Peter Cumper and Tom Lewis have found that if a religious group or an individual can present their actions and expressions of faith as contributing ‘in a tangible way to the preservation of political democracy,’ the margin of appreciation afforded to states is narrower.127 However, this actually just goes to prove the point I am here trying to make. It is at this point that Evans, Thorson Plesner and others criticize the Court for turning into a voice for secular fundamentalism or secular intolerance. The Court considers it necessary to restrict the ways in which faith may be expressed 127. Cumper & Lewis, ‘Taking Religion Seriously’, supra note 83, at 618. In the case of Gündüz v. Turkey, decided under Article 10, the Court found a violation of the right to freedom of expression of a Muslim religious leader, who in a debate in a television program used harsh words to criticize the secular regime in Turkey and the concepts of secularism and democracy and called for the introduction of sharia. Gündüz was charged with incitement to religious hatred. He was fined and sentenced to two years of imprisonment. Gündüz v. Turkey, Application no. 35071/97, European Court of Human Rights, Judgment (4 December 2003), at paras 10–11, 13–15. The Court ruled that Turkey had violated Article 10. It concluded that while Gündüz did propagate sharia, he did so in peaceful terms. Moreover, Gündüz had expressed his views ‘in the course of a pluralistic debate in which [he] was actively taking part.’ Ibid. at para. 51. See also Cumper & Lewis, ‘Taking Religion Seriously’, supra note 83, at 624–625. As Cumper and Lewis observe, this is ‘exactly the sort of activity which the Court maintains is a foundation of a democratic society, and is thereby vital for the effective protection of human rights.’ Ibid. at 625. In the name of democracy, states should promote rather than suppress such activity. The reasoning in the cases of Gündüz and Şahin seem contradictory. As Judge Tulkens noted in Leyla Şahin v. Turkey: ‘Thus, manifesting one’s religion by peacefully wearing a headscarf may be prohibited whereas, in the same context, remarks which could be construed as incitement to religious hatred are covered by freedom of expression.’ Leyla Şahin v. Turkey [GC], at para. 9 (Dissenting opinion of Judge Tulkens). Likewise, Cumper and Lewis observe that the Court in Moscow Branch of the Salvation Army v. Russia emphasized that ‘religious associations … were important for democracy to function properly.’ Cumper & Lewis, ‘Taking Religion Seriously’, supra note 83, at 621. See also Moscow Branch of the Salvation Army v. Russia, at para. 61. By refusing to register the religious community in question, Russia had overstepped its margin of appreciation.

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in order to safeguard tolerance between different religions, as well as to safeguard diversity. The Court emphasizes secularism in the name of pluralism. Here, the Court fails to see how, through the position it takes, it sustains a particular understanding of the public sphere, nearly ‘sanitising’ this sphere of all traces of religion. The Court carefully considers which expressions of faith are welcome in this sphere,128 as happens when it decides whether or not religious or nonreligious (atheist) symbols are to be allowed in public schools. This may seem like a rather radical view of what state neutrality demands from the perspective of religious freedom, in particular when those, whose manners are being limited are private pupils and students. Finally, because of this seemingly radical view, the question remains as to whether this stance as regards state neutrality despite everything could influence the assessment of traditional state-church arrangements (as concrete interpretations of secular-religious), which until now has been considered in compliance with the ECHR.129 Because of the kinds of cases that the Court now decides on and the kinds of emphases therein, the focus shifts in a new way towards older member states and arrangements which may not have attracted much attention earlier.130 The way neutrality is emphasized in newer case law could be read as indicating that the Court, at least, does not view traditional arrangements with an ‘established church’, for example, as optimal from the perspective of religious freedom, even if the Court does not consider them problematic.131 In an article written before the two judgments in the Lautsi case, Malcolm D. Evans went as far as to argue that the Court’s emphases could be likened to a sweeping aside of existing European realities, different state-church arrangements, 128. Evans, ‘Freedom’, supra note 46, at 312. In a similar fashion, Roger Trigg mentions this sort of sanitizing of the public sphere. He sees Christian roots in such endeavors. Trigg, Religion, supra note 50, at 88. 129. Nieuwenhuis, ‘European Court’, supra note 57, at 502. This question is also raised by Evans, ‘Freedom’, supra note 46. 130. The crucifix case as well as the case of Folgerø and Others v. Norway, which concerned integrated religious education in public schools, may be taken to imply that in a different way than before, national arrangements in old member states may attract attention in terms of ‘religion’ instead of in terms of ‘culture’, for example. In these mentioned cases, the nature of school activities is reassessed. What is not seen as necessarily outspokenly religious, but rather as expressive of cultural heritage and tradition becomes the topic of debate with regard to its character. Majority religion may be present in law and public institutions in a symbolic form to such an extent that people adhering to minority views come to consider this offensive. Courts of law provide a space for contestation where the issue is framed as a potential case of violation of someone’s freedom of religion or belief. Pamela Slotte, ‘A Little Church, a Little State, and a Little Commonwealth at Once: Towards a Nordic Model of Religious Instruction in Public Schools?’, Lisbet Christoffersen et al. (eds), Law & Religion in the 21st Century – Nordic Perspectives (Copenhagen: Djøf Publishing, 2010) 239–273 at 255. 131. Thorson Plesner, Freedom, supra note 32 at 271, 286. For terminology and description of ‘established church’, see, e.g., ibid., at 75.

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and thereby a fundamental element of the national identity of many member states.132 As we have seen with regards to the Grand Chamber judgment in the Lautsi case, several third-party interveners made this point. The Court would interfere with the cultural identity of Italy if it prohibited crucifixes in Italian state schools. If the judgment in the first Lautsi case was not overturned, the Court would set an unacceptable precedence. The Grand Chamber judgment in the Lautsi case then seems to accord with another observation that Evans has made in an article written with Peter Petkoff. In that article, the authors argue that cases such as Refah Partisi (the Welfare Party) v. Turkey and Leyla Şahin v. Turkey show the Court ‘protecting the establishment status quo, be it religious or secular in orientation,’ while other cases concerning ‘registration of religious communities and their right to access to a juridical person status’ indicate a willingness on the part of the Court to protect such communities from state interference. The difference in treatment is identified as the one mentioned previously in this article; the former cases are considered to deal with conduct that is ‘at odds with the very foundations of what the ECHR considers to be the relevant societal paradigm’. The focus is on the interests of society rather than on those of believers.133 What is more, as the Grand Chamber judgment in the Lautsi case indicates through the lengthy excerpts on historical developments, if the Court upholds an expression of religious establishment, it must be because it is not considered at odds with the modern secular plural democratic state.

5.3. Bringing About Justice There is of course something self-evident about the idea that society should be organized so as to benefit everyone. It is likewise hard to question abstract values such as tolerance, respect, and pluralism, which are emphasized in the European human rights discussion and in case law and have come to form an element of current attempts to determine what characterizes a desirable society. It is, however, another thing to identify what is actually understood by these notions. What has to be kept in mind, and what the discussion makes clear is that, as Malcolm D. Evans notes: ‘these values are not neutral: they are vehicles of the legitimation of a very real set of assumptions concerning the proper reach of religion in the public sphere.’134 This does not mean that the Court would not explicitly seek ‘justice’ in freedom of religion cases. Moreover, it is likely that one party in a court case will believe that the judgment brings about justice. The situations brought before the Court are those in which the interpretations conflict, where the applicants question a national arrangement as simply an expression of ‘culture’, for example. Sometimes 132. Evans, ‘Freedom’, supra note 46, at 303. 133. Evans & Petkoff, ‘A Separation’, supra note 1, at 213. 134. Evans, ‘Freedom’, supra note 46, at 313.

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the position of the applicants may coincide fairly well with the understanding of the role of religion and the state action promoted by the Court. Such was the case in the first judgment in Lautsi v. Italy. Because of its diversity, the ‘religious landscape’ addressed by the Court displays both similarities and dissimilarities with respect to the conceptualizations of religion transmitted through case law. Sometimes it is the respondent state that is deemed to be right, as in the Grand Chamber judgment in Lautsi v. Italy. In any case, one party will argue that justice has been done, while the other party can, in the best of cases, accept and live with the outcome. However, it seems that the parameters directing the Court in its reasoning in a specific case affects the sense in which we can say that justice is done and for whom. According to Malcolm D. Evans, the way in which human rights are conceptualized today seems to privilege certain forms of faith at the expense of others. Mainstream religious traditions profit more from human rights’ protection than newer, fringe faiths. What’s more, a dividing line separates the so-called more individual, ‘pietistic’ faiths and the faiths and other life-views of more communitarian kind that challenge ingrained societal patterns. The stances taken accordingly are expressive of a structural bias.135 In a similar fashion, MartínezTorrón and Navarro-Valls observe: The negative side of the Strasbourg case law … is the inclination towards enshrining the absolute supremacy of ‘neutral’ laws over the rights of individual conscience. The effects of this approach are harmful, not only for individuals, but also for those minority religious groups that defend moral values that do not fully correspond to the Western heritage – i.e., the values of the Judæo-Christian tradition, amalgated with other values typical of secularism.136

Naturally, the Court explicitly attempts to protect a democratic pluralistic society of which human rights constitute a fundamental part. It would furthermore be absurd to argue that the Court is ignorant of the way in which, in its capacity as a European institution, it manages a particular political legacy (with simultaneous universal aspirations137), if one can put it in those very general terms. Yet at the same time in another sense the Court does not seem to take into account the historical background of prevailing thought patterns or how a particular notion of faith has affected and is bound up with a particular understanding of society.138 135. Ibid. See also Evans, Freedom, supra note 6, at 57–59; Evans & Petkoff, ‘A Separation’, supra note 1 at 214; Cumper & Lewis, ‘Taking Religion Seriously’, supra note 83, at 605–607. 136. Martínez-Torrón & Navarro-Valls, ‘The Protection’, supra note 22, at 237. For an overview of ideas about European ‘religiosity’ among sociologists of religion, see e.g. Sigurdson, Det postsekulära, supra note 21, at 31–40. 137. To speak in terms of human rights is to allude to some kind of general applicability and universality. 138. As Charles Taylor observed in a different context, what are considered neutral models are in reality expressive of a hegemonic culture that forces minorities to adopt alien forms. Values

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Instead the Court seems to presume that its modes for dealing with ‘religion’ are somehow neutral and that Islam is a faith which explicitly holds more political and societal ambitions than, for example, Protestantism or Italian Catholicism.139 With the last remark, I have already anticipated a theme of the last part of this article. Theorists have suggested various solutions to the problems of the Court identified here. Rather than discuss these suggestions, I will return to the distinction between belief and action that is fundamental to the way in which human rights law identifies freedom of religion or belief. Because of its fundamental character, this distinction does not necessarily receive much attention from jurists.140 Instead it is taken for granted as a necessary component of the legal reasoning. In a way, the distinction is also indispensable to the discourse being conducted today. However, as I will argue with reference to Cavanaugh, the distinction is not neutral with regard to the phenomenon of religion, but can be taken as expressing a certain modern notion of religion (in line with its ‘home’ in international law as a ‘modern’ phenomenon). I therefore want to claim that what makes the question about state supervision and regulation more difficult than simply extending legal protection to be more ‘inclusive’ than it currently is and unmasking direct or indirect discrimination is that what is challenged are deep levels of the self-image of modern European societies. These societies have (political) structures that mirror profound historical relationships and an affinity between religio and polis, even if these societies are naturally different and the linguistic framing today may be of a more ideological kind with watered-down religious connotations. Studies have shown that this affinity between traditional local faith and politics and legislation can be traced all the way back to fundamental parameters in the discourses of law and politics. A suggestion for this kind of historical reading of the roots of today’s discussion of religion can be found in Asad and Cavanaugh, for example, whose ideas I will present next.

embraced by the majority culture affect legislation and political decision-making. Charles Taylor, ‘The Politics of Recognition’, in Amy Gutman (ed.), Multiculturalism (Princeton University Press, 1994) 25–73 at 43; Thorson Plesner, Freedom, supra note 32, at 42, 349. 139. Cf. Martínez-Torrón & Navarro-Valls, ‘The Protection’, supra note 22, at 227 (fn. 66); ‘This [Refah Partisi (The Welfare Party) v. Turkey] is not the first time that the Court has alluded to the difficulties of making some parts of the Islamic religious message compatible with the Western concept of democracy.’ A further example mentioned here is Dahlab v. Switzerland. Although, we could, by drawing on Cavanaugh, ask if any ‘communitarian’ or other public manifestations of faith, whether Catholic, Protestant, Jewish, Muslim, et cetera, falls short in light of modern liberalism. The post-Reformation development, for Cavanaugh, does not amount to an exclusively pro-Protestant orientation by the modern state. 140. For a recent article that does problemize this distinction, see Cumper & Lewis, ‘Taking Religion Seriously’, supra note 83.

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6. A Reading of the Genealogy of the Discourse 6.1. A Modern Understanding of the Concept of Religion In this section, I will broaden the perspective on how the religious and the secular are divided in European human rights discourse. I will proceed by briefly relating the discourse to ideas about the history of modern law and the way in which international law forms part of a modern project in which ideas of how faith should be protected develop concurrently with a certain notion of society, a certain view of man, and a certain understanding of faith. I will limit myself to presenting a short reading of this discussion through Cavanaugh. Cavanaugh adopts a perspective on the religious and the secular that resonates with other recent readings of the dichotomy in theology and social sciences, yet he also gives a perspective on modern law that is not without equivalence in legal studies.141 What unites Cavanaugh and other authors mentioned in this section is that, in some respects, they seek to clarify and unsettle a liberal Enlightenment account of history. The understanding of faith-based and other views of life that appears when we study how the Court decides on questions of faith, the exercise of faith, and the legal limits to this exercise bears a resemblance to what Cavanaugh identifies as a modern understanding of the concept of religion. The roots of the understanding of religion and of the religious that influences today’s human rights language use can, according to Cavanaugh, be traced back to the beginning of the modern era. Religion in modernity indicates a universal genus of which the various religions are species; each religion comes to be demarcated by a system of propositions; religion is identified with an essentially interior, private impulse; and religion comes to be seen as essentially distinct from secular pursuits such as politics, economics, and 141. Here I am reading Cavanaugh partly as a parallel to Asad, whose texts were sources of insight for Cavanaugh, as well as to texts by the Swedish theologian Ola Sigurdson. A reading of the religious-secular dichotomy in western, primarily European history is presented, including the ‘subjective turn’, which, to borrow Sigurdson’s terminology, can be observed in western society. Sigurdson, Det postmoderna, supra note 21, at 45. For a similar, comprehensive historical reading, see Taylor, A Secular Age, supra note 26. For an account of legal reasoning in the early modern (pre-Westphalian) era and how changes in the view of human subjectivity and the normative order of the universe influence the understanding of law, state sovereignty, and religious freedom, see Danchin, ‘The Emergence’, supra note 28. For a comprehensive study of the history of western law, which reveals the connections of historical legal configuration with contemporary faith movements, institutions and theological thought, see Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Harvard University Press, 1983); Harold J. Berman, Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition (Harvard University Press, 2003). It is worth noting that the theorists used here naturally differ in their thinking. In a way different from David Kennedy, whom I refer to below, Asad explicitly questions how far it is meaningful to make structural analogies between religion and law.

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the like. The rise of the concept of religion thus establishes Christianity’s proper sphere as the interior life, without direct access to the political.142

In his book, Cavanaugh critically considers the idea that religion is prone to violence. In a fundamental fashion, this idea has influenced modern western societal construction, for instance, with regard to restrictions on the role of churches in public life.143 The legal system occupies a central position in this ‘construction’. A secular character has been ascribed to the legal system. The relation between state and faith communities has been redefined. The narrative on which this understanding of society and characterization of religion and law rests is unsurprisingly the story – or the creation myth to borrow Cavanaugh’s words – of the religious wars and the Westphalian Peace as the moment when the modern nation-state was born. Modern international law emerges from the ruins of religious wars144. During this time the understanding of ‘religion’ changed. Religion increasingly came to be understood as a transhistorical and transcultural aspect of human life.145 The characterization of religion exhibited ever more clear cognitive, intellectualizing and privatizing features.146 We encounter a sort of belief that, much 142. Cavanaugh, The Myth, supra note 5, at 69–70. For a similar reading of how ‘religion’ is reduced to a phenomenon without a clear social body or a public voice, see Sigurdson, Det postmoderna, supra note 21, at 40–58. 143. Cavanaugh, The Myth, supra note 5, at 3. By the ‘West’, Cavanaugh alludes to the following: ‘I do not mean to imply that I think that such a monolithic geographical reality exists as such. The West is a construct, a contested project, not a simple description of a monolithic entity. The West is an ideal created by those who would read the world in terms of a binary relation between the ‘West and the rest’, in Samuel Huntington’s phrase. The point of my argument is, of course, to question that binary.’ Ibid., at 7, who refers to Samuel Huntington, ‘‘If not Civilizations, What?’’, 72 Foreign Affairs (November-December 1993) 186–194 at 192. 144. David Kennedy, ‘Primitive Legal Scholarship’, 27 Harvard International Law Journal (1986) 1–98 at 1–2; David Kennedy, ‘Images of Religion in International Legal Theory’, in Mark W. Janis & Carolyn Evans (eds), Religion and International Law (Martinus Nijhoff Publishers, 1999) 145–153 at 146–149. See also David Kennedy, ‘Losing Faith in the Secular: Law, Religion, and the Culture of International Governance’, in Mark W. Janis & Carolyn Evans (eds), Religion and International Law (Martinus Nijhoff Publishers, 1999) 309–319 at 313; ‘International law understands its birth as a flooding forth from the darkness of religious strife, antidote to the passions of faith, on guard against their re-emergence as ideology.’ 145. Cavanaugh, The Myth, supra note 5, at 3. This is, of course, a time-consuming process, and Asad notes that is only the anthropological and theological thinking of the nineteenth century that gives us the idea of ‘a’ religious essence. It is also this century that saw the coining of ‘secularism’ and ‘secularist’. Asad, Formations, supra note 17, at 23, 31. Sigurdson, for his part, notes that secularity and religion as ‘surface-concepts’ (ytbegrepp) or ‘general concepts’ (allmänbegrepp) must be dated to the nineteenth and eighteenth centuries respectively. Sigurdson, Det postmoderna, supra note 21, at 27, 49–50, 338. 146. William T. Cavanaugh, ‘‘‘A Fire Strong Enough to Consume the House:’ The Wars of Religion and the Rise of the State’, 11 Modern Theology (1995) 397–420 at 404. For a short characterization of the alterations that the understanding of the phenomenon of faith and its

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later, we glimpse in the reasoning of the Court and in the distinction between a forum internum and forum externum that is fundamental to understanding the content of the right to freedom of religion or belief. This concept of religion that coalesced was accompanied by the development of its twin, the secular sphere.147 In different ways, the two contrast with each other.148 A characteristic of the developing transhistorical and transcultural concept of religion was the idea of religion’s violent potential. Owing to this potential, the ability of religion – through the concrete embodiments of particular faith communities – to assume a societal position of power had to be restricted. Cavanaugh observes that here we encounter what has come to be regarded as ‘one of the foundational legitimating myths of the liberal nation-state’ in western societies.149 Herein are the foundations of the belief that the state has to be of secular character. And the state violence that this characterization makes possible is, in turn, also legitimized,150 namely, that the state must deal with the religious (as a feature of human life) and discover peaceful forms of coexistence. State violence is justified as legitimate over against so-called religious violence. Thus, the understanding of the modern democratic state and a modern understanding of religion developed through interaction. The concept of religion constitutes the alter ego of the modern democratic state. Here, the religious-secular distinction is accompanied by other distinctions, which in various ways, express the transformed concept of religion with which we are dealing. ‘[T]he concept of religion … is a development of the modern liberal state; the religious-secular distinction accompanies the invention of private-public, religion-politics, and state-church dichotomies.’151 Human life is relationship to society underwent during this time, see also, e.g., John Witte Jr., God’s Joust, God’s Justice: Law and Religion in the Western Tradition (William B. Eerdmans Publishing Company, 2006) at 38–41, Karl-Heinz Ladeur & Ino Augsberg, ‘Der Mythos vom neutralen Staat’, JuristenZeitung (2007) 12–17 at 12–14. A connection to epistemology can of course be found here. However, I will not dwell further on this large topic in this article. The critical settlement with religion that can be found among Enlightenment thinkers such as Voltaire and Locke, for example, was concerned with what they took to be misguided epistemological assumptions. Cavanaugh, The Myth, supra note 5, at 126–129. See also, e.g., Sigurdson, Det postmoderna, supra note 21, at 37–38. 147. Cavanaugh, The Myth, supra note 5, at 70. For an explanation of the different signification of religio in earlier times, see, e.g., Cavanaugh, ‘A Fire’, supra note 146, at 403–404; Sigurdson, Det postmoderna, supra note 21, at 48–50. 148. Cavanaugh, The Myth, supra note 5, at 123. According to Asad, different understandings of the religious and the secular replace each other throughout history. The ‘secular’ does not have only ‘one’ origin or even a stable history. What we can study historically is rather a series of particular oppositions. Asad, Formations, supra note 17, at 25. As mentioned above, Taylor, A Secular Age, supra note 26, provides a comprehensive study. 149. Cavanaugh, The Myth, supra note 5, at 3–4. 150. Ibid., at 123–130. 151. Ibid., at 59. In a colonial context, in the encounter with what is ‘foreign’, the Christian faith

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conceptualized as divisible into different sectors or aspects; to some are attributed a religious character and to others, a secular character. Politics and economy are considered to belong to the latter group. And slowly but surely the ‘practice of Christian religio’, as Cavanaugh calls it, loses the central position it had held in the western social order.152 The state is given charge of the secular (including political and economic) realm, of which the Court would be seen by Cavanaugh as a contemporary natural extension. As I noted earlier, Cavanaugh calls this narrative of religious violence a myth. He questions what he calls a ‘liberal narrative’ of how the nation-state came to put an end to the violence to which religious antagonism had given rise. The rise of the nation-state preceded the ‘religious wars’ and in fact contributed to those very societal upheavals and shifts of power153 that in turn contributed to the turmoil in sixteenth- and seventeenth-century Europe and the ‘disintegrating [Western] Christian nomos.’154 Elements of the state apparatus came to be sacralized according to a modern salvation narrative with the state as savior. ‘[T]he migration of the holy from the church to the state is plain to see.’155 Cult and liturgy contributed to the consolidation of new and different power structures,156 in relation to which the loyalty of subjects, independent of their religious conviction, was of utmost importance. What is at issue behind these wars of religion is the creation of ‘religion’ as a set of beliefs which is defined as personal conviction and which can exist separately from one’s public loyalties to the State.157

I will return to the centrality of loyalty below. For now, I wish to conclude that it is too simplistic to identify the contending parties in the wars in terms of self-evident religious categories. And despite the fact that the rising nation-states in early modern Europe secured and consolidated a certain autonomy with respect to church authorities, immediately after the wars ‘religion’ and ‘politics’, spiritual and temporal power, were not separated.158

is emphasized as coherent in character, marked by structure and rationality. 152. Ibid., at 70. 153. ‘These wars were not simply a matter of conflict between ‘Protestantism’ and ‘Catholicism,’ but were fought largely for the aggrandizement of the emerging State over the decaying remnants of the medieval ecclesial order.’ Cavanaugh, ‘A Fire’, supra note 146, at 398 154. The phrasing is borrowed from Danchin, ‘The Emergence’, supra note 28, at 478. 155. Cavanaugh, The Myth, supra note 5, at 178. 156. Ibid. 157. Cavanaugh, ‘A Fire’, supra note 146, at 403. 158. Cavanaugh, The Myth, supra note 5, at 132. See also Sigurdson, Det postmoderna, supra note 21, at 41, 338–339, who, like Cavanaugh, mentions absolute monarchies as later historical configurations in which ‘religion’ and ‘politics’ come close to merging.

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Drawing on Philip Gorski, Danchin notes that both state and church reconfigured their forms of regulating and controlling social life and interacted in relation to what are identified as shared concerns (res mixtae): [B]oth church and state ‘constructed new mechanisms of moral regulation (for example, inquisitions, visitations, consistories) and social control (for example, schools, poorhouses, hospitals). Neither purely religious nor strictly political, these institutions were rather res mixtae in which church and state interpenetrated one another to varying degrees. Nonetheless, these institutions could be and were eventually absorbed and appropriated by the state. Confessionalism thus forged a new ‘infrastructure of power,’ by which the state began to effectively penetrate social life for the first time.’159

State confessionalism (along the lines of cuius regio, eius religio) thus emerged as a means of state-building and consolidation of state power before, as Anthony W. Marx has noted, ‘confessional identity could be merged or converted into more secular cohesion.’160 These are, of course, general remarks. It did not mean the end to res mixtae, which to this day takes various forms. And, as emphasized here, a certain form of religious identity or non-identity accompanies even ‘secular cohesion’, as understanding of the ‘secular’ will necessarily rest on certain conceptualizations of ‘religion’. This historical reading also deepens the understanding of the Court’s perception of the Salvation Army (as familiar and safe). This Christian denomination does not, presumably, present a challenge to existing democratic political structures nor questions their characterization as secular. As noted, in modern European societies, Christian denominations and the State have traditionally cooperated in areas of shared concern. Charity work, in which the Salvation Army is deeply involved, is one such area. Such work on part of a denomination naturally finds a justification in faith and is seen as a manifestation of faith by the followers. Yet a history of fruitful cooperation in a certain area feeds into the Court’s understanding of the Salvation Army and its possible ‘political’ ambitions. The Salvation Army has a settled place in modern democratic society. These are some short excerpts from the historical readings presented by Cavanaugh to which I added observations by other authors. What is important to emphasize here is that this myth of religious violence has structured western notions of the world and society for a long time.161 The narrative has influenced 159. Danchin, ‘The Emergence’, supra note 28, at 484–485 (fn. 79), citing Philip Gorski, ‘Calvinism and State-Formation in Early Modern Europe’, in George Steinmetz (ed.), State/Culture: State Formations after the Cultural Turn (Cornell University Press, 1999) 147–181 at 147, 149. 160. Anthony W. Marx, Faith in Nation: Exclusionary Origins of Nationalism (Oxford U. Press, 2003) at 36. 161. Cf. Asad, Formations, supra note 17, at 25; ‘I take the secular to be a concept that brings together certain behaviors, knowledges, and sensibilities in modern life.’

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the self-image of modern law, if we can call it that. This has naturally found various expressions, and simplistic explanations should, of course, be avoided. But when it comes to human rights law, to which I will turn next, Talal Asad has noted that the law’s role in relation to ‘religion’ is to control and identify ‘the sacred’, and that human rights law can be seen as an integral part of the ‘modern project’ to ‘domesticate’, curb and disarm religion and through this, counteract societal disorder.162

6.2. Domesticating Religion In studying the Court’s reasoning, it is clear that this narrative is a ‘living’ memory that influences the understanding of the character of law, the role of law, and the view of society. Societal peace is a recurring theme in human rights case law and, more generally, in the discourse.163 International law creates spheres of freedom – forum internum and forum externum – but simultaneously decides what this freedom entails through the boundaries that are thereby drawn. The goal of this exercise is equal treatment of faith-based and other life-views and various denominations. It is simultaneously apparent that the narrative renders a critical settlement of accounts with one’s own religious heritage an impossibility. This is where myth becomes important, and it is interesting to read European human rights law through Cavanaugh. Calling something a myth is not just about exposing its erroneousness, he says.164 With such phrasing, he indicates that we are dealing with a specific kind of power exercise, namely, the exercise of power through so-called naturalization. Something begins to be taken for granted and is not questioned. A story takes on the status of myth when it becomes unquestioned. It becomes very difficult to think outside the paradigm that the myth establishes and reflects because myth and reality become mutually reinforcing. Society is structured to conform to the apparent truths that the myth reveals, and what is taken as real increasingly takes on the color of the myth. The more that some are marginal162. Ibid., at 134. See also Kennedy, ‘Losing Faith’, supra note 144, at 313. 163. For an overview of how societal peace and the role of religions in relation thereto have been discussed in social theory, see Thorson Plesner, Freedom, supra note 32, at 360–364. MartínezTorrón and Navarro-Valls also mention how the work of the Court conveys an understanding of freedom of religion or belief that is connected to early liberal thought, which for reasons of safeguarding societal peace wanted to guarantee freedom of religion in private, while simultaneously counteracting far-reaching influence by the church in the public sphere. Religion was first and foremost a private matter. According to Martínez-Torrón and NavarroValls, a position that in today’s changed circumstances insists on such an understanding of freedom of religion or belief could be likened to ‘secular indoctrination.’ If state neutrality is interpreted this strictly, then it amounts to a form of ‘secular fundamentalism.’ Instead, states should embrace religious pluralism in the public sphere. Martínez-Torrón & Navarro-Valls, ‘The Protection’, supra note 22, at 235. 164. Cavanaugh, The Myth, supra note 5, at 6.

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ized as Other, the more Other they become. At the same time, the myth itself becomes more unquestioned the more social reality is made to conform to it. Society is structured in such a way as to make the categories through which the myth operates seem given and inevitable.165 Both the modern concept of religion and the concept of the nation-state undergo naturalization. ‘The secular nation-state then appears as natural, corresponding to a universal and timeless truth about the inherent dangers of religion.’166 As Cavanaugh observes, the naturalization of the concept of religion is not without difficult consequences. Emphasizing that which presumably unites all historical expressions of religion in time and space has the effect of concealing that which separates different faith-based life-views. Universalization of religion unjustly neglects particularities of faith communities, which have at this point been disembodied and relegated to the ‘heart’ of the individual. However, the way in which definitions of religion pretend to be descriptive, though they facilitate shifts of authority and redistribution of power, presents a more fundamental problem.167 For as Cavanaugh observes, by talking about religion, we are not only describing a ‘new social reality’ in modern western society [i.e., the state], but also something born out of and inculcated by means of the category ‘religion’. We are dealing with a normative concept of the religious,168 which, just like the ‘secular’, acquires its specific meaning in concrete contexts and whose meaning depends on prevailing constellations of power.169 What is or is not ‘religion’ thus depends on who has the power and the authority to define religion in various situations.170 We are dealing with a political category. When described in terms of ‘religion’, collectively upheld utopias, to borrow Cavanaugh’s terminology, get designated a specific place and a specific character. In modern western society discussed here, ‘religion’ is expected to be content with playing a marginal and adjusted role under threat of otherwise being perceived as dangerous.171 ‘The normative ideal 165. Ibid. 166. Ibid., at 3. 167. Ibid., at 82; ‘Major shifts in terms and practices are accompanied by shifts in the way the authority and power are distributed, and transhistorical conceptions of religion tend to obscure rather than illuminate these shifts.’ 168. Ibid., at 84–85, 127; William E. Arnal, ‘Definition’, in Willi Braun & Russell T. McCutcheon (eds), Guide to the Study of Religion (Cassell, 2000) 21–34 at 31. As Sigurdson formulates it: ‘A definition of ‘the religious’ is never politically or theologically innocent.’ Sigurdson, Det postmoderna, supra note 21, at 25. Author’s translation. Ibid., at 25. 169. Cavanaugh, The Myth, supra note 5, at 4. 170. Ibid., at 59. 171. Ibid., at 79, 84; ‘Religion … is a special political category that marginalizes and domesticates whatever forms of collective social action happen to retain a positive and utopian orientation. In the early modern era, the church was the most significant source of such social action that the state domesticated. Any attempt to break out of this segregation was condemned as dangerous and potentially violent.’ Cavanaugh is here referring to William E. Arnal, ‘The Segregation of

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that has come to define Western modernity is, in Locke’s words, ‘to distinguish exactly the business of civil government from that of religion.’’172 The role and place designated for religion is a consequence of the way in which collectively upheld aspirations, such as salvation and righteousness, are conceptualized anew in more individual terminology. Religion becomes a matter of personal conviction and values. The assertions are of limited social relevance.173 And, by advancing this understanding of religion, one seeks to create conceptual conditions for securing the possibility that the potential religious loyalty of individuals, in their capacity as citizens, does not render impossible the simultaneous loyalty towards the secular state.174 The way is paved for co-existing loyalties rather than for exclusionary allegiances. There is something familiar in the way Cavanaugh notes that the role of the modern liberal state is to make sure that the public sphere is ‘life-view neutral’ and that faith is privatized and individualized through the concept of religion. Malcolm D. Evans identified a structural bias in the Court’s application of the law. There is a tendency to safeguard faith that is compatible with the modern liberal state and that does not challenge this state in the way that more ‘communitarian’ faith-based life-views are assumed to do. What we encounter in case law in some of the cases analyzed in this article is a notion of citizenship that centers on the democratic values cherished by the ECHR. This citizenship is placed above religious identity175. Such Social Desire: ‘Religion’ and Disney World’, 69 Journal of the American Academy of Religion (2001) 1–19 at 5, 7–8. 172. Cavanaugh, The Myth, supra note 5, at 85, 127, who cites John Locke, A Letter Concerning Toleration (Bobbs-Merrill, 1955) (1689) at 17. 173. Cavanaugh, The Myth, supra note 5 at 84, who cites Arnal, ‘Definition’, supra note 168, at 32; ‘[T]he concept of religion justifies the liberal state’s self-presentation as an apparatus concerned with the wholly negative function of preventing the incursion of substantive, collective ends in the public sphere: ‘This very definition of the modern democratic state in fact creates religion as its alter-ego: religion, as such, is the space in which and by which any substantive collective goals (salvation, righteousness, etc.) are individualized and made into a question of personal commitment to morality.’’ 174. Cf. Cavanaugh, The Myth, supra note 5 at 121; Sigurdson, Det postmoderna, supra note 21, at 47. I do not focus on Cavanaugh’s understanding of the concept of the state in this article. However, it also noteworthy that he argues that the state presents its own alternative salvation narrative, which it uses to bind the people together. Thus, the state does not merely relegate ‘collectively upheld aspirations’ to the individual, but rather replaces Christian, Jewish, Muslim ‘collectively upheld aspirations’ with its own, which is the only one that can appropriately be worked out in public (for example, politically, economically). Law becomes one carrier of the alternative salvation narrative of the modern state. How this permeates international law and the ECHR is a key focus in this article. 175. Cf. Asad, Formations, supra note 17, at 4–5. Actually, in Cavanaugh, Marx, and Gorski, such citizenship is itself conceived as a form, or part and parcel, of religious identity; nationalism on a life-view. This seems to fit with how, for comparison, in the Lautsi case we see how the Italian state put forward the Catholic faith along with the monarchy as the feature around which Italian citizenship and identity were constructed at the turn of the last century. For

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civic loyalty has to be secured, and it appears that certain manifestations of faith give rise to doubts as to whether this loyalty is guaranteed. These manifestations are taken to signal the reemergence of a contender for loyalty, because religious loyalty does not relate to civic loyalty in the established way. Such presence of religious loyalty ‘beyond’ the nation-state reintroduces early modern anxieties of which Europeans had thought to have rid themselves. In his study Formations of the Secular: Christianity, Islam, Modernity, Asad notes that human rights form part of the ‘modern project,’ which in reality is a range of interrelated projects. Alongside democracy, civic equality, and moral autonomy, for example, human rights constitute a form of principles, which the modern project seeks to institutionalize.176 According to Asad, ‘[m]odernity is not primarily a matter of cognizing [sic] the real but of living-in-the-world.’177 An understanding of how modern life is to be lived is created through the categories of the ‘religious’ and the ‘secular’, and ‘representations of ‘the secular’ and ‘the religious’ in modern and modernizing societies mediate people’s identities and guarantee their experiences.’178 These categories help to form the world of people’s imagination. But the kinds of contrasts that we have seen in this section will legitimate a certain kind of violence, used to neutralize subversive tendencies. Irrational, religious violence is contrasted with rational, secular forms of wielding power.179 And in the readings of Cavanaugh and Asad, the supposedly secular appears to hold the potential to turn out just as violent as the supposedly religious. It is obviously a recurring view that all kinds of linguistic formulations will be both inclusive and exclusive. The distinctions made both facilitate and limit the imagination. Theorists have also emphasized this feature in relation to law. In this another discussion of how ‘human rights discourse presupposes liberal assumptions,’ and a critique of the negative implications of such assumptions for freedom of religion, see Danchin, supra note 120. 176. Asad, Formations, supra note 17, at 13. 177. Ibid., at 14. 178. Ibid. Asad emphasizes that a mirror is hereby held up to so-called ‘nonmodern’ people. It is expected that they will adjust to modern ideals. Id. See also ibid., at 17; ‘The important thing in this comparative analysis is not their [embedded concepts] origin (Western or non-Western), but the forms of life that articulate them, the powers they release or disable. Secularism – like religion – is such a concept.’ However, Cavanaugh does point out that: ‘The myth of religious violence is a form of Orientalist discourse that helps to reinforce a dichotomy between the rational West and other, more benighted cultures – Muslims especially – that lag behind.’ Cavanaugh, The Myth, supra note 5, at 194. 179. Ibid., at 4; ‘[A] broader Enlightenment narrative that has invented a dichotomy between the religious and the secular and constructed the former as an irrational and dangerous impulse that must give way in public to rational, secular forms of power.’ Ibid., at 183; ‘The myth of religious violence reinforces a reassuring dichotomy between their violence – which is absolute, divisive, and irrational – and our violence, which is modest, unitive, and rational.’ Cf. Asad, Formations, supra note 17, at 59–60.

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article I have analyzed the Court’s reasoning. It shows tendencies to a blindness that generates exclusion of a kind that Cavanaugh mentions on a more general level when he notes that the myth of religious violence ‘helps to construct and marginalize a religious Other, prone to fanaticism, to contrast with the rational, peace-making, secular subject.’180 Danchin likewise, highlights ‘the centrality of religious intolerance and exclusion to the rise of the European nation-state.’181 With regard to modern liberalism, Cavanaugh observes that the Other is the ‘Muslim’ who refuses to distinguish between politics and religion. This Other, and the viewpoint the Other represents, is marginalized.182 The fundamentalist secular (political) feature of recent reasoning by the Court is striking. As long as religion comes across primarily as something private and a question for the individual conscience, it seems easier to back the ideal of religious pluralism. And when diverse restrictions are introduced in the name of freedom and reason, they are not perceived in terms of violence.183 Moreover, when religion is accepted into the public sphere, it is so because it seemingly bows to the supremacy of the modern liberal state. 180. Cavanaugh, The Myth, supra note 5 at 4. See the Court’s reasoning in Refah Partisi (the Welfare Party) v. Turkey. 181. Danchin, ‘The Emergence’, supra note 28, at 485. See also ibid., at 482–483. While not wanting to ‘construe the use of religious faith as a sine qua non for European nationalism or hold that the exclusion of all religious minorities was a consequence of nation-building,’ Danchin does seek to point out that the western liberal nation-state depended on a certain degree of societal homogeneity. ‘[T]he politization of faith and the harnessing of religious identities to consolidate state power converged in waves of exclusionary cohesion.’ Ibid. at 486–487. Here Danchin approaches the issues discussed in this section on a somewhat different level, making a historical-political observation. Yet this observation goes well with the conceptual remarks of both the historical and the contemporary kind that Cavanaugh is making. And Danchin goes on to note that ‘[c]ontemporary conceptions of liberal nationalism and religious toleration are thus the heirs to an earlier liberal tradition premised on group separation (in the form of Westphalian sovereignty) rather than on an inclusive, rational consensus regarding liberal values amongst diverse religious groups.’ Ibid. at 488. 182. Cavanaugh, The Myth, supra note 5, at 4. By comparison, Sigurdson notes that the concept of religion ‘as such serves to domesticate or alternatively render exotic people’s relation to God directly or indirectly for political ends.’ Sigurdson, Det postmoderna, supra note 21, at 16. [Author’s translation] Other ways of imagining the relationship between the religious/ sacred and the secular can also become ‘otherised’. In highlighting ‘the doctrinal origins of post-Westphalian international law’ and the ‘particular conception of secularism seen to characterize the modern structure of international law,’ Danchin quotes T. N. Madan, who identifies alternative visions among ‘non-Christian religious traditions [that] either do not make this distinction [sacred-secular] (e.g. Islam), or do it hierarchically (e.g. Hinduism), subsuming the secular under the sacred.’ Danchin, ‘The Emergence’, supra note 28, at 456, 456 (fn. 3); T. N. Madan, Modern Myths, Locked Minds: Secularism and Fundamentalism in India (Oxford University Press, 1997) at 15. 183. It is also for this reason that Cavanaugh locates the emergence of notions of religious pluralism, such as can be found in the thinking of Locke, to a point in time when religion came to be understood exactly along these lines. Cavanaugh, ‘A Fire’, supra note 146, at 407.

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To finish, Cavanaugh notes that the ideal borne through the modern tradition will necessarily always be questioned. Without discussing this critique in any detail here, the view of the significance and place of faith in a person’s life as presented here may be questioned. As Asad observes: True, the ‘proper domain of religion’ is distinguished from and separated by the state in modern secular constitutions. Both formal constitutions never give the whole story. … objects, sites, practices, words, representations – even the minds and bodies of worshippers – cannot be confined within the exclusive space of what secularists name ‘religion’. They have their own ways of being. The historical elements of what come to be conceptualized as religion have disparate trajectories.184

Nor is it self-evident that we should view the kind of arrangement that the modern tradition wants to safeguard as being less desirable. However, Cavanaugh points out that we need to be aware of how categorizations direct our gaze and understanding and make various courses of action possible. He calls for critical analysis of how the religious and the secular are employed in various practices.185 Similarly, Asad urges us to study concrete practices of secularism and to ask ourselves: In what way does the law define and regulate practices and doctrines on the grounds that they are ‘truly human’? What discursive spaces does this work of definition and regulation open up for grammars of ‘the secular’ and ‘the religious’?186

7. Concluding Remarks When human rights are talked of today, they are usually characterized as universal, inalienable, and fundamental. They are presented as a kind of clarification of how human life should take shape everywhere. It is not about prescribing what a good life should be. The pretensions are more limited, despite the fundamental character of these rights. We may imagine that what we encounter, for example, in the United Nations Universal Declaration of Human Rights, which is often considered a definition of human rights, is a life embracing account of human life yet at the same time in some sense ‘neutral’. As part of this line of reasoning, the idea is often advanced that human rights law does not hold a specific view with regard to religion. The only thing decided upon is the adverse consequences of conduct in relation to any faith-based or other view of life. We are presumably dealing with ‘objective’ and ‘disinterested’ governance. 184. Asad, Formations, supra note 17, at 200–201. 185. Cavanaugh also clearly considers the modern configuration as highly dangerous and problematic, and he calls his fellow Christians (among others, perhaps) to come out from under its operating conceptions and practices. 186. Ibid., at 17.

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The analysis in this article indicates that we should reconsider such an assumption. For example, when analyzing the case law of the Court, we are not just studying a legal vocabulary. We analyze a way to imagine human life that governs conduct. How does human rights law affect the way we think about religion, and how does it regulate the space in which people are given the opportunity to live out their faith? Historically, the Court has accepted a number of different state-church arrangements as being compatible with the ECHR. Different kinds of support or preferential treatment and symbolic identification with a certain faith community have not necessarily been considered objectionable. Different views of what it means to safeguard the public sphere as a secular sphere have been accepted. It has even been accepted that a state may be officially confessional, as long as it is possible for followers of other life-views to live out their faith as well. The recent Grand Chamber judgment in the Lautsi case seems to affirm this principle standpoint. In recent years, however, researchers simultaneously observed a change in the Court’s dealings with questions of freedom of religion or belief. The focus has shifted, bringing about a partial reinterpretation of the role of states. In its case law, the Court to a greater extent expressly emphasizes the secular character of the political but also the wider public sphere. This shift seems to take place at the expense of individuals’ abilities to manifest their faith in various ways. Expressions of faith that appear to challenge fundamental societal values promoted by the ECHR cannot count on self-evident protection. In a different context, yet in a fashion that seems to capture something of what we encounter here, David Kennedy has noted the following concerning ‘the return of religion’ and the law’s interest in and attention to religion: ‘We normally return to religion less to question than to confirm our eclecticism, less as a displacement of secularism than as a continuation of its will to power.’187 The factors influencing the Court’s position are naturally manifold. My suggestion has been that the basic parameters for the Court’s reasoning have a history that precedes the founding of the Court itself. I have sought to present such an historical outlook. Furthermore, I have claimed that the historical background of prevalent models is not always taken into account, nor is the way a certain notion of faith is affected and bound with a particular view of society always addressed. The Court does not operate with an explicit definition of religion. However, when we study the Court’s reasoning, we see indirect evidence of a view of faith that I have identified as a kind of ‘enlightenment figure.’ As stated already in the introduction, we should ask whether ‘a contingent power arrangement of the modern West [is mistaken] for a universal and timeless feature of human existence.’188 187. Kennedy, ‘Losing Faith’, supra note 144, at 318. 188. Cavanaugh, The Myth, supra note 5, at 17.

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There is no explicit agenda underlying the exercise of power that I want to point out here with the help of Cavanaugh. We are not dealing with propaganda. Rather it is simply that the myth of religious violence, even if it does not go wholly unquestioned in scientific discussions, forms ‘part of the general conceptual apparatus of Western society.’ ‘It is one of the ways that the legitimacy of liberal social orders is continually reinforced.’189 Cavanaugh studied various types of power exercises authorized by the myth of religious violence, how marginalization of a certain discourse designated ‘religious’ occurs, and how people who refuse to control their ‘political passions’ in the public sphere become marginalized. His focus in the book discussed in this article is the United States. In this article, I have sought to highlight a similar phenomenon in Europe. Cavanaugh studied the case law of the US Supreme Court and the explicit references to religious violence that can be found there. The case law he analyses concerns the same kinds of issues that I have focused on in the case law of the Court: the character of public school, state neutrality, and the like. While we may find phrasings such as ‘harmonious interaction of persons and groups with various identities’ being a prerequisite for ‘social cohesion,’190 or ‘peaceful coexistence between students of various faiths and thus protecting public order and the beliefs of others,’191 the articulation of what is at stake has perhaps not been done to a similar extent in terms of religious peace. The case of Refah Partisi (the Welfare Party) v. Turkey, however, stands out in this respect with the Court discussing, for example, the meaning of jihad.192 The fact that Cavanaugh criticizes the dark side of the liberal story does not mean that he devalues what he calls liberal principles, such as the separation of church and state for the benefit of various premodern forms of governance. Neither does he down play or deny the violence exercised by various faith communities and believers. But through his reading, Cavanaugh questions the triumphant myth that conceals the exercise of power, which, like all forms of governance, should be subjected to critical assessment.193 In this article I have not attempted to claim that human rights law serves no purpose. The prevailing tradition of interpretation surely provides ample support for certain groups of people. As human rights are interpreted at the moment, they seem quite able to protect certain forms of belief, the sort of faith-based life that accords with a modern liberal understanding of faith. As a wider discourse, human rights also seem to provide many people today with a language with which

189. Ibid., at 183. 190. Moscow Branch of the Salvation Army v. Russia, at para. 61. 191. Leyla Şahin v. Turkey [GC], at para. 111. 192. Refah Partisi (the Welfare Party) v. Turkey (Grand Chamber), at paras 129–131. 193. Cavanaugh, The Myth, supra note 5, at 179.

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to voice what are considered injustices, regardless of whether their reading of a situation will ultimately be (legally) confirmed by a human rights organ. Human rights theorists, whose ideas I have taken into account and discussed, express their opinions in various ways as to whether the protection of freedom of religion or belief is satisfactory and how this protection should be improved.194 In this article, I have adopted something of a meta-perspective in relation to the human rights discourse of which these researchers form a part. With Cavanaugh, I have noted the need to emphasize that the terms ‘religion’ and the ‘religious’, as well as the ‘secular’, legitimize different courses of action. It is not irrelevant what is designated religion and what is not. There is a need to reflect critically upon one’s own conceptual presuppositions, which may deter rather than advance the objectives of the work being carried out.

194. See also, e.g., the contributions in M. L. P. Loenen & J. E. Goldschmidt (eds), Religious Pluralism and Human Rights in Europe: Where to Draw the Line? (Intersentia, 2007), for a discussion of freedom of religion or belief and its limitations in a situation of religious manifoldness.

Legal Mobilization and Resistance Movements as Social Constituents of International Law Stellan Vinthagen* AbstrAct: This explorative paper maps articulations of citizens’ advocacy and activism in relation to international law from a sociological perspective. In the interest of anti-hegemonic struggle it aims to show (1) that social movements’ legal mobilization of (2) legal strategies (3) creates a dynamic interaction between activism and law. The discussions are illustrated with examples of activism targeting different aspects of the law. The ‘legal strategies’ discussed are: (a) Active use of law, (b) ‘Watch-dogs’ exposing breaches of law, (c) Public pressure for legal change, (d) Challenge of ‘unjust’ laws, (e) Movements as ‘law makers’. Theoretically it is argued that interaction between activism and law is not a simple matter of ‘boomerang patterns’ or ‘norm spirals’ leading to domestic ‘compliance’. One case discussed – the movement against the Narmada dam project – indicates that even vigorous resistance with a multilevel mobilization over decades, that combines direct action by thousands of activists, successful legal processes, mobilization of international regimes, lobbying as well as international solidarity mobilization, might not necessarily lead to a clear-cut victory. The tentative suggestion is that (the implementation of ) international law is an effect of transnational social struggles that arise from the frustrated attempts by resistance actors to rebel against dominance, and the frustrated attempts of powerful actors to control resistance. International law both affects resistance and is affected by it. Therefore, logically, international law is produced by the struggle between states and other social forces in a plural world. Keywords: Resistance, social movements, legal mobilization, legal strategies, Narmada, Third World *

Associate Professor of Sociology, University West, Sweden. An early version was presented at the International Studies Association Conference 17-20 February, 2010, New Orleans, USA. This research is part of the Swedish Research Council funded research program ’Globalization of Resistance’ (2011-2015) and a larger project on ‘Social movements and legal change’ done together with Håkan Gustafsson, Professor of Jurisprudence, and funded by the Swedish Research Council Vetenskapsrådet (2009-2011). I want to thank Angie Zelter, Robert Tolonen and the editorial board of the Finnish Yearbook of International Law for very helpful comments. The author can be contacted at [email protected], .

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‘For too long, during almost its entire life, international law has remained too western, elitist, male-centered, and imperial, and the encounter with social movements offers an opportunity to fundamentally transform itself.’1

Throughout history, social movements have played an important role in ending and banning serious crimes, e.g. the slave trade, Apartheid, and the international whale hunt, to name a few examples. Contrary to conventional understandings ‘the state’ has no monopoly of lawmaking or law-enforcement, instead it is one among several actors, although a privileged one, and constitutes the institutionalized structure of social and legal contentions. This explorative paper maps articulations of citizens’ advocacy and activism in relation to international law from a sociological perspective, with the aim to show (1) that social movements matter for international law, and (2) with what legal strategies activists try to influence, and (3) how the dynamic interaction between activism and law could be understood, and improved in the interest of anti-hegemonic struggle with a greater involvement of lawyers. For each of these three aims, the theoretical discussions have been illustrated with examples of activism targeting different aspects of international law. Since this paper aims to give an overview over an emerging field of study, there is no opportunity to go deeper into any particular case. However, one case is discussed somewhat more in detail. The sometimes complex dynamic interaction between activism and international law is illustrated through a discussion of multi-level resistance to the Narmada valley dam construction in India, a resistance conducted by the forcibly evicted tribal communities and urban solidarity activists in India and abroad. The illustrating cases are chosen in order to discuss alternative understandings to a dominant model of explanation for the interaction between law and activism. Sociological research on transnational social movements focus on the morphology of the movements – their organizational structure, participating actors, attitudes, events, alliances, issues and links – and how social movements in general try to influence the organization of international institutions and their policies, often without once mentioning ‘(international) law’ or ‘(international) norms’2, or just occasionally.3 There are detailed single case studies,4 or studies that outline the general role of globalization, international institutional frameworks or ‘inter1. 2. 3. 4.

Balakrishnan Rajagopal, International Law from Below: Development, Social Movements and Third World Resistance (Cambridge University Press, 2003) at 23. See e.g. Donatella della Porta (ed.), The Global Justice Movement: Cross-national and Transnational Perspectives (Paradigm Publishers: Boulder, 2007) at 29-51. Sidney Tarrow, The New Transnational Activism (Cambridge University Press, 2005). See e.g. Donatella della Porta and Mario Diani, Social Movements: An Introduction (2nd edition, Blackwell Publishing: Oxford, 2006) at 231. Charles Tilly and Sidney Tarrow, Contentious Politics (Paradigm Publishers: Boulder, 2007) 173-174, at 176. See e.g. Jutta M. Joachim, Agenda Setting, the UN, and NGOs: Gender Violence and Reproductive Rights (Georgetown University Press, 2007).

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national opportunity structures’ on transnational activism,5 that neither outline the ‘legal strategies’, nor the socio-legal dynamic of these movement struggles.6 At the same time, ‘international lawyers have neither attempted to interpret mass actions nor engage the rich literature on social movements’.7 However, within international relations theory on human rights mobilization,8 there are some studies. The dominant model in the field combines two key concepts. Firstly, ‘boomerang patterns’,9 i.e. local Non-Governmental Organizations (NGOs) blocked by authoritarian regimes link up with ‘transnational advocacy networks’ that mobilize states and international institutions pressuring regimes that violate international norms. Secondly, ‘norm spirals’, i.e. repeated boomerang patterns that, if repeated and enforced, lead towards the final stage of “Rule-Consistent Behavior’ by targeted states.10 The combinatory model claims ‘the evolution of human rights practices resembles ... a whole spiral of boomerangs repeatedly crossing national borders. This dynamic model approach reveals how governments are 5. 6.

See e.g. Tarrow, The New Transnational Activism, supra note 2. Some researchers, like Charles Tilly and Sidney Tarrow, Contentious Politics, supra, note 3, have in detail discussed dynamic interactions of international claims making, but without discussion the legal aspect of these dynamics (only at 173-176 do they bring up international law, then through an analysis of one case example, and without drawing general conclusions regarding legal aspects). POS that does have a process perspective on the relation between movements and the state and political structure, but that seldom engage directly with the law, see e.g. Doug McAdam, Political Process and the Development of Black Insurgency, 1930–1970 (2nd edition, The University of Chicago Press, 1999), and were the international POS are still under development, Stellan Vinthagen, ‘Motståndet mot den nya världsordningen’ [‘The Resistance Against the New World Order’], in Janne Flyghed & Magnus Hörnqvist (eds.), Laglöst land (Ordfront: Stockholm, 2003) at 232-264. One of the latest suggestions of how to understand movements’ relations and struggles is the ‘contentious politics’ perspective that emphasize dynamic interactions between various actors, among them most importantly the state, but again, it is not the law that is in focus. The integration of movement theory, resistance studies and legal studies is rare; Håkan Gustafsson and Stellan Vinthagen, ‘Rättens rörelser och rörelsernas rätt’ [‘The Movement of Law and The Law of Movements’], in Tidsskrift for Rettsvitenskap (2010) vol. 123, 4 & 5, at 637–693; Håkan Gustafsson and Stellan Vinthagen, ‘Law on the Move’ (unpublished article, forthcoming 2012). 7. Balakrishnan Rajagopal, ‘International Law and Social Movements: Challenges of Theorizing Resistance’, 41 Colombia Journal of Transnational Law (2003) 397-433, at 401. 8. Margaret Keck and Kathryn Sikkink, Activists Beyond Borders (Cornell University Press, 1998). Naomi Klein, No Logo: Taking Aim at the Brand Bullies (Picador: New York, 1999); Thomas Risse and Kathryn Sikkink, ‘The Socialization of Human Rights Norms into Domestic Practices: Introduction’, in Thomas Risse, Stephen C. Ropp and Kathryn Sikkink (eds.), The Power of Human Rights: International Norms and Domestic Change (Cambridge University Press, 1999) at 1-38. Thomas Risse, ‘The Power of Norms versus the Norms of Power: Transnational Civil Society and Human Rights’, in Ann M. Florini (ed.), The Third Force: The Rise of Transnational Civil Society (Carnegie Endowment for International Peace, and Japan Center for International Exchange: Tokyo, 2000) at 177-209. 9. Keck and Sikkink, Activists, supra note 8, at 13. 10. Thomas Risse, ‘The Power of Norms versus the Norms of Power’, supra note 8.

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likely to respond to transnational pressures ... if transnational civil society makes it happen’.11 The basic proposition is that a progressive domestic implementation of international norms occurs, if transnational movements keep up the pressure.12 This assumption of inherent ‘compliance’13 or ‘linear progression’14 through law implementation seems to be contradicted by the understanding of the role of ‘law’ within much socio-legal studies.15 Therefore, this study draws instead on the counter-hegemonic approach of international socio-legal studies developed by Balakrishnan Rajagopal.16 His work on ‘the role of ‘law’ in a concrete social movement struggle’17 points towards a more critical and also more dynamic relation between law and resistance, a path this article wants to pursue.18 So far, the ‘legal strategies’ of movements have not been developed into a typology, and linked to a critical and dynamic interactive model of law-activism. This article will initiate that work by combining the three aims above. Globalization has affected how extra-national and extra-state ‘legal mobilization’ is articulated in relation to international law or ‘global law’.19 Different 11. Ibid., at 190-191. 12. The limitations mentioned by Risse, ibid., at 204-207, to this suggested stage development of domestic implementation are several, but have nothing to do with the legal system or the ‘law’, not on any level or in any aspect. The limitations depend on things like how strong the links are between international NGOs and domestic ones, the time ‘to develop the necessary momentum’, cooperation by willing states and national governments, dangers of civil war, and limitations to deal with laws outside the domain of the state and its rule of law (i.e. ‘social and economic rights’) or the risk that human rights coalitions get captured by ‘private interests’. Thus, the necessary interpretation is that as long as transnational civil society mobilizes together with domestic civil society in the interest of civil and political rights, states that violate the international norms will eventually comply. This article questions such an assumption. 13. Balakrishnan Rajagopal, ‘The Role of Law in Counter-hegemonic Globalization and Global Legal Pluralism: Lessons from the Narmada Valley Struggle in India’, 18 Leiden Journal of International Law (2005) 345-387, at 345-347. 14. Ibid., at 354. 15. Håkan Gustafsson and Stellan Vinthagen, ‘Rättens rörelser och rörelsernas rätt’ supra note 6; Håkan Gustafsson and Stellan Vinthagen, ‘Law on the Move’, supra note 6; Michael McCann, Rights at Work (University of Chicago Press, 1994). 16. See e.g. Balakrishnan Rajagopal, ‘From Resistance to Renewal: The Third World, Social Movements, and the Expansion of International Institutions’, 41 Harvard International Law Journal (2000) 529-578. Balakrishnan Rajagopal, International Law from Below, supra note 1. Balakrishnan Rajagopal, ‘Counter-hegemonic International Law: Rethinking Human Rights and Development as a Third World Strategy’, 5 Third World Quarterly (2006) 767-783. 17. Rajagopal, ‘The Role of Law’, supra note 13, at 347. 18. The final sections on the Narmada case as well as the discussion on the (unpredictable) nature of law-activism dynamic draws generously from the ground-breaking work of professor Rajagopal. However, the take in this article on ‘legal strategies’ is a contribution to the kind of ‘theory of resistance’ Rajagopal, ‘International Law and Social Movements’, supra note 7, at 397-433, and partly to the ‘Third World Approach to International Law’, TWAIL, Rajagopal is calling for, see Rajagopal, ‘From Resistance to Renewal’, supra note 16. 19. Gunther Teubner, ‘“Global Bukowina”: Legal Pluralism in the World Society’, in Gunther

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forms of actors exist and have different strengths in pursuing different kinds of socio-legal mobilization. Basically the mobilization of civil society actors might articulate itself through nongovernmental organizations (NGOs), social movement organizations (SMOs) or combinations of them in social movements, resistance movements or ‘transnational advocacy networks’ (TAN).20 This paper illustrates and gives an overview of this mobilization with case examples of many different extra-state and extra-national mobilizations, but with an emphasis on what is here called transnational movement resistance, in particular movements emanating from the Third World.21 Movements are expressions of citizens’ needs, beliefs and claims that are fundamentally based at the local level. This entails that there might be difficulties for social movements to mobilize at a global level. Nevertheless, they do diffuse and network globally since many local problems cannot be solved at a local level.22 Teubner (ed.) Global Law Without A State (Dartmouth Publishing Company: Aldershot, 1997) at 3-28. 20. See Sean Chabot and Stellan Vinthagen, ‘Rethinking Nonviolent Action and Contentious Politics: Political Cultures of Nonviolent Opposition in the Indian Independence Movement and Brazil’s Landless Workers Moveament’, 27 Research in Social Movements, Conflicts and Change (2007) 91-122; Keck and Sikkink Activists, supra note 8; Rajagopal, International Law from Below, supra note 1. The article deals broadly with non-conventional and noninstitutional legal actors such as: ‘social movement’, ‘resistance movement’, ‘NGO’, ‘SMO’, ‘TAN’ or ‘civil society actor’. These movements might be fighting for very different goals and use very different means. This article is limited to the kind of activism that aims towards human rights, democracy, equality, liberation or similar, and that use non-military strategies. Generally, a NGO is a legally recognized and formalized organization with a formal leadership that is donor-driven, where professional workers do most work. A social movement is an informal communication and action network of multiple actors where no formal leadership or structure exist (although an informal one), where most work is done with small budgets by voluntary and non-professional persons associated to the movement. Among the multiple actors in a movement there exist, besides individuals, informal groups, think-tanks, music bands, newspapers, educational teams and other actors, also formal member organizations, and some of them might be NGOs, such NGOs that are active participants in the network, and such organizations are here called ‘SMOs’, social movement organizations. 21. Balakrishnan Rajagopal, International Law from Below: Development, Social Movements and Third World Resistance, supra note 1. Among these various actors, all arising from what is often called the ‘civil society’, there seems, for various reasons, to exist more fundamental influence on the law through what might be called (transnational) ‘resistance movements’, which in this article refers to a particular kind of movements with system-critical goals, and often also system-critical means, i.e. that practically engage with and question power relations and aim for more than temporary legal- or policy-change. One empirical example is the Narmada movement that is discussed towards the end of this article. 22. In a sense it is more difficult for a movement to influence international law, since it is (perceived as) more distant, on a higher level above the local space in which any individual citizen lives; in another sense, however, it is easier since it is in a constant process of becoming, thus it is not defined in the same way as national law. International law is still an evolving territory, without clear boundaries, without clear sanction power, or a globally legitimate system of world courts.

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Today, coordination at distance is even more feasible due to information communication technology (ICT). The way in which transnational movements influence international law can be regarded as a specific case of the general interactions between movements and law, but the interaction can be expected to show similarity to that on local or national level.23 The interactions between law and movements, on the national as well as the international level, are characterized by contentious politics: a struggle where groups make claims and challenge vested interests. This implies that law influences the movements, simultaneously as movements influence the law. Therefore, the interaction will be mutual and dynamic, even when the relation is asymmetric. Initially, in Section 1, I situate the analysis through a description of how legal frameworks have developed from historical state projects and contemporary globalization. Then, in Section 2, the general relationship between social movements and international law is explored, while Section 3 suggests and illustrates a typology of movements’ legal strategies, and briefly analyzes a case that shows the dynamic interaction of legal mobilization. Lastly, Section 4 discusses the role of lawyers in legal mobilization, and draws some fundamental conclusions on the relationship between international law and resistance movements.

1. Globalization, Norms and International Law ‘The center of gravity of legal development therefore from time immemorial has not lain in the activity of the state, but in society itself, and must be sought there at the present time‘.24

In a fundamental sense, resistance is a productive activity,25 in a similar way to power, as argued by Foucault.26 Furthermore, the mobilization of law is a social process, not a simple power effect of a state machinery. However, it is common to view the law as an instrument of power that emanates from the state, the institution that claims monopoly of power (i.e. sovereignty). Logically, then there will be protest, or even resistance by those with less power, those who want to influence power or want more power against that state law, as against all forms of power. This may be an accurate way to describe the relationship between law/ state/power and protest/resistance, but then only in limited circumstances. It is already clear from the vast critical legal studies that various institutional social forces matter for legal development, as e.g. courts, educational law institu23. 24. 25. 26.

Håkan Gustafsson and Stellan Vinthagen, ‘Rättens rörelser och rörelsernas rätt’ supra note 6. Eugen Ehrlish, cited in Gunther Teubner, ‘Global Bukowina’, supra note 19. Mona Lilja and Stellan Vinthagen, Motstånd [Resistance] (Liber: Stockholm, 2009). Michel Foucault, Power/Knowledge: Selected Interviews and Other Writings 1972–1977 (Colin Gordon (red), Pantheon Books: New York, 1980).

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tions, mediation centers, law firms, and other formal organizations.27 However, in this article the focus is on non-institutional collective action and social struggles. ‘Socio-legal mobilization’ is a concept that tries to capture the activation of the relationship between state power and the power of resistance force, i.e. those alliances of social groups and interests institutionalized in the state vs. those non-institutional alliances of social groups and interests that challenge existing relationships. Law, then, is a result or product from that interaction and dynamic relationship. Socio-legal mobilization is an interactive and dynamic process in which non-institutional social forces in society produce law as a temporary remnant of (violent or nonviolent) battles, as the residue of the relations of forces entangled in power struggles.28 The forces of an increasingly important world economy, making it hard to avoid international regulation, pull the individual nation states together. Through intensified and multidimensional globalization the need for regulation of international affairs is also increasing. Furthermore, there are also more states involved in the international arena.29 It is uncontroversial to claim that today after 1945, intensified during the last two decades, there is an emerging institutionalization of international relationships codified in a growing body of international law.30 It would, conversely, be controversial to say this is leading towards a world state, a relatively stable power configuration similar to the nation state, with a monopoly of legitimate violence, civil rights and a rule of law by one unified global state-like organization. A contemporary increasing global interconnectivity also intensifies the dynamic processes in which social forces struggle. Temporary outcomes 27. James Boyle (ed.), Critical Legal Studies (Dartmouth Publishing Company: Aldershot, 1994); Roberto Unger, The Critical Legal Studies Movement (Harvard University Press, 1986). 28. Håkan Gustafsson and Stellan Vinthagen, ‘Rättens rörelser och rörelsernas rätt’ supra note 6. 29. Since 1945 there has been an unprecedented raise in new nation states – with some 50 states 1945 and almost 200 today – together with the growth of new types of international organizations: International governmental organizations (IGOs, or multilateral regimes of governance), transnational corporations and transnational social movement organizations. This amounts to the transnationalization of core sectors of the nation state: the political system, the economic system and the civil society, which are all becoming global. Thus, states are simultaneously disintegrating as they transnationalize, or expressed in another way: there is an increase in the number of states at the same time as their borders become more fragmented. Both processes make states more vulnerable to various global economic, political, cultural, technical, ecological, criminal or other social forces. 30. There is an increasing development of laws, legal institutions and shared norms. Today it ‘is evident that international law finds itself in a different and altogether more complex situation ... [with] more actors on the international stage (state and non-state), more areas subject to international regulation, and more approaches.’ Laurence Boisson de Chazournes and Philippe Sands (eds.), International law, the International Court of Justice and Nuclear Weapons (Cambridge University Press, 1999) at 6. ‘It may indeed be that we stand on the brink of the first universally organized (albeit embryonically) international community known to humanity.’ Ibid., at 7.

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(victories, defeats, compromises, etc.) of this struggle produce ‘international law’, but the content is an open and undetermined question.31 This article does not attempt to predict the results, but will instead trace the role of social movement resistance in this context. From a perspective of the sociology of law, it is possible to understand the ‘law’ as formalized norms.32 Norms and standards such as informal rules of behavior are as central in any community as they are in the international community. Even if not all states subscribe to established norms not all forms of behavior are tolerated. A state has the monopoly of legitimate violence and can enforce its law. In a similar way a community will enforce its norms through expressing dissatisfaction, critique, unfriendliness or other forces of social sanctions. Today, there is even a principle of ‘universal jurisdiction’.33 It is a legal term claiming that certain crimes are so serious that they concern the whole of humankind, irrespective of where the crimes are committed and by whom. The primary historical example is early legislation against piracy on the oceans, an early common threat that united different states to create international legislation.34 Today such universal jurisdiction has been expanded to war crimes, crimes against humanity, genocide, etc. This expanded use is controversial but adopted by some Western states in the world (e.g. Canada, France, UK, Belgium, Spain and Germany). This means that these states claim jurisdiction over crimes done in a third country or on the open sea, irrespective of the perpetrator and irrespective of whose citizens or property were affected. Thus, today some individual states embody the jurisdiction of a ‘world state’. However, even if international law becomes ‘part of the opportunity structure’ that enables some states, magistrates and activists to pursue crimes,35 the weakness of international law is that it rarely has an effective sanctioning power. Irrespective of the world order that evolves from globalization, there is an interesting and fundamentally undetermined quality to specific international laws. Even laws that are a result of military victory and that are used to suppress the interests of those conquered will in the long-term open up new possibilities in some situations for new actors to challenge power relations. The Nuremberg laws, for example, were possible after the defeat of Nazi-Germany, which in turn led to the punishment of Nazi-leaders by a law created after their crimes were committed. This was something (highly unorthodox in legal practice) necessitated by the public outrage to these horrendous crimes.36 This then led to a set of legal 31. Björn Hettne and Bertil Odén, Global Governance in the 21st Century: Alternative Perspectives on World Order (Almqvist & Wiksell: Stockholm, 2002). 32. Håkan Hydén, Normvetenskap (Lund Studies in Sociology of Law, Lund University, 2002). 33. Tilly and Tarrow, Contentious Politics, supra, note 3, at 174. 34. Georg P. Fletcher, Tort Liability for Human Rights Abuses (Hart: Oxford, 2008). 35. Tilly and Tarrow, Contentious Politics, supra note 3, at 174. 36. Still, the argument for applying the Nuremberg laws was not in itself unorthodox. As often

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principles codified in the body of international law, making it possible for postwar oppositional activist movements within e.g. the peace movement, to accuse the US for its use of nuclear bombs, and allied mass-bombing of Dresden, or the former USSR for its treatment of civilians in Eastern Europe. Later it has even become possible for activists to get acquitted in courts for actions against the nuclear arsenal of the UK, arguing they tried to follow the Nuremberg principles that gives rights to citizens to prevent genocide committed by regimes.

1.1. The Globalization of International Law Let us now look more in detail on the growth of the role of international law after 1945. It could arguably be seen as primarily starting with court proceedings against war criminals: the Tribunals of Nuremberg (1945-1946) and Tokyo (1946-1948) and the preceding special war tribunals in the 1990s and onwards (Former Yugoslavia, Rwanda, Cambodia, Sierra Leone, etc.). Secondly, there was the growth of international treaties as e.g. the Genocide Convention in 1948. There has been a development of legal regulations of relations between nation states as long as nation states have existed, but the difference today is that there is a major growth and sophisticated development in the body of international law and institutions. Behind the changes are (i) the increasing globalization of different economies and cultures, (ii) the end of the Cold War, and (iii) the so-called ‘War on Terror’. Together these tendencies create new opportunities as well as threats to states, thereby giving a new role for international law. A dramatic change is the discourse on ‘humanitarian interventions’, introduced in the 1990s, that undermines the sovereignty of the state,37 another, the historically unprecedented growth of NGOs and social movements targeting states and international institutions.38 Some describe this

with international treaty law, the proponents of charging the Nazis claimed the principles were supported by international customary law, i.e. were principles that had been respected by de facto behavior of states for a long time. The argument against, though, is in my view equally valid, namely, that such genocide campaigns had in fact been tolerated throughout the whole colonial period (e.g. Belgian Congo). 37. Mikael Baaz, ‘Statssuveränitet och humanitär intervention: (O)förenliga principer i dagens globaliserade värld’ (CERGU: Göteborg, 2006). 38. Rajagopal, International Law from Below: Development, supra note 1. Vinthagen, ‘Motståndets globalisering’ [‘The Globalization of Resistance’], in Mikael Löfgren and Masoud Vatankhah (eds.), Vad hände med Sverige i Göteborg? (Ordfront Förlag: Stockholm, 2002) 240-263; Vinthagen, ‘Motståndet mot den nya världsordningen’, supra note 6. The contemporary transnational growth of movement mobilization involves more countries, social groups and issues, and is bigger in numbers of people mobilized, compared to earlier historical examples such as the abolition of slavery movement or the anti-apartheid movement, see Stellan Vinthagen, ‘Is the World Social Forum a Democratic Global Civil Society?’, 3 Societies without Borders (2008) 131-148.

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emergence of social movements as a core part of structuring multilateral institutions as ‘complex multilateralism’.39 The year 1998 might be viewed as a turning point in the enforcement of international law against crimes conducted by state leaders, consisting of three unique events: (1) the attempt to get the former dictator and president Augusto Pinochet extradited from Britain to Spain for court proceedings for crimes against people in Chile during the military dictatorship 1973-1990. This was a ‘third state’ legal intervention, i.e. a state (Spain) prosecuting crimes committed outside of its own territory,40 (2) the decision to create the first permanent International Criminal Court (ICC) and (3) the first indictment of a serving head of state by the International Criminal Tribunal for the former Yugoslavia: President Milosevic. The role of the nation state is controversial in the historical process of globalization.41 It is debated whether globalization means the state is disappearing, diminishing in importance, or even growing in importance. The consensus seems to be that the role of the state is changing.42 The state needs to manage an increasing number of actors, activities and forces. Today the majority of the 100 largest economies are corporations, not states.43 Thousands of social movements and NGOs are also making their influence known.44 To this it can be added: spreading environmental impact, criminal networks, the Internet, Satellite TV, tourism, migration, etc. The management of sovereignty by the state, the control of its territory and the people that act and live on that territory, is getting more and more complicated. 39. Robert O’Brien, Anne-Marie Goetz, Jan Aart Scholte and Marc Williams, Contesting Global Governance – Multilateral Economic Institutions and Global Social Movements (Cambridge University Press, 2000). 40. Tilly and Tarrow, Contentious Politics, supra, note 3, at 172-174. Pinochet was in Britain for medical reasons when he was arrested. Nowadays there are several existing attempts to bring (former) political leaders to court, e.g. George W. Bush, Tony Blair, Tzipi Livni. 41. See Hans Abrahamsson, Understanding World Order and Structural Change: Poverty, Conflict and the Global Arena (Palgrave: New York, 2003); Zygmunt Bauman, Globalisering (Studentlitteratur: Lund, 2000); Manuel Castells, The Rise of the Network Society (vol. I, Blackwell Publishers: Oxford, 1996); Björn Hettne and Bertil Odén, Global Governance in the 21st Century: Alternative Perspectives on World Order, supra note 31; Frank J. Lechner and John Boli (ed.), The Globalization Reader (Blackwell Publishers: Oxford, 2000). 42. Ulrich Beck, Den kosmopolitiska blicken (Daidalos: Göteborg, 2005). 43. See Noreena Hertz ‘Why we must stay silent no longer’, The Observer, (visited 25 Nov 2009), and also the report ‘Top 200’ from 2000 by Institute for Policy Studies, (visited 25 Nov 2009). 44. See Donatella della Porta and Sidney Tarrow, Transnational Protest and Global Activism (Rowman and Littlefield: New York, 2005); della Porta (ed.), ‘The Global Justice Movement, supra note 2; Vinthagen, ‘Motståndets globalisering’, supra note 38; Vinthagen, ‘Is the World Social Forum a Democratic Global Civil Society?’, supra note 38.

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Although this growing body of international law causes some predictability that facilitates coordinated actions, it also circumscribes the individual state that wants to sustain its autonomy. The law forces the states to adopt and continually change. At the same time, that body of law can also be seen as an effect of the changing state. The state is a core part of increasing globalization: the increasing transnational, macro-regional and international relations of economics, politics, environment, information, culture, etc., i.e. the increasing (voluntary or enforced) fragmentation and ‘openness’ of states. The number and scope of such cross-border activities increases the need for extra-state regulations. Hence, real world changes facilitated by states create new regulation. Not only states create law. Corporations, especially on the international level, can be seen as ‘soft’ lawmakers. Through their establishment of best practices, standardizations, rules of conduct, contract principles and customary behavior, they become de facto regulators of corporate conduct, thus more or less formal ‘law-makers’. Sometimes these ‘soft laws’ become confirmed in state laws, sometimes not.45 Thus, markets are not only a ‘private’ domain of struggle between profit-making organizations, but also a terrain of legal mobilization and political conflict. The struggle between corporations and critical citizens becomes a legal battle, and in that struggle, the state is involved as a negotiator between social forces.

2. Social Movements’ Significance for International Law Law, and especially international law, is conventionally regarded as a territory of the state par excellence. In a Weberian sense, the constitution of the state as a legitimate monopoly of violence arises from its ‘rational-legal’ authority. The modern state is normally claimed to be ‘the law maker’, per definition. In this section, however, I argue this is only partly correct and that there is plurality of co-makers of the law, which opens a space for social movements. The law is made by the conjuncture of social forces, through a struggle between social groups, and the state is the (main) terrain where a negotiation between these battle forces is played out. It is possible to understand the state as a political battlefield of lawmaking. This indeed gives the state a role as an important

45. The exact meaning of ‘soft law’ is debated but broadly speaking includes such law and regulation that is not ‘hard’ in the meaning formally adopted by the state, with strong rules and sanction power. Instead its ‘Stability comes from softness’, see Teubner, ‘“Global Bukowina”: Legal Pluralism in the World Society’, supra note 19, at 21. For in-depth discussion on soft law, see e.g. ibid., supra note 19, or (visited 27 January 2012) or Jan Klabbers on ‘Reflections on Soft International Law in a Privatized World’ (undated paper, in the author’s possession).

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negotiator of social forces. Within the state a (temporary) institutionalization of battle results happens. International law has become a potent institutional structure through the struggle between former colonizing state powers and the new states that emerged in the post-colonial era of independence.46 When former colonies became new states they became a new factor within the General Assembly of the UN, especially in the period 1970-1988 due to the efforts of the Non-Alignment Movement and Group of 77. They strategically tried to use their potential majority position at the UN as a tool in their struggle against the post-colonial capitalist world economy, demanding what was called a ‘New International Economic Order’, NIEO.47 The transformation of the Bretton Woods Institutions from an exclusionary concern for world financial and economic stability into declaring ‘poverty reduction’, (environmental) ‘sustainable development’ and ‘democratization’ as their prime objectives – is a result of pressures created by critical Third World states and movements.48 The first wave of post-colonial resistance came from the new states that used the UN General Assembly (UNGA) in order to make demands and push for new legislation, trying to make development, modernization and progress possible. These internationally active states did achieve several improvements, and made themselves known through the UNGA, the Bandung Conference and its Alliance on Non-Aligned States, and most importantly the demand for a new, more equal world economy (NIEO). Still, this resistance was guided by the same values and discourse of development as the Western capitalist model, not questioning the meaning of ‘progress’, ‘growth’, ‘modernization’ or what should be developed, and how, in the interest of whom.49 They just demanded their fair share of the modernism the developed states enjoyed. A more fundamental criticism of the means and ends of ‘development’ came from the resistance by Third World grassroots movements. Since more than 30 years ‘IMF-riots’ are a regular form of resistance in the Third World.50 ‘Since 1976, at least 100 protests against Fund and Bank policies have occurred in dozens of countries around the world.’51 Wherever new ‘structural adjustment programs’

46. Rajagopal, International Law from Below, supra note 1. 47. Erik Voeten, ‘Clashes in the Assembly’, 54 (2) International Organization (2000) 185–215. 48. Balakrishnan Rajagopal, International Law from Below: Development, Social Movements and Third World Resistance, supra note 1, at chapter 5, especially at 104, 113. 49. Ibid., at chapters 4 and 5. 50. See the most complete list available in English on (visited 15 February 2010). An even more complete one exist in Swedish by Tord Björk (2002) ‘Toppmötesprotester 1968-2002’. Miljöförbundets Folkrörelsestudiegruppens rapport 2002:1, (visited 27 February 2011). 51. Global Exchange ‘How the IMF and World Bank Undermine Democracy and Erode Human Rights: Five Case Studies’ (2001), (visited 15 February 2010).

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were put in place, resistance exploded.52 In 1994 a rebellion among indigenous ‘Zapatistas’ brook out in Chiapas, Mexico, against the free trade agreement NAFTA. In 1999 a broad alliance of movements converged in protests in Seattle, USA, and creatively used the conflicts on trade policy on agriculture within the WTO conference and the lack of preparation by the Seattle police force, and made the WTO to collapse in front of the global media cameras.53 Beginning in 1996 in Chiapas and later in Porto Alegre, Brazil, 2001, these movements started to organize their own meeting space with strategic discussions, evaluations of campaigns and building of new networks. This kind of resistance mobilizations created the ‘water wars’ in Bolivia 2000 and South Africa 2003-2004 that forced privatization to withdraw.54 Several riots developed after increases in prices of food or gas, with a wave in 2007-2008,55 e.g. in South African townships56, in Western Africa 2008 (e.g. in Cameroon and Burkina Faso).57 Some of them developed into political rebellions against the government, like in Burma 2007, and some even made governments fall, like in Haiti 2008.58 The dynamic between popular resistance and institutional power politics is, however, complex. Some would propose, like the former World Bank Chief Economist Joseph Stiglitz, that the World Bank and IMF consciously provoked such riots and economic crises in order to increase their adjustments and restructuring of countries‘ political economy.59 This is possible, and it is not unlikely that such institutions are aware of the link between their policy ‘recommendations’ and ‘social unrest’ (as is the term the World Bank use). Still, as is seen from many of the examples above, such possible ‘provocations’ do not always lead to favorable outcomes in the eyes of IMF and the World Bank, and struggles sometimes lead to a retreat of market economic influence. 52. John Walton and David Seddon, Free markets and food riots: the politics of global adjustment (Blackwell: Oxford, 1994). 53. Stellan Vinthagen, ‘Motståndets globalisering’, supra note 38. 54. For ‘water wars’ in the world see On Bolivia see (visited 15 February 2010). On South Africa see (visited 15 February 2010). 55. For an overview of the wave of food riots during 2007-2008, see Wikipedia, search word ‘2007–2008 world food price crisis’ (visited 15 February 2010). 56. In South Africa there is a broad protest movement against the combination of poor service delivery and privatization by local township committees and the Anti-Privatization Forum (). In Soweto for example, the Soweto Electricity Crisis Committee organizes illegal electricity for people, stops evictions of those who are not paying or are prosecuted, and in general protest the privatized model of electricity meters. See more at (visited 15 February 2010). 57. See (visited 15 February 2010). 58. Walden Bello, The Food Wars (Verso: New York, 2009). On the forced regime change in Haiti, see (visited 15 February 2010). 59. See (visited 15 February 2010).

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International law is developed in relation to the resistance of states or social movements in the Third World,60 sometimes as a reaction against that resistance, sometimes as a concession to it. Lawmaking occurs through a dynamic interaction between social forces, played out through the state. According to Rajagopal61 this interaction should be seen as dialectic, leading to unintentional and unexpected outcomes (‘renewal’). There are many movements that are related to international law. With the purpose of illustrating their claims, strength and activities; ultimately their role in shaping international law, I will briefly summarize five major examples of movements. Some of them are exclusive Third World movements, while others, in a more promising way, entail transnational cooperation across the North and South. (I) Since the 1970s there has been a growing importance of international movements for human rights, organized by such NGOs as Human Rights Watch.62 Some of them, for example Amnesty International, utilize not only the political human right declaration, but also those on economic, social and cultural rights. Individual states that violate human rights are exposed and criticized. At the same time these groups advocate expansion and strengthening of international and national legal frameworks that protect various rights (e.g. protection against torture, or Rights of the Child).63 Also human rights groups that act under a dictatorship will benefit from the international movements, as for example the anti-slavery and woman suffrage campaigns, as shown by the dominant model on the role of ‘transnational advocacy networks’.64 Social groups that are heavily repressed, e.g. in the military regime of Burma, can supply international networks with information, and such internationals can then act, creating leverage on behalf of local groups. This kind of multi-actor alliances have been able to influence smaller or weaker states that have integrated the norms of international law, e.g. in the human rights struggle against the dictatorship in Argentina.65 (II) During the growth of movements for human rights there has been a growth of international cooperation between various movements of the over 300

60. Balakrishnan Rajagopal, International Law from Below, supra note 1. 61. Ibid. 62. Andrea Bianchi, ‘Globalization of Human Rights: The Role of Non-state Actors’, in Gunther Teubner (ed.), Global Law Without A State (Dartmouth Publishing Company: Aldershot, 1997) chapter 7, at 179-212; Bob Clifford, ‘Globalization and the Social Construction of Human Rights Campaigns’, in A. Brysk (ed.), Globalization and Human Rights (University of California Press, 2002). 63. See Bianchi, ‘Globalization of Human Rights’, supra note 62, at 186-187; Bob Clifford, ‘Globalization and the Social Construction of Human Rights Campaigns’, in A. Brysk (ed.), Globalization and Human Rights (University of California Press, 2002) 133-147. 64. Keck & Sikkink Activists Beyond Borders, supra note 10, at 1-38; Thomas Risse, ‘The Power of Norms versus the Norms of Power’, supra note 10. 65. Keck and Sikkink Activists Beyond Borders, supra note 9.

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million indigenous peoples in the world.66 Among them are the over 80 million ‘adivasis’ of India, the North American Indians, the various Indian nations of Amazons, and similar indigenous groups in Asia, Africa and Europe. Despite huge differences among indigenous peoples, there are striking similarities. ‘First nation’ peoples have struggled and still struggle against universal problems of exploitation and dominance by relatively newer ethnic groups (due to a history of settler colonization or invasions). International law has been part of the problem, giving a universal structure to the rationalization of this dominance over indigenous cultures, with e.g. the concept of ‘terra nullius’ that gave the right to occupy ‘no man’s land’. In the European mind-set, if no recognizable ‘state’ existed, there were no legal needs to make treaties with the ‘savages’ that happened to live there. Based on their common experiences, in the 1970s indigenous peoples started to organize on an international scale. Often these struggles focus on the normative and legal questions of land rights, resource control and ownership, cultural rights and autonomy.67 The reclaiming or ‘occupation’ of the Alcatraz Island 1969-1971 by Native Americans has become a symbolic starting point in the internationalization of indigenous rights. The creation of the World Council of Indigenous Peoples in 1975 signaled the formal affirmation of these collaborative efforts across various first nations. Their recognition and influence on the international arena grew with the establishment of the UN Working Group on Indigenous Populations in 1982 (UNWGIP). Indigenous peoples have played an active and direct role in getting the UN in 2007 to adopt the Declaration on the Rights of Indigenous Peoples.68 However, indigenous peoples do not only act in their own ‘indigenous movements’, but act together with others in common issues. Many different local groups that happen to live on land that is exploited for resources or mega development projects become victims of forced removal or displacement. In India alone some 30-50 million persons from various communities are currently living as displaced.69 These different groups cooperate with indigenous peoples and struggle over access

66. Ken Coates, A Global History of Indigenous Peoples: Struggle and Survival (Palgrave Macmillan: New York, 2004) at chapter 8-9; Ulf Johansson Dahre, Ursprungsfolk i internationell politik och rätt (Studentlitteratur: Lund, 2005) at chapter 3-5. 67. Pamela Martin and Wilmer Franke, ‘The Movement for Indigenous Rights: The Interplay between Global and Local Politics as Arenas of Social Change’ (conference paper presented at ISA 2006) (visited 1 June 2006). 68. Victoria Tauli-Corpuz, ‘How the UN Declaration on the Rights of Indigenous Peoples Got Adopted’, (visited 1 November 2011). See also UN Permanent Forum on Indigenous Issues, and the complete law text here: (visited 16 April 2011). 69. Arundhati Roy, Priset för att leva (Nya Doxa: Nora, 2001).

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to land, its resources and their traditional way of life, and become land rights and livelihood movements.70 (III) Similarly, there exists, since the Indian independence movement, the rights-based struggle by South Asian Dalits – the ‘downtrodden’; low caste, ‘scheduled casts’ or ‘untouchables’ (outcastes) groups, totally about 260 million people.71 Despite the fact that a Dalit lawyer, B. R. Ambedkar, wrote much of the new constitution of postcolonial India that abolishes untouchability, and Dalits got a president of India elected 1997, the social practice of repression and marginalization of Dalits continues today. Dalits struggle to overcome their repression by abolishing the caste system and to become recognized as victims of illegal racism and human rights violations. Among the Dalit mobilizations are for example major actors as the Dalit Buddhist Movement and the political party BSP, as well as numerous smaller groups like the Christian Dalit Freedom Network, the Dalit Panthers of India Party, the human rights group Dalitstan, or the magazine Dalit Voice. During the first Durban Conference on Racism (2001) the international focus of the situation of Dalits became a global issue, despite Dalit movements failing to make their situation internationally recognized, despite such legal failure also during Durban II (2009).72 However, there have been several decades of Dalit movement growth in India that has put legal claims by Dalits on the agenda. Discussions focus on issues like anti-discrimination laws, affirmative-action mechanisms in the Indian society, rights of religious conversion, social rights, etc. (IV) The ‘global justice movement’ did arise as what was firstly called the ‘anti-globalization movement’ during the protests in Seattle 1999 against the WTO.73 This ‘movement of movements’ articulates demands and concerns around legal themes such as (fair) trade, financial economics (e.g. limitation of tax havens and trade union rights in free trade economic zones), intellectual property rights, national ‘food sovereignty’, debt cancellations for poor countries, national or global democracy, poverty, people’s rights in relation to corporations, etc. After 11 September 2001, links were created between groups working with local development, social work and ethnic rights, and peace issues, leading to 70. Regarding movements in Peru, see Gavin Smith, Livelihood and Resistance (University of California Press, 1989). 71. Ghanshyam Shah, Social Movements in India: A Review of the Literature (Sage: New Delhi, 2004); John G Sommer, Empowering the Oppressed: Grassroots Advocacy Movements in India (Sage: New Delhi, 2001). 72. See Dalit organizations’ statements on Durban I and Durban II, and (visited 15 February 2010). 73. Paul Routledge and Andrew Cumbers, Global Justice Networks (Manchester University Press, 2009); Vinthagen, ‘Motståndets globalisering’, supra note 38; Vinthagen, ‘Is the World Social Forum a Democratic Global Civil Society?’, supra note 38.

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new contentious legal struggles, e.g. around the right to protest without being branded as ‘terrorist’.74 Under the World Social Forum activist organizers today conduct gatherings of up to 150 000 participants in the developing world.75 An unprecedented global movement mobilization is taking place, with new forms of resistance politics.76 (V) There has, since the 1970s, been a major growth of environmental movements and they are an important part of explaining the dramatic change in discourse that has transformed the agendas and activities of international institutions and national policies.77 Nowadays ‘sustainable’ development is mainstream. The introduction of environmental concerns at the World Bank is a result of the resistance done by e.g. the Narmada movement (see below) and the social movements in Brazil against the mega-motorway, the Polonoroeste project (1979-1989). Among the growing environmental concerns today is ‘climate justice’, which as a movement arose from national initiatives, e.g. in the Climate Camps in UK from 2006, and became a global network during the noncommittal negotiations between governments in the UN Climate Change Conference in Bali 2007, and became a visible transnational movement with the protests against COP15 in Copenhagen 2009.78 The movement is only in its early phase but has already played an important role in putting the issue on the global agenda and pushing actors to promise action plans.79 Transnational movements for ‘environmental justice’ are an example of how movements try to influence the law, in certain nations as well as internationally.80 Several different ‘environmental justice’ issues are articulated, e.g. related to waste dumps, desertification, water shortage and pollution, resource management, as well as mitigation and adaptation to the climate change, and compensation for the climate debt of the industrialized and ‘developed’ countries, etc. More examples could easily be added,81 but for our purpose it is enough to illustrate the extent of the transnational mobilization of movements and its vari74. Vinthagen, ‘Motståndet mot den nya världsordningen’, supra note 6. 75. Find updates and background on the World Social Forum at e.g. or openfsm.net// or (visited 27 January 2012). 76. Vinthagen, ‘Motståndets globalisering’, supra note 38; Stellan Vinthagen, ‘Is the World Social Forum a Democratic Global Civil Society?’, supra note 38. 77. John McCormick, The Global Environmental Movement (John Wiley: London, 1995); Richard Peet and Micheal Watts, Liberation Ecologies (Routledge: Oxford, 2004). 78. Vinthagen, Stellan, ‘Ten Theses On Why We Need A ‘Social Science Panel on Climate Change’’ (forthcoming by ACME, 2012). 79. Ian Angus, The Global Fight for Climate Justice (Resistance Books: London, 2009). 80. David Nguib Pellow, Resisting Global Toxics: Transnational Movements for Environmental Justice (The MIT Press: Cambridge, 2007). 81. Helmut Anheier, Marlies Glasius and Mary Kaldor (eds.), Global Civil Society 2004/5 (London: Sage, 2005); Donatella della Porta (ed.), ‘The Global Justice Movement: Cross-national and Transnational Perspectives, supra note 2; Jeff Heynes, Democracy and Civil Society in the Third World (Polity Press: Cambridge, 1997).

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ation. Now, when the legal relevance of these movements has been illuminated, the next logical step is to show how they try to influence the law: what ‘legal strategies’ or tactics and methods these movements use.

3. The Interaction Between Law and Resistance Movements Building on the previous description of various articulations of transnational legal activism it is possible to make a tentative typology of social movements’ aims and methods in their struggle to influence international law, i.e. their ‘legal strategies’.82

3.1. The ‘Legal Strategies’ of Transnational Social Movements 3.1.1. Active Use of Possibilities within Already Established Law Social movement organizations have since long cooperated with lawyers, law experts and law professors built on existing laws trying to force powerful criminals to face court proceedings. This is done through litigations or other forms of facilitating of prosecutions of organizations, corporations, states or individuals. Movement activists build on cases in which they have first-hand knowledge, from their own aid work in catastrophe areas, from their support to workers in mines, factories or at farms, from their work among slum-dwellers or war refugees. Activists collect witness reports and evidence, and try building up outrage over injustices, compelling action and use of the legal tools available. Social movements might pressure law institutions to act on issues even when powerful states try to block that. An international coalition of NGOs – ‘The World Court Project’ – were so instrumental in facilitating the 1994 UNGA resolution to request an International Court of Justice (ICJ) Advisory Opinion on the legality of nuclear weapons that it even was used as an argument by the nuclear weapon states in their failed campaign to dismiss the request.83 Already in 1987 a number of lawyers and legal experts began the work to build an international campaign to make UN bodies request the ICJ to issue a legal

82. Håkan Gustafsson and Stellan Vinthagen, ‘Rättens rörelser och rörelsernas rätt’ supra note 6; Angie Zelter, ‘Civil Society and International Law’, in Rebecca Johnson and Angie Zelter (eds.), Trident and International Law: Scotland’s Obligations (Luath Press: Edinburgh, 2011) 202-208. 83. Boisson de Chazournes and Sands (eds.), International law, the International Court of Justice and Nuclear Weapons, supra note 30, at 8-10; see also Angie Zelter, ‘Civil Society and International Law’, supra note 83 at 206-207.

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statement.84 Once established, the ICJ provides a new tool for activist use of established law.85 Tort law in the US has become the preferred and arguably the most promising tool for international activism.86 Here e.g. Chiquita, Barclay National Bank, Arab Bank, Unocal, Bridgestone, Del Monte, Coca-Cola and Rio Tinto ended up in legal proceedings after citizens’ litigations, and some of them had to pay compensations to victims affected by corporate policies and actions around the world. After the Nuremberg Tribunals numerous former state leaders have been brought to justice after they lost a war, in the special tribunals on e.g. Sierra Leone, Cambodia or Rwanda. That kind of justice, the justice of the victors, is nowadays commonplace. Today legal activists are trying to create another, more difficult form of justice – justice of the victims – trying to bring the powerful leaders, the victors and conquerors to justice. The most difficult ones are serving leaders of Western powers, but some of them are also the ones accused of the biggest crimes. Attempts have been made to bring Ariel Sharon, George W. Bush, Tony Blair and others to justice through private investigations and litigations to the ICC or other legal institutions. Social movement organized ‘Tribunals’ or ‘Citizens Commissions of Inquiry’ are cases in which activists try to create the court cases in situations when they have not (yet) succeeded to make the ordinary courts to act. Movements’ Tribunals often 84. Kate Dewes and Robert Green, ‘The World Court Project: How a Citizen Network Can Influence the United Nations’, in Ann Fagan Ginger (ed.), Nuclear Weapons are Illegal: The Historic Opinion of the World Court and How it Will be Enforced (The Apex Press: New York, 1998) 473-491. 85. Palestinian Popular Committees and the Anti-Apartheid Wall Campaign worked together with Israeli human rights lawyers and succeeded to bring a legal case to the International Court of Justice (ICJ), which ruled 2004 that the Israeli Wall or ‘Separation barrier’ was in violation with international law, see Legal consequences of the construction of a wall in the Occupied Palestinian Territory (Advisory Opinion) ICJ Reports (2004) 136; Julie M. Norman, The Activist And The Olive Tree: Nonviolent Resistance in Second Intifada (PhD-dissertation, Faculty of the School of International Service, American University, 2011, I use the manuscript version from September 2010) at Chapter 2. 86. Georg P. Fletcher, Tort Liability for Human Rights Abuses, supra note 34. One of the later cases involve a lawsuit using the Alien Tort Claims Act against several international corporations accused of aiding South Africa’s apartheid-era government, see ‘US court hears apartheid appeal’, Al Jazeera, 11 January 2010. There is a general increase in movement activism targeting the corporations directly the last decades, see Judith Richter, Holding Corporations Accountable: Corporate Conduct, International Codes, and Citizen Action (Zed Books: London, 2001). In the US alone there were some 144 civil suits against corporations in the period 1971-2003; Sarah A. Soule, Contention and Corporate Social Responsibility (Cambridge Studies in Contentious Politics, Cambridge University Press, 2009) at 17. This form of ‘anti-corporate activism’ is normally multi-layered and involves several targets at the same time: local corporations, municipal and national governments as well as multinational corporations and international regimes. Thus, this kind of activism is simultaneously local, national and international, involving laws of different kind at the same time.

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try to act the same as any ordinary international courts in dealing with a case. A movement-organized tribunal is a unique legal mobilization tactic to the extent that it applies similar legal standards as an official court. An illustrating case is the struggle against gender-based violence and for reproductive rights conducted by international coalitions of women’s organizations that brought women’s rights on the UN agenda through repeated tribunals (1976, 1984, 1993) modeled from the Nuremberg and Tokyo Tribunals.87 Their persistence paid off and finally they got their proposals on women’s rights as human rights adopted almost without controversy at the World Human Rights Conference 1993 in Vienna.88 There have been many other tribunals in history, e.g. the Russell Tribunal 1967 against the Vietnam War,89 the Vietnam war veterans’ investigation in US war crimes (’National Veterans Inquiry’ 1970, ‘The Winter Soldier Investigation’ 1971).90 Today such civil society organized tribunals operate during several years, e.g. the Permanent People’s Tribunal91 and the Russell Tribunal on Palestine.92 There are also occasional tribunals dealing with the crimes of the World Bank in India (2007),93 the human rights abuses by Indian police,94 the human rights crimes conducted by the Indian state in Kashmir,95 the violations against people in the Narmada dam project in India,96 the Iraq war97 or the 2008 attack on Gaza.98 87. Jutta M. Joachim, Agenda Setting, the UN, and NGOs: Gender Violence and Reproductive Rights (Georgetown University Press, 2007) especially at 126-130. They had major internal and organizational problems during the first tribunal 1976, but learned with time to create more inclusive and professional type of tribunals that made greater impact on the international discussions on gender-based violence (1993) and reproductive rights (1984), Jutta M. Joachim, Agenda Setting, the UN, and NGOs: Gender Violence and Reproductive Rights (Georgetown University Press, 2007) at 105-116, 122-130, 134-141. 88. Ibid., at 130. 89. See (visited 15 February 2010). 90. See (visited 15 February 2010). 91. See the Italian site of the tribunal that since 1976 had 33 sessions on different cases, (visited 15 February 2010). 92. The Russell Tribunal on Palestine (RTP) following the conclusion of the London Session on corporate complicity in Israeli violations of international law issued a Concluding Statement on the 22 November 2010. 93. The Independent People’s Tribunal on the World Bank Group in India, (visited 8 January 2011). 94. Personal communication with Pushkar Raj, director of People’s Union for Civil Liberties, 2009. See also website (visited 27 January 2012). 95. Personal communication with Mr Sahib from Peoples Right Center in Kashmir, in Ahmedabad, India, January 2010. 96. Interview with Mr Shripad, activist of NBA, the main movement that works for the tribal people in the Narmada valley. Interview conducted in Ahmedabad, India, January 2010. 97. See the ‘BRussels Tribunal’ 2004, , and Wikipedia, , and the World Tribunal on Iraq (visited 10 December 2011). 98. For the Russell Tribunal on Palestine, (visited 15 February 2010).

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Some activists take this legal investigating role one step further and conduct what is legally described as a ‘citizens arrests’ of suspected criminals. Since they do these arrests of political leaders or corporate CEOs, the arrests are normally not legal, but political statements, which might lead to the arrest of the activists instead ...99 On March 17 2009 the Mohawk activist Dacajeweiah (Splitting the Sky) tried to make a citizen’s arrest of George W. Bush, but got arrested himself, charged with ‘Obstruction of Justice’.100 The tentative lessons drawn from such experiments with what here is called movements’ extra-legal tribunals or arrests are that their legitimacy is based on their degree of success in acting impartial and investigating crimes done by all sides in a conflict, avoiding to be seen as a ‘kangaroo court’ of political propagandists.101 It is a practical challenge to collect well-documented evidence on crimes, even in dictatorships and war-zones. That is hard even for well-established and resourced legal institutions. In spite of difficulties: through investigative journalism that maps crimes committed by powerful actors, ‘citizens inspections’ at military bases or installations, witness collections, and the tribunal proceedings themselves, evidence is piled for future use when options arise. Still it seems to be unclear to what extent these extra-legal documentations lead to official prosecutions. One reason behind the seemingly failure to bring these cases forward is the weak involvement by international law experts in these movements, something I will return to below. 3.1.2. ‘Watch-dogs’ Exposing Breaches of Established Law102 Social movements also investigate corporations, states and other parties to international law through fact-finding missions and scientific reports, revealing failures to live up to the legal standards these parties officially subscribe to. The rationale here is ‘corporate social responsibility’ (CSR), a global trend towards responsible corporate policies and a PR work that supposedly gives a profitable

99. See for example George Monbiot who tried to make an arrest of John Bolton, (visited 15 February 2010). Or the anti-whaling activist that tried a citizens arrest of whale hunters, see ‘Activist “boards” Japan whaler’, Al Jazeera, 15 February 2010. 100. See www.globalresearch.ca/index.php?context=va&aid=16363 (visited 15 February 2010) Where it is stated that ‘Former US Attorney General Ramsey Clark [and] former Georgia State Representative Cynthia McKinney have accepted to testify in his defence.’ 101. One common way is to include (former) judges of international standing in the panel of a tribunal, as e.g. the Russel Tribunal on Palestine (RTP), which included Jose Antonio Martin Pallin, emeritus judge, Chamber II, Supreme Court of Spain, ‘The Russel Tribunal on Palestine Opens’, Al Ahram Weekly, March 2010. 102. I want to thank Prof. Brian Martin for help in understanding the research on ‘whistle-blowing’.

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corporate branding effect.103 The ‘watch-dog’ role of activists is a method that tries to enforce the implementation of existing laws and contracts or official policies. One example is SwedWatch, a Swedish based research NGO that makes independent studies and publishes reports on the behavior of the Swedish state and Swedish corporations abroad.104 Their criticism is sometimes a moral one, built on established moral standards or norms, exposing conduct that is an embarrassment for the corporations that subscribe to brands or logos connected to ‘corporate responsibility’. At the same time they function as private watchdogs against outright criminal acts by corporations. Furthermore, today not only business is framed as moral, but also states, as evidenced by the present attempt to brand Sweden as a country of ‘peace’ and ‘equality’. Thus any kind of logowatch becomes a potentially very powerful tool, especially when it is combined with ‘logo-bashing’, ‘cultural jamming’ or other consumer or citizen campaigns against corporate power and spin.105 There is no coincidence that several of the corporations that have been brought to court, such as Shell, Monsanto, Chevron or McDonalds, also have been targets of movements’ critical corporate logo activism. However, besides attacking logo images, there is a need to professionally investigate the legal situation and possible legal consequences of corporate or state behavior. Among several examples of such civil society organizations are the UK based Public Interest Lawyers that take on law cases concerning human rights, environment and migration, and the Institute for Law and Peace that ‘produce briefing papers on what laws are being broken and how’ or the Campaign Against Arms Trade.106 Lately, the soft power of information activists has been displayed: the release of secret information that reveals malpractice, double-talk, crimes or betrayal by states or corporations. The WikiLeaks’ release of secret communications that revealed fraudulent bank behavior in Iceland led to the fall of the government and criminal proceedings against bank managers. They have also revealed criminal conduct by Kenyan politicians, secret military communication on killings of civilians in the Iraq war, as well as massive doubtful behavior by elected 103. Susanne Soederberg, Global Governance in Question: Empire, Class and the New Common Sense in Managing North South Relations (Arbeiter Ring Publishing and Pluto Press: Winnipeg and London, 2006). 104. Some reports are in English, see SwedWatch’s, (visited 15 February 2010). 105. Naomi Klein, No Logo: Taking Aim at the Brand Bullies (Picador: New York, 1999); Judith Richter, Holding Corporations Accountable: Corporate Conduct, International Codes, and Citizen Action, supra note 86. 106. Angie Zelter, ‘Civil Society and International Law’, supra note 82, at 205-206, and footnote 11. See (visited 4 March 2011), for examples of the legal briefings INLAP produce on 10 December 2003 for two other organizations, TAPOL and CAAT from the UK, launched legal action against the UK Government’s arms to Indonesia policy, (visited 4 March 2011).

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representatives through the US Embassy cables. Although this might seem like a new activist method, it is not.107 WikiLeaks is only new in terms of its scale, the scale of information released and its role as a mega-gateway for many different whistle-blowers. ‘Whistle-blowing’ has a long-standing tradition, and different channels for this kind of pressure have existed for a long time. In some countries even legal protection is given to (some) employees, e.g. in Sweden where public sector employees are given protection, although reprisals continue to be a problem. Lack of (effective) legal protection does not, however, stop all private sector workers to blow the whistle, because workers want to inform others about corruption and dangers to the public.108 The infamous ‘Bofors affair’ in which the (then) Swedish firm Bofors sold Haubits canons to India with the help of substantial bribes, facilitated by the internationally respected peace-maker, Third World champion and prime minister of the Social Democrats, Olof Palme – was an affair that was revealed through an activist researcher from the Swedish Peace and Arbitration Society (SPAS).109 The researcher, Henrik Westander, was paid a salary from voluntary contributions and had developed his knowledge through own efforts, and with time he gained the respect by the mass media. He was at the time, in the mid 1980s, arguable the best-informed person on Swedish weapon trade and did regularly release damaging reports about Swedish militarist hypocrisy. When a whistle-blower from within Bofors made contact with him, and gave him access to inside information on illegal trade, he filed a most damaging legal complaint against Bofors at a police station. Then the police made further investigations, and new stories came up. Soon it developed into one of the major political scandals in Swedish history. 3.1.3. Mobilizing Public Pressure for Legal Change It is of course not enough to use and police established law. Sometimes activists argue the law needs to change. Before a new law can be formulated, before it can go through all political procedure and become adopted, there is a need for politicians to get properly informed on the matter. Professional NGOs, some which are integrated in social movements, are lobbying these politicians as well as other people involved in administration of new laws. These lobbyists serve politicians with ready-made summaries of facts, figures and arguments, trying 107. Ralph Nader, Peter J. Petkas and Kate Blackwell (eds.), Whistle Blowing: The Report of the Conference on Professional Responsibility (Grossman: New York, 1972). 108. Myron Peretz Glazer and Penina Migdal Glazer, The Whistleblowers: Exposing Corruption in Government and Industry (Basic Books: New York, 1989); Brian Martin, The Whistleblower’s Handbook: How to Be an Effective Resister (Envirobook: Charlbury, UK: Jon Carpenter; Sydney, 1999). 109. For general information about SPAS, (visited 15 February 2010).

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to convince them to make the proposals, initiatives or adjustments needed and vote for new necessary laws. Anne Walker remembers from the World Conference on Human Rights: ‘Women’s rights activists were the ones who camped in corridors, outside the drafting rooms, and offered delegates better paragraphs. They tried to catch state representatives during their tea and coffee breaks or even in the bathrooms’.110 Such lobbying can be rather effective if applied correctly, but seems generally to be limited in its effects on policy.111 Some organizations are able to use their consultative status within multilateral regimes (e.g. the UN or the World Bank) to lobby for legal changes.112 Lobby work is not only aiming for the creation of new laws, but sometimes for amendments or the repeal of existing laws, or for increased efforts in implementing laws effectively. Lobbying demands creative development of arguments, access to the ‘right’ people, and, most importantly, effective leverage (e.g. through big constituencies, media attention or ability to create critical public debates).113 Here social movement organizations need to be efficient, well organized, get the access, condense the information and compete with the much more resource strong corporate lobbyists doing the same business.114 110. Quoted in Joachim, Agenda Setting, the UN, and NGOs, supra note 87, at 129. 111. David Humphreys, ‘Redefining the Issues: NGO Influence on International Forest Negotiations’, 4 Global Environmental Politics (2004) 51-74; Alison Van Rooy, ‘The frontiers of influence: NGO lobbying at the 1974 World Food Conference, the 1992 Earth Summit and beyond’, 25 World Development (1997), 93-114. Van Rooy claims in the abstract that ‘An analysis of Canadian and British development NGOs’ lobbying of their own governments ... suggests that NGOs have the most influence in highly salient, low policy issues accompanied by early and continuous access to decision-makers.’ Humphreys, in an analysis of NGO-lobbying on international forest policy, claims in the abstract a similar line that ‘in the short term, NGOs are more effective when they: 1. involve themselves in the early stages of negotiations, 2. suggest substantive and procedural ideas that are already well-known in fora outside forest politics, and 3. align their suggestions with the prevailing neoliberal discourse of international politics. The paper suggests that such conditions can be rather limited and thus speculates about NGO efforts within a longer time frame.’ However, the detailed study by Joachim, Agenda Setting, the UN, and NGOs, supra note 87, on the lobby work by international coalitions of women’s movements shows how skilled and long term lobbying is sometimes able to change the entire understanding of what ‘human rights’ mean (‘women’s rights as human rights’). 112. Nora McKeon, The United Nations and Civil Society (Zed Books: London, 2009). 113. Movements are not only trying to create pressure through arguments, reports and other lobby techniques. There are several movements that try to create pressure on governments and corporations, making them accept legal amendments, exceptions, change and abolishment in order to protect workers, homeless, women, children or HIV-infected people around the world. One such strong movement is the international anti-sweatshop movement, based at US universities, which try to press for better work conditions and unions rights in Free Trade Zones in the Global South, organizing boycotts and media-campaigns, see Ralph ArmbrusterSandoval, Globalization and Cross-border Labor Solidarity in the Americas: the Anti-sweatshop Movement and the Struggle for Social Justice (Routledge: Oxford, 2005). 114. Numerous corporate lobby groups influence the climate negotiations, as e.g. in Copenhagen.

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One of the more successful movement campaigns is the Treatment Action Campaign (TAC) who forced medical corporations to allow the production of generic copies of HIV/AIDS medicine in South Africa and the ‘Doha Declaration on the TRIPS Agreement and Public Health’.115 The Treatment Action Campaign (TAC) (1998-) is a campaign that consist of thousands of HIV-infected, relatives of those infected, and others acting in solidarity and that demand free medication (’antiretroviral access’) and treatment for all infected, as well as sex-education programs. The campaign use tactics such as a combination of civil disobedience, legal proceedings, marches, revealing documents, international campaigning, etc. TAC won several major legal victories, against AIDS ‘denialists’, as well as one against the South African government (for not protecting children during birth by mothers with HIV), and acted in defense of the government when pharmaceutical companies tried to sue the government for violating patent rights on HIV/ AIDS-medicines. The companies withdrew from the case to avoid a dangerous legal verdict against the industry and thus the government won. Still, the government of Mbeki maintained their AIDS denial.116 TAC estimates that as many as two million people might have died prematurely because of lack of medical help. Still, after long struggles, TAC won a full victory and today antiretroviral access is the official policy, although in reality it is still not secured. The victory of TAC is an example of how the application of and tensions within international law (patent rights vs. health rights) might be transformed by social movements. Here the change only happened in South Africa, and has not even spread across the border to the much poorer and equally hard hit Zimbabwe. Still, the campaign engaged international patent rights, affected transnational corporations and made an international example of itself. In that sense it is an example of social movement influence on international law.117 3.1.4. Challenging ‘Unjust’ Laws or Legal Practices: When movements are not able to change the law (quick enough), they might challenge its legitimacy through confrontative actions, acting as ‘global citizen

See the documentation of their activities on CEO, . See also (visited 6 March 2011). 115. Mario Pianta and Raffaele Marchetti, ‘The Global Justice Movements: The Transnational Dimension’, in Donatella della Porta (ed.), ‘The Global Justice Movement: Cross-national and Transnational Perspectives (Paradigm Publishers: Boulder, 2007) 29-51, at 38. See the official website, (visited 6 March 2011). 116. Mbeki claimed there were no clear link between HIV and AIDS, that the medicine didn’t help and had even bigger side-effects, and that ‘natural’ medicine had better effects, etc. 117. Among current similar attempts there is the International Campaign to Abolish Nuclear Weapons (ICAN), which aims for a Nuclear Weapons Convention that will ban nuclear weapons all together. See (visited 4 March 2011).

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crime preventors’.118 These kind of actions are happening regularly and sometimes involve massive civil disobedience, as when tens of thousands activists, 600 tractors and massive flocks of sheep and goats blockaded the Castor nuclear waste train along its route in Germany in November 2010.119 When activists break certain laws they regard as ‘unjust’ they fail normally in court and get sentenced. On the other hand, often they get lenient or no punishment, due to their legitimate and non-criminal intentions. Sometimes it does happen that they get acquitted, and then not only for formal or procedural reasons, they do occasionally achieve legal approval of their claims. In several cases international legal principles and norms have been used successfully as arguments in national courts, also in countries where national law is not regarded as subordinated to international agreements, as e.g. the UK. Greenpeace activist were acquitted in Sept 2008 by the jury in a UK Crown Court of criminal damage to a coal power plant because the jury considered the damage made by the CO2 emissions from the power plant to be far greater.120 This great victory, however, did not lead to the closure of the coal factory, but resulted in 2009 in a ‘pre-emptive’ arrest of 114 activists before they could do a new action. Later on, 20 of these activists were found guilty of conspiracy.121 Several acquittals have also occurred in cases using the defense of the ICJ Advisory Opinion 1996 on the ‘Legality of the Threat or Use of Nuclear Weapons’.122 The International Court of Justice found that in ‘general’ the use or threat to use nuclear weapons were illegal, and nuclear weapon states had a legal obligation to ‘conclude’ disarmament negotiations.123 Directly inspired by the historic legal interpretation of the World Court, the Trident Ploughshares campaign in the UK built its campaign of civil disobedience and disarmament actions at nuclear facilities at various arms factories and military bases, and ended up in numerous 118. Zelter, ‘Civil Society and International Law’, supra note 82, at 207. 119. See e.g. (visited 6 March 2011), and Peace News 2528-29 (December 2010 – January 2011) at 3. The actions against the nuclear waste transports are ongoing since several years. 120. This was the ‘Kingsnorth Six’ action against the Kingsnorth coal-fired power plant. See (visited 15 February 2010). 121. There is, however, a review being done by the Crown Prosecution Service due to irregularities from undercover policing, see (visited 6 March 2011). Corporations also organize this kind of spying, see (visited 6 March 2011). 122. Ann Fagan Ginger (ed.), Nuclear Weapons are Illegal: The Historic Opinion of the World Court and How it Will be Enforced (The Apex Press: New York, 1998) at 462. Legal evaluations of the ICJ Advisory Opinion are collected in Boisson de Chazournes and Sands (eds.), International law, the International Court of Justice and Nuclear Weapons, supra note 30, and an evaluation from an anti-nuclear weapon activist perspective is found in Ann Fagan Ginger (ed.), Nuclear Weapons are Illegal: The Historic Opinion of the World Court and How it Will be Enforced (The Apex Press: New York, 1998). 123.Legality of the Threat of Use of Nuclear Weapons (Advisory Opinion) ICJ Reports (1996) 226.

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court cases between 1998 and 2006.124 In several cases activists were acquitted, mostly by what lawyers call a ‘perverse verdict’, i.e. an acquittal by the jury against the recommendation by the judge. On the other hand, in one case it was even the judge that acquitted the protesters.125 That acquittal was possible after extensive legal arguments by the activists, and expert witnesses from people such as Judge Ulf Panzer from Germany that talked ‘about the judges and lawyers in the 1980‘s who took part in a blockade of a nuclear base and who defended themselves in front of their peers by citing their rights in international law’.126 However, this unique ruling by Sheriff Gimblett was later revoked by the High Court. As of now, at least nine groups have been acquitted in the US, UK, New Zealand and Ireland.127 Thus, when activist do civil disobedience it is a challenge of the law, not ignorance or disrespect, not even necessarily illegal.128 Sometimes, their combination of political and legal arguments makes the legal system accept their position. The 124. See (visited 15 February 2010). 125. John Meyer, Nuclear Peace: The Story of the Trident Three (Vision: London, 2002); Angie Zelter, Trident on Trial: The Case for People’s Disarmament (Lutah Press Ltd.: Edinburgh, 2001). The case was ‘Trident Ploughshares – Loch Goil’, Greenock Sheriff’s Court Reference No. 9900020493, acquittal on October 21 1999. See also the extensive legal arguments by one of the defenders; Angie Zelter, on (visited 3 March 2011). Sheriff Margaret Gimblett instructed the jury at the Greenock Sheriff Court that: ‘I have to conclude that the three accused in company with others were justified in thinking ... [as] suggested in the International Court of Justice opinion, the threat or use of Trident could be construed as a threat, has indeed been construed by others as a threat and as such is an infringement of international and customary law .... The three took the view they had the obligation in terms of international law to do whatever they could to stop the deployment and use of nuclear weapons in situations which could be construed as a threat. ... I have heard nothing which would make it seem to me that the accused acted with criminal intent. ... Therefore I intend to instruct the jury that they should acquit all three ...’: quoted from . On this ruling by Sheriff Gimblett, see also comments by the BBC and the Lawyers Committee on Nuclear Policy (all three sites visited 15 December 2011). 126. Quote from a presentation handout by Angie Zelter during a tour in Sweden; ‘Why Internationals are Coming to Lulea in July?’ (February/March 2011) at 14 (copy accessible from the author). The judges in Germany used e.g. the arguments that the Nuremberg Principles gave them not only the right but also the duty to try to prevent preparations for war crimes. 127. For a collection of eight cases, see Höglund, Carl-Magnus, ‘Aktivister frias i England, men inte i Sverige’, 4 Pax (2010). While the ninth came 25 February 2011: (visited 4 March 2011). For details about the first case, see court files on ‘Seeds of Hope – East Timor Ploughshares – Women Disarming for Life and Justice’, Liverpool Crown Court Case No. T961301, acquittal by jury on July 30 (1996). See also Angie Zelter, ‘Civil Society and Global Responsibility: The Arms Trade and East Timor’, 18 International Relations (March 2004). 128. Stellan Vinthagen, Ickevåldsaktion – En social praktik av motstånd och konstruktion [Nonviolent Action – A Social Practice of Resistance and Construction] (PhD-dissertation, Department of Peace and Development Research, PADRIGU: Göteborg University, Göteborg, 2005).

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effect of such actions is not just in legal text, but also in changed legal discourse. Actions like the Faslane 365, which made anti-nuclear blockades of the Trident nuclear submarine base in Scotland, changed the nature of the debate, and influenced politicians’ concept and understanding of international law.129 The Scottish Parliament organized hearings with law experts and anti-nuclear activists and today several Members of the Scottish Parliament say Trident is illegal under international law and the Scottish Government did set up of a working group on nuclear weapons. However, it seems that in order to make a difference it is not enough to change (the interpretation of ) the law, it seems the whole legal system, including its institutions and legal discourse need to change. Otherwise these acquittals of activists destroying equipment for nuclear weapons would make it legal to destroy nuclear weapons, thus illegal to have them, and there would be unilateral disarmament in the UK and no more nuclear weapons. That is, obviously, not yet the case. 3.1.5. Social Movements as ‘Law Makers’130 Movements are normally seen as operating ‘outside’ of the actual law-making; lobbying law makers, promoting litigations in order to mobilize legal sanctions by courts, or occasionally breaking laws they consider ‘unjust’. These ‘extraparliamentary’ activities are all relevant and important. On the other hand, social movements are also involved in the proactive and direct creation of new international law as shown in the creation of the international Mine Ban Treaty (the ‘Ottawa Convention’) in 1997, facilitated by The International Campaign to Ban Landmines, (ICBL).131 The issue of landmines was stuck in the UN body on ‘inhumane weapons’ where progress was blocked by adoption of a weaker protocol that still permitted use of the weapon.132 In 1992 a number of human rights and development organizations (e.g. Human Rights Watch, war-veterans, 129. Angie Zelter (ed.), Faslane 365: A Year of Anti-Nuclcear Blockades (Luath Press Limited: Edinburgh, 2008). 130. This whole section, besides Tarrow, The New Transnational Activism, supra note 2, at 173-175, has benefited greatly from comments by Yeshua Moser-Puangsuwan, long-standing worker for the international campaign against landmines. 131. Motoko Mekata, ‘Building Partnerships toward a Common Goal: Experiences of the International Campaign to Ban Landmines’, in Ann Florini (ed.), The Third Force: The Rise of Transnational Civil Society (Carnegie Endowment for International Peace, and Japan Center for International Exchange: Tokyo, 2000) 143-176. The Mine Ban Treaty (‘The Convention on the Prohibition of the use of Anti-personnel Mines’) became legally binding 1999. Today 133 countries have signed it, see (visited 20 January 2011). 132. Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which May be deemed to be Excessively Injurious or to have Indiscriminate Effects, 10 April 1981, in force 2 December 1983, 1342 UNTS 137.

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disability activists, Medicines san frontier) took the initiative to create a campaign. Growth of the movement was slow at first, but within four years it obtained the support of more than 1 400 civil society and nongovernmental organizations that were organized under 90 national level campaigns. Their creative idea was to bypass the UN body, where states that were against a ban could block such an effort and instead gather those who were for a treaty. These civil society actors took the initiative of creating a new international process, which resulted in the creation of the first international disarmament treaty outside of normal UN multilateral frameworks. They did not just mobilize for the implementation of existing laws or propose new ones, as seen many times before:133 they created the favorable conditions for new law-making. The civil society movement partnered with some key states, most importantly Canada, to mobilize this.134 A series of international meetings with the express intent of creating a new humanitarian disarmament treaty, called the ‘Ottawa Process’ took place with the participation of both states and civil society. This success was due to the joint venture of the initiative and the drive and pressure from civil society that succeeded to create a new norm, together with the law-making capacity of some willing states.135 Before this campaign it was widely regarded impossible for civil society to affect international security issues. That is so, since state security issues are seen as a ‘high-profile’ ‘policy domain’.136 The campaign created in that sense a new space for activism, as enthusiastically described by one of the campaigners: ‘The door has not only been opened, it’s been ripped off the hinges and the frame has been torn out of the wall – it can never be shut again.’137 Since that time several other campaigns have benefitted from this opening such as the recently successful conclusion of the convention banning cluster munitions138 and the campaigns on small arms and on child soldiers.139

133. Keck & Sikkink Activists Beyond Borders, supra note 8. 134. Tarrow, The New Transnational Activism, supra note 2, at 173-175. 135. Ibid., at 174. Tarrow’s conclusion is confirmed by my personal conversation with Yeshua Moser-Puangsuwan (Ahmedabad, 27 January 2010). 136. Hanspeter Kriesi, Ruud Koopmans, Jan Willem Dyvendak and Marco G. Giugni, New Social Movements in Europe: A Comparative Analysis (UCL Press Ltd.: London, 1995) at chapter 4. 137. Personal conversation with Yeshua Moser-Puangsuwan (Ahmedabad, 27 January 2010). 138. The Cluster Munition Coalition (CMC), with some 350 NGOs, has tried since 1997 to get cluster bombs banned in an international treaty, and in 2008 it achieved a Convention on Cluster Munitions, see CMC, ‘Cluster Munition Coalition Annual Report 2008’, (visited 26 January 2012). 139. The Ottawa Treaty is an example of what movements can achieve: the creation of new norms and laws. Although few movements will be strong enough to do the same, social movements are often the idea-givers or supporters of new law proposals.

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3.2. The Dynamic Interaction of ‘Legal Mobilization’: ‘The Temples of Modern India’ From the previous discussions it is clear that social movements have at least some influence on international law in some occasions. Obviously international law influences the life of the activists, at least indirectly. With influence from each side (movements and the law) there is an interaction. However, this interaction is happening between two evolving and emerging phenomena, and actors articulating either legal systems or movement cultures learn from their experience and continuously change their strategies and methods, dealing with each other. Thus, they mutually constitute each other. Therefore, it might be more correct to speak of a ‘transaction’ that transforms actors while action processes goes on. In order to understand the interaction or transaction between law and activism there is a need to take the attempts by movements to influence the law into account, at the same time as recognizing the influence international law might have on social movements. International law might tentatively and generally be said to have three forms of influence: Creating a formal version of the already international opportunity structure in which movements operate,140 which decides the combinations of legal opportunities/threats movements need to relate to. Creating citizens’ basic perceptions of what kind of (international) ‘rights’ and ‘justice’ there are to expect. Movements might partly build upon and partly counter elements of this popular perception on rights/justice (’master frame’), created by the existing legal discourse. Establishing judicial reactions to movements’ resistance with various means such as ignorance, repression or recognition. Beside these formal structures, rights discourse and legal reactions to resistance, there are numerous other more informal power relations that matter, but such analysis is outside of the scope of this study. Thus, informal and formal power relations on the international level are expressed through mechanisms and institutions that both constitute the environment in which movements grow, and the reaction to which the movements need to respond in their turn. Since this interaction is not simply an exchange of actions – one acting and the other reacting – but rather an interaction or transaction of mutual considerations and modifications which simultaneously structure all further actions, there is a situation that also produces unintended effects, new results that maybe none of ‘the sides’ (e.g. legal, institutional, corporate or movement actors) in the interaction actually tried to reach.141 Thus, there is a need to take the analysis one step further. 140. Tarrow, The New Transnational Activism, supra note 2. 141. One possible explanation for this effect might be the fact that the struggle between various

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One illustrating case of such socio-legal interaction dynamics, resulting in things that are beyond the intentions of various actors, is the Narmada struggle. The choice of case is motivated by wanting to look on a struggle that is played out on several levels (local, national and international), over longer time and with clear power relations. This is a struggle that is combining mass-based resistance and legal arguments in courts, one that tries to combine all legal strategies discussed above, and it is a prolonged struggle under severe circumstances, against key interests of states, international institutions and transnational capital. The struggle in the Narmada valley has been going on since the beginning of the dam project in the 1970s, but it was with the resistance movement Narmada Bachao Andolan (‘Save The Narmada’, NBA, 1989-) that the struggle escalated to a new level. NBA consists of tribal people and urban intellectuals that struggle against the mega-development project with hundreds of large dams across the Narmada river, especially the big Sardar Sarovar dam.142 This water dam system is one of the biggest in the world. The nonviolent resistance movement NBA unites different local groups affected by the dam project, as well as environmental and human rights activists, health workers, academics, lawyers, journalists, all over India. This dam project is an articulation of a ‘mega development’ discourse, involving several intersecting interests. Here is the political-economic interest of the new ‘Shining’ India formulated by elites in the national center of India: New Delhi, as well as the interests of three Indian states (Madhya Pradesh, Gujarat and Maharashtra), urban middle-class populations in Indian cities, and agricultural industries (e.g. sugar plants). Initially the Narmada dam system was also a favored investment project of the World Bank and several transnational corporations. Thus, the dam project unites some of the more powerful actors in the world. However, in the way of its realization stand the local tribal people that live on the vast territory of this planned dam system. social forces (politicians, media, social movements, NGOs, lobby groups, etc.) creates new openings for the politically appointed personnel within the multilateral regimes (e.g. the Human Rights Commission of UN). They are part of the gigantic bureaucratic infrastructure that has to mediate between various interests and forces, and their initiative and ability to influence actual implementation of existing laws and treaties will matter. It is not impossible that strong battles in the public arena between more visible policy contenders might increase their possibility to reconstruct institutional procedures and rules. (I thank Robert Tolonen for putting forward this thought). 142. Jean Drèze, Meera Samson and Satyajit Singh (eds.), The Dam & The Nation: Displacement and Resettlement in the Narmada Valley (Oxford University Press: New Delhi, 2000); William Fisher (ed.), Toward Sustainable Development?: Struggling Over India’s Narmada River (M. E. Sharpe: New York, 1995); Rajagopal, ‘The Role of Law’, Supra note 13; Arundhati Roy, Priset för att leva, supra note 69; Sanjay Sangvai, The River and Life – People´s Struggle in the Narmada Valley (Earthcare Books: Mumbai, 2000); Jai Sen, ‘Development projects and the Adivasi: What kind of country do we want India to be?’, 19 (August) Mainstream (2000).

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The celebration of dams as ‘the temples of Modern India’ (as quoted from prime minister Nehru)143 is met by a resistance based in a total contrasting world of values. This resistance arises from the sustenance economy and local way of life of tribal villages in the Narmada valley, the NBA movement of radical intellectuals and tribal activists, and counter values articulated as local village development (‘territorial development’ or ‘another development’). Therefore, the Narmada dam system concerns not only some of the more powerful actors in the world, but also some of the most marginalized: the indigenous people in India. India is a rapidly growing economy, with over 8% GNP growth on average since 2004, today one of the world’s top 20 economies.144 However, India is also a country with a majority of its population living in poverty. There is an increasing need for development in India, especially a development that is inclusive of the poor majority of the country. Yet, this particular type of development simultaneously bereaves some of the most marginalized, downtrodden and poor members of that society of their only means of survival: their traditional land rights. The Narmada movement has used several different tactics in their resistance to the dam project.145 They have done legal petitions (and reached the Supreme Court of India several times), lobby-work of politicians and Bollywood film stars, as well as more classic movement actions, like marches, rallies, blockades or sit-ins at offices (‘dharna’), hunger-strikes, and a drastic and well-publicized type of action; Jal Samarpan (Sacrifice in Water), i.e. villagers that stay in their village despite rising water, even when the water reaches their chest and they risk drowning. The NBA movement has mobilized the local tribal people – the Adivasis – as well as support among urban groups, within the three directly involved states, the Indian nation, as well as internationally. Especially since 1989 there have been several mass-based resistance actions. Activists have repeatedly tried different legal avenues and developed their legal arguments, but mostly in vain. They have tried the Narmada Water Disputes Tribunal, only to learn how the tribunal ‘was itself a creature of politics’ and led to nowhere.146 Similarly they have petitioned and gained victory several times in different District and 143. This quote from Nehru has created much debate on how to view large development projects, especially the dams in India. It was said in a speech 1955, but already 1958 Nehru was critical and called the big dam projects ‘a disease of gigantism’. See the article ‘Framing India’s Hydraulic Crisis: The Politics of the Modern Large Dam’ by assistant professor Rohan D’Souza at (visited 14 December 2011), and the commentary by Arundhati Roy, ‘The Greater Common Good’ , (visited 14 December 2011), and the interview with the NBA leader Medha Patkar at (visited 14 December 2011). 144. See e.g. (visited 28 May 2011). 145. Rajagopal, ‘The Role of Law’, supra note 13. 146. Ibid., at 356.

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High courts, and utilized the ILO Convention 107, as well as environmental legislation, etc. without substantial success on the ground.147 The anti-dam activists of NBA have become a global symbol of people power, inspiring others. They have facilitated awareness of environmental, rehabilitation and relief aspects of dam projects. Furthermore, they have facilitated an ongoing critical development discussion, fueling criticism of ‘mega-development‘, which despite having development effects for some groups in society has poverty-effects on local people (Sen 2000b). Through the work of the anti-dam activists a discussion on ‘Development, for who?‘ has increased. The result of this conflict is, however, not that one actor wins or that they all compromise. After a lot of resistance by anti-dam activists, especially in a combination of mass-based resistance actions, and a more judicial and international struggle, the World Bank withdrew 1993, as did several TNCs. However, today the building of the dam proceeds, despite the fact that it had been stopped during several years by a (temporary) NBA ‘victory’ in the Indian Supreme Court 1995 (a ‘stay-order’ during the legal process). When the court stopped the project it argued that the rehabilitation and replacement process had to be completed first. Then, in 1999 the Supreme Court instead threatened activists with ‘contempt of court’ and in 2000 the Court allowed the construction and even claimed it was urgent to complete the dam project.148 At that point, the legal strategy backfired and the ‘limits of law in counter-hegemonic globalization’, both national and international law, became clear.149 Even if the dam system is now progressing, the struggle resulted in at least three major ‘victories’ for the activists:150 (1) a unique World Commission on Dams that tries to develop international norms and standards for dam projects,151 (2) the World Bank adopted an ecological sustain147. Ibid., at 367 especially. Despite e.g. a victory against forcible evictions (something the Supreme Court earlier declared unconstitutional) in the Bombay High Court 1990, ‘forced evictions ... continued’, and despite some key support from a government review panel and victories in the Gujarat High Court 1993 and 1994 both the work on the dams and forced evictions continued irrespective of an unsatisfactory resettlement process, see ibid., at 367, 368. 148. This process is in itself an interesting research problem to try to understand, Rajagopal suggests it might be because of the retirement of two members of the Supreme Court that were ‘more friendly to the NBA’s cause’, ibid., note 127. The ‘contempt of court’ case was withdrawn, but the NBA instead filed a petition against the involved state governments of contempt. 149. Balakrishnan Rajagopal, ‘Limits of Law in Counter-hegemonic Globalization: The Indian Supreme Court and the Narmada Valley Struggle’ (Working Paper Series, Centre for the Study of Law and Governance, Jawaharlal Nehru University: New Delhi, May 2004). 150. Rajagopal, ‘The Role of Law’, supra note 13, at 385-386. 151. The World Commission on Dams, is an important institution since it brings together stakeholders from the industry, states and movements, and this WCD is clearly a result of the struggle against dams, see the analysis of the former staff member of WCD assistant professor Sanjeev Khagram, Sanjeev Khagram, ‘Toward Democratic Governance for Sustainable Development: Transnational Civil Society Organizing Around Big Dams’, in Ann M. Florini (ed.), The Third Force: The Rise of Transnational Civil Society (Carnegie Endowment for

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able policy for all its future projects and an Inspection Panel that gives victims of World Bank projects a right to redress, and (3) one of the Indian states (Gujarat) adopted already 1988 a unique resettlement and rehabilitation policy, however, the effect was noticed in the legal texts, not in the legal implementation.152 None of these three results were the main intention by any of the actors. They all tried to avoid these results. Judged from the main goal of NBA, the movement is a failure. The dam is built despite ongoing resistance. The rehabilitation and resettlement process in Narmada is largely unsatisfactory, for many even a social catastrophe.153 Despite this, the NBA is correctly regarded as a world symbol of the power of locals’ persistent resistance, a power that forced the World Bank and several TNCs to withdraw and an Indian State to adjust its policies. Local empowerment of tribal activists is also happening, and the social conditions would arguably have been much worse, had it not been for the Narmada Bachao Andolan. However, the dynamic interaction between law and movements is not easily predictable, since various legal frameworks, levels or elements might get activated and it does not seem possible to know beforehand what will facilitate a resistance movement.154 In this case it is possible to argue that it was the movement victory on the international level – forcing the World Bank to withdraw after criticism and international mobilization of movement alliances – that at the same time paved the failure of the movement.155 Once the World Bank had withdrawn, and the Indian state committed itself to proceed and finance the development project itself, the movement became fully dependent on the Indian legal system and courts.156 When the Supreme Court of India ruled in favor of International Peace, and Japan Center for International Exchange: Tokyo, 2000) 83-114, and the official site of the WCD follow-up body Dams and Development Project (DDP), (visited 21 May 2010), where it is stated: ‘Brokered by the World Bank and the World Conservation Union (IUCN), the World Commission on Dams (WCD) was established in May 1998 in response to the escalating local and international controversies over large dams’, see (visited 21 May 2011). According to Khagram ‘the WCD is the most innovative international institutional experiment today, and if it is successful, the WCD could pave the way for a wave of novel multistakeholder global policy processes in the twenty-first century’, Sanjeev Khagram, ‘Toward Democratic Governance for Sustainable Development: Transnational Civil Society Organizing Around Big Dams’, in Ann M. Florini (ed.), The Third Force: The Rise of Transnational Civil Society (Carnegie Endowment for International Peace, and Japan Center for International Exchange: Tokyo, 2000) 83-114, at 105. 152. Jai Sen, ‘Milestone or landmark? The Narmada Case in Historical Perspective’, 11 (March) Mainstream (2000). 153. Drèze, Samson and Singh (eds.), The Dam & The Nation, supra note 143; Fisher (ed.), Toward Sustainable Development?, supra note 143; Roy, Priset för att leva, supra note 79; Sangvai, The River and Life, supra note 143. 154. Rajagopal, ‘The Role of Law’, supra note 13. 155. Ibid. 156. Ibid., at 386.

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the dam project, the movement had no use of its strong international standing, and it lost momentum.157 Thus, no one is a clear winner, no one a clear looser, and legal and institutional frameworks have transformed.

4. ‘International Legal Mobilization’: Assessing the Influence of Resistance Movements on International Law This article started by arguing that international law-making is not an exclusive arena of state negotiation, but also that (1) transnational non-state actors influence international law through their activism and claims-making. Based on such an overview it was suggested (2) how movements apply a broad typology of legal strategies in order to stimulate legal effects. Through that typology of legal strategies it became clear that not all movements trust legal change is achieved solely from legal arguments and interpretations. Rather, some of the strategies and movements emphasize the decisive role of power relations, and therefore, the need of persistent claims-making, enforced through resistance, alliance-building and social struggles. However, it was furthermore argued that interaction between activism and law is not a simple matter of ‘boomerang patterns’ or ‘norm spirals’ in the form of domestic implementation in ‘compliance’ or ‘linear progression’ according to transnational mobilization of movements. In order to get deeper into the complexity of law-activism interaction and show that the interaction process is more fruitfully understood as going beyond legal arguments as well as beyond actors’ interests or claims-making, one case was discussed in more detail. The case discussed – the Narmada movement and this Indian dam project – indicates that even a vigorous resistance movement with a multilevel mobilization over several decades, that combines direct action by thousands of activists, successful legal processes, mobilization of international regimes, lobbying as well as international solidarity mobilization, might not necessarily be able to get a clear-cut victory with the help of international law. Therefore, even if it is not here proven, it is proposed in line with the work of Rajagopal that (3) law-activism interaction might sometimes better be understood as showing dynamic and dialectic patterns with unexpected and unintended outcomes, without outright ‘victories’ for any certain actor, not even the state and also not for strong resistance movements. If this proposed dynamic and dialectic interaction between law and activism is correct, at least in more difficult circumstances, then movements, especially resistance movements that strive for more fundamental legal change than most other social movements, would benefit from a more complex and knowledgeable

157. Rajagopal, ‘Limits of Law’, supra note 150.

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understanding of the legal system they engage and want to change. Therefore, the role of legal experts – lawyers – in these movements becomes important.

4.1. Can Lawyers Integrate with Resistance Movements? In most of these movements there will be some lawyers that offer their free time to consult the movements on legal issues.158 Furthermore, in some movements individual lawyers take an active part.159 However, it is rare to find international lawyers as integrated part of social movements.160 This is not surprising since conventional law training does not even recognize the existence of economic violence or systemic injustice.161 Even progressive lawyers are often becoming part of the system, as they tend to adopt the state focus inherent in international law, disregarding social movements in general and delegitimizing movement resistance in particular.162 Another, and last, option is that lawyers themselves engage as activists, creating a ‘movement of lawyers’ conducting legal activism. Lawyers, like any other category of citizens, can create a social movement. One such prominent example is the lawyers’ movement in Pakistan 2006-2009 that successfully defended their independent judiciary against the army dictatorship and effectively contributed to a democratically elected government.163 In this case thousands of lawyers were on the streets, agitating and claiming, like any other movement. What about lawyers doing their professional legal work, can that be ‘legal activism’? This is of course a matter of judging between degrees of more or less activism, and the context in which it is done. However, it might still be useful with a descriptive definition of ‘lawyer activism’ as a lawyer that is doing her/his legal work (a) to promote the same goals as social movements in a way that is legally controversial and might lead to personal risks and consequences, or (b) connected to, on behalf of and in continuous discussion with a social movement network. In such a situation, it is not ‘normal’ professional legal work, it is lawyer activism.164 158. One way of increasing this would be to create an international ‘litigation task-force’ of expert lawyers that would travel around the world and assist local people to create legal cases. They could be based in a resource strong international NGO that needs such assistance themselves. If that would materialize, big corporations and governments would be more cautious out of fear of difficult consequences, not only in the West, but also in the Third World. (I thank Robert Tolonen for putting forward this idea). 159. Sarat Austin and Stuart Scheingold (eds.), Cause Lawyers and Social Movements (Stanford University Press, 2006). 160. Rajagopal, International Law from Below, supra note 1, at 20. 161. Ibid., at 197-199. 162. Ibid., at 20-21, 30-36; 45-46. 163. Ahmed Zahid S. and Maria J. Stephan, ‘Fighting for the rule of law: civil resistance and the lawyers’ movement in Pakistan’, 17 Democratization (2010) 492-513. 164. I am not discussing Arthur Schlesinger’s concept from 1947: ‘judicial activism’, in its traditional meaning, i.e. judges that let their rulings on the law become ‘political’. In that sense, activism

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One of the clearest examples of this is when lawyers do civil disobedience. In West-Germany, ‘Judges and Prosecutors for Peace’, a loose-knit group of about 1000 German judges and prosecutors, initiated by Judge Ulf Panzer, supported civil disobedience against nuclear weapons. However, some of them also felt they should act themselves. Judge Panzer made a call, and during the campaign against the Pershing II nuclear weapon base Mutlangen in West-Germany (in the 1980s), 20 judges and other lawyers blockaded the entrance to the base 12 January 1987.165 Some months later, 150 lawyers did the same. Panzer reflects on the astonishing events: ‘One thing is remarkable. After 1096 guilty verdicts in the court of Schwäbisch Gmünd, four days after our blockade came the first seven acquittals.’166 After they got arrested I was myself present and saw one of the fascinating trials when one judge faced another judge: one claiming the legal right, and even the duty to blockade nuclear weapons, and another one who sentenced the ‘criminal’ judge for his ‘crime’. Their understanding of the law and their personal responsibility were fundamentally different. Naturally the trial attracted huge media attention. These anti-nuclear weapon lawyer activists are clear examples of legal activism. It is possible to discuss lawyers’ involvement in social movements according to a continuum. At one extreme there are movements without any contact with lawyers at all, at the other movements that are made up of lawyers as the main activists. In between it is then possible to talk about a weaker version of lawyer activism as the advisor lawyers (as the sympathizing lawyers activists might call and ask for pro-bono help), and somewhat more involved participatory lawyer that in a professional capacity work within the movement (as e.g. the law firms that worked for the civil rights movement with their cases in the US during the 1960s). The most movement-involved lawyer would then be the activist lawyer, the activist who does activism through professional work as lawyer. The last type might be an activist turned lawyer or a lawyer turned activist (or, more correctly, a lawyer that understands lawyer work as activism). In any case it is this last type of lawyer that is mostly challenging the conventional understanding of the professional role of lawyers, that most clearly (re)politicize law work. However, since the law is already (frozen) ‘politics’, it is not a matter of replacing ‘legal’ work with ‘political’ work, it is instead about articulating political perspectives already

by lawyers is seen as more or less negative. For an overview of that concept, see Craig Green, ‘An Intellectual History of Judicial Activism’, 58 Emory Law Journal, 1195-1263. 165. Volker Nick, Volker Scheub and Christof Then, Mutlangen 1983–1987: Die Stationierung der Pershing II und die Kampagne Ziviler Ungehorsam bis zur Abrüstung (Windhueter: Schorndorf, 1993) at 154. 166. See the story by Judge Ulf Panzer, reprinted by those who did inspire him, the US plowshares activists , or, the original text here: (visited 28 May 2011).

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embedded in the law, but in a way that goes against conventional understanding of the role of a professional lawyer. Judge Baltasar Garzón in Spain is a living symbol of such engaged lawyers using the law as a political tool for justice in controversial cases. He got internationally famous as the one who tried to bring the case against Pinochet in 1998, which led to Pinochet having to stay in house-arrest in the UK during the legal procedure.167 Besides that he is also behind cases against the Basque armed group ETA, civil servants in the US administration that promoted torture in the ‘war on terror’, and the Israeli government and army for its attack on Gaza in 2008. 168 Somewhere along the line he took a risk too much, and is now himself in legal trouble. A new Spanish law was introduced that limit the possibilities of investigative judges in the country.169 Now Garzón is a target of legal proceedings, accused of using his position for political purposes.170

5. Concluding Remarks The discussion above has made it possible to rework some tentative concepts of international ‘socio-legal mobilization’171 in relation to legal activism, social movements and international law. International law has emerged as an increasingly important factor in international relations, especially after the Cold War. In this emergent situation, both the Western states and the new post-colonial states play a vital role. Simultaneously, there is a much less noticed influence on international relations, institutional development and international law through the resistance by Third World social movements. 167. Tilly and Tarrow, Contentious Politics, supra, note 3, at 172-174. Although Pinochet could return to Chile after some months without being extradited, the world were shaken, something entirely new had happened. The prospect of other world leaders being arrested like that was daunting. 168. See ‘Spain court mulls US torture case’, on BBC News 29 March 2009, and ‘Push in Spain to Limit Reach of the Courts’, New York Times, 21 Mat 2009 (both sites visited 29 May 2009). 169. That was a limitation, under strong pressure from other countries, among them Israel, to the law on universal jurisdiction. See ‘Spain reins in crusading judges’ on BBC News 25 June 2009 (visited 27 June 2009). Now it is only possible to pursue cases where there are clear connections to Spain and no willingness to conduct legal investigations In the country where the suspected crime was done, or from where the suspected criminals came. 170. BBC News 14 May 2010 (visited 15 May 2010). 171. McCann, Rights at Work, supra note 15; Håkan Gustafsson and Stellan Vinthagen, ‘Rättens rörelser och rörelsernas rätt’ supra note 6; Håkan Gustafsson and Stellan Vinthagen, ‘Law on the Move’, supra note 6.

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In this paper I have, within the backdrop of the conjuncture between these two changes in international relations – increased extra-state regulation and increased extra-national social mobilization – tried to map some of the dynamics, methods, cases and strategies involved, and the role of international law professionals. This has been done with the aim of clarifying some of the mechanisms and processes involved in the interaction between law and movements under the concept socio-legal mobilization. Globalization makes the case for regulation. There are security needs by the state and a need for predictability by corporations (to make investments, contracts and trade possible). Since world capitalism is getting increasingly globalized and technically complex, there will continue to be a need of international regulation. There is a need to find rules for how to deal with world trade, foreign direct investments, financial market-fluctuations, new states emerging, migration, ecological problems, conflicts, etc. The changing role of the nation state occurs because of security threats from ‘below and above’ (subnational forces and various transnational processes) and makes the state interested in international regulations. Furthermore, a growing transnational civil society, with increasing cooperation among social movement organizations, want more (effective implementation of ) regulations based on (other) values and interests such as autonomy, cultural identity, environment, food security, justice, peace, local development, etc. Thus, there are several coinciding forces that demand increased international regulation. It is therefore reasonable to expect a continued development of international law and institutions. On the other hand, there are a lot of circumstances that make such a development difficult. There is still no international government or state, only a complex set of multilateral regimes. Furthermore, the world’s almost 200 states fail notoriously to find consensus on what regulation to foster despite urgent security threats (e.g. in the climate change conferences, COP). Among them are aspiring empires and regional great powers, vast differences of size and interests, major competition for FDIs and scarce resources, major ideological and cultural differences, etc., while only half of these 200 states are somewhat democratic. Further, on the corporate market, there are, besides a general interest of predictability (i.e. regulation), vast differences of interests among different economic sectors. The same goes for the plural transnational civil society with its flora of social movements. They act from very different contexts, with very different ideologies, methods, goals, strategies, and mobilize very different social groups.172 Thus, what kind of regulations will develop is unclear. The actual content and form of international law is a result of specific struggles between various social forces in societies. Within this global struggle between various forces there are the social

172. Vinthagen, ‘Motståndets globalisering’, supra note 38.

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movement organizations that work to create an international law framework in the interests of different citizen groups and national civil societies in the world. If not only alliances between movement activists and lawyers develop, but also activist networks of legal professionals (lawyers as activists) and citizens’ legal activism (activists as lay-lawyers) that act together, there is a potential for increased effectiveness of movement resistance. It seems to be an uncharted terrain and it is not clear what it would lead to. Probably also new problems. It seems reasonable that in such a network, the activists need to be in charge of the political priorities and strategies. Otherwise the risk seems to be overwhelming that the social mobilization becomes ‘juridificated’ by the influence of legal professionals. After all, the law is a means, not an end in itself. One of the latest social movement perspectives – ‘contentious politics’ – claims that the dynamic and interactive relationship between movements and the state is decided by recurrent relational and dynamic mechanisms and processes, rather than certain movement methods, identities or strategies. One of the most important mechanisms is ‘legal mobilization’.173 Rajagopal174 claims, as argued above, that international law and its institutional framework is a result of the (reactions to) resistance by Third World states and movements. Although Rajagopal does not use the concept ‘legal mobilization’ (or the contentious politics framework), his main thesis is in line with such an emphasis on dynamic interaction: the ‘resistance-renewal dialectic’.175 New international law, legal institutions, discourses and procedures are developed as a response to the mass-based resistance of social movements (and sometimes states) in the Third World. The ‘development discourse’ was in itself a response to the problem of mass radicalism, anti-colonialism and nationalism during the Cold War era, in the same way as the later, discourse on ‘poverty reduction’, ‘sustainable development’ and ‘democratization’ is a response to the more fundamental criticism of new social movements in the Third World.176 Such new institutional change constitute attempts of containment and channeling of such resistance, at the same time as such change create new tools and arenas for democratization from below, new spaces for resistance. ‘As social movements resist more, international law and institutions renew and grow more...[and] it also affords

173. McCann, Rights at Work, supra note 15. This is actually one that is, strangely enough, not yet discussed by the founders of contentious politics, see Tilly and Tarrow, Contentious Politics, supra note 3, but some early research has now begun, see Lauren B. Edelman, Gwendolyn Leachman and Doug McAdam, ‘On Law, Organizations, and Social Movements’, 6 Annual Review of Law and Social Science (2010) 653-685. My page numbers refer to a copy of the authors’ manuscript (from June 2010). 174. Rajagopal, International Law from Below, supra note 1. 175. Ibid., at 136, 161. 176. Ibid., at Chap. 5.

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space for resistance’.177 ‘It is this dialectic – of resistance and renovation – that ... explains the political economy of international law through its institutions’.178 My conclusion is that international law is an effect of transnational social struggles that arise from the frustrated attempts by resistance actors to rebel against dominance, and the frustrated attempts of powerful actors to control resistance (for a long-term). International law both affects resistance and is affected by it. Therefore, logically, international law is not produced by the states that sign it – neither in legal texts, nor in legal practice. International law is produced by the struggle between states and other social forces in a plural world.

177. Ibid., at 161. 178. Ibid., at 161.

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The Law against War: The Prohibition on the Use of Force in Contemporary International Law by Olivier Corten. Hart Publishing: Oxford, 2010. 569 pp. ISBN 9781841139425

The Charter of the United Nations and the Jus Contra Bellum Introduction Olivier Corten has written a comprehensive and nuanced analysis of the law governing the resort to force. The book constitutes an important contribution to the ongoing discussion of the legal parameters for legitimate use of force and provides an excellent insight into current French discourse on this subject. The book raises several important issues and some of these will be explored in this review. The Law against War is a translation and updated version of a book published in 2008 in French1 and forms part of the series ‘French Studies in International Law’, which aims to bring to the attention of the English reader the most important works in international law by French-speaking scholars. Corten’s overarching thesis is that the Charter of the United Nations (‘Charter’) has created a ‘genuine jus contra bellum’ and that the Charter should be clearly distinguished from the jus ad bellum of the pre-Charter period. Corten’s second fundamental thesis is that ‘while marked changes [in state practice on the use of force] have been observed’ the Charter’s comprehensive prohibition of force remains intact (at 2). Hence there has not been, de jure, any significant change of the law. The first thing that strikes me is that Article 2(4) of the Charter receives such extensive attention. It has become too widespread a practice to focus solely on the justifications for using force while neglecting to address the core of the matter, i.e. the principle of non-use of force. Corten’s emphasis on Article 2(4) helps to shift the center of gravity to the rule rather than to the (continously expanding) exception. Corten is a strong supporter of a ‘monolithic’ theory, i.e. the idea of the comprehensiveness of the Charter’s regime, entailing a wide proscription of force and mainly two exceptions to this prohibition, namely ‘enforcement action’ authorized by the Security Council and self-defence. Corten states that Article 2(4)’s purpose was to radically alter the regime that existed before 1945 ‘by bringing about a stricter prohibition of the use of force’ (at 15). This may be obvious and few would contest this today. However, Corten neglects to seriously engage with the historical source material to prove his thesis. It is a fact that the preparatory works of the Charter have very little to say about Article 2(4) or, for that matter, Article 51. If anything is certain it is that the prohibition of force and its technical regulation were insufficiently addressed in those proceedings. The chief focus was the creation of a system of ‘collective security’. In this system the proscription of force was not the main focus. Crucial remnants of pre-Charter law were also left intact in the Charter. The concept of ‘war of sanction’ which forms the core of the Charter and is 1.

Olivier Corten, Le droit contre la guerre: L’interdiction du recours à la force en droit international contemporain (Pedone: Paris, 2008).

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encoded in Chapter VII’s architecture is an important example. There is accordingly not conclusive material support for the position that a clear distinction can be made between the Charter and earlier treaties on the outlawry of war. More importantly, shortly after the adoption of the Charter, states made quite flexible interpretations of its normative framework, particularly in relation to Articles 2(4) and 51, as demonstrated by the severaldecade-long discussion of ‘aggression’. Regrettably, state practice following the adoption of the Charter also speaks against a progression towards a true jus contra bellum.

Prohibition of the Use or Threat of Force A closer look reveals that Corten departs from his professed rigid reading of the Charter. In fact, his construction of the scope of Article 2(4) turns out to be quite dynamic. In particular, Corten makes a sensible distinction between ‘police measures’ (or ‘police operations’) and use of force within the meaning of Article 2(4). By doing this, he reserves a certain domain, small-scale use of force, which falls outside of Article 2(4). Corten even speaks of ‘separate bodies of rules’ that apply to the use of force (at 59): one relates to Article 2(4) and governs inter-state force of a certain scale, whereas the other concerns ‘police measures’ and is part of customary law. Corten also demonstrates, by an extensive examination of state practice and case law, that states rarely invoke Article 2(4) in the context of small-scale uses of force. The line between the two categories of force is set at ‘coercive acts of a limited scope‘ (at 66). This entails a criterion of ‘gravity’ (at 67). Corten also elaborates upon an additional criterion, a ‘subjective’ element or ‘intention’ (ibid.). Central to this criterion is whether the action taken aims to ‘compel another state to do or refrain from doing something’ (ibid.). This is a pragmatic construction since it enables states to conduct small-scale ‘extraterritorial enforcement measures’ against, for example, ‘terrorists’ (at 124). The criterion cannot, however, be accepted without qualification. For example, it would be questionable to regard as illegal an on-the-spot military response to a frontier incident by another state. It is also potentially regressive that Article 2(4)’s application should be determined by such a subjective element as ‘intention’. This is because states would be able to argue that their particular use of force has a legitimate purpose and thus lacks malicious intention that will bring Article 2(4) into play. An advantage of a separate category of countermeasures (‘police action’) is that it restricts the application of the concept of self-defence to more serious attacks. Somewhat controversially, Corten seems to regard the so-called ‘targeted killings’ as falling outside of Article 2(4) (at 85). He vaguely asserts that the legality of such operations will ‘depend on the circumstances of each case’ (ibid.). Thus, despite his professed allegiance to a ‘positivist’ method, Corten, like many others, ends up advocating for context as a central factor in the legal analysis. Ironically, this approach is very similar to many of the policy oriented theories that he so often criticizes. The normative ambiguity inherent in Articles 2(4) and 51 does, however, often invite to the path of contextuality. A further critique of Corten’s theory of a ‘reserved domain’ for small-scale use of force is that it does not mesh with the ‘plain’ meaning of Article 2(4). It can also be said that if the comprehensive prohibition in Article 2(4) has the status of jus cogens it cannot be restricted outside of the bounds of the legitimate exceptions, notably self-defence. But

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on careful consideration the concept of jus cogens can co-exist with a de minimis rule (cf. at 65). If one truly accepts the concept of jus cogens, its application cannot be selective. If at the adoption of the Charter the outlawry of war of aggression was jus cogens then it follows that – in the absence of state pronouncements to the contrary – the established justifications at that time, such as the concept of ‘war of defence’ and various ‘measures short of war’ (including the peacetime remedies of self-defence and armed reprisals), also received this status. Furthermore, in no major treaty, e.g. the Covenant of the League of Nations, the Briand-Kellogg Pact or even the Charter, have states explicitly acknowledged the abolition of traditional sovereign rights. Only in respect of the classic ‘right of war’ may we conclude that there has been a material legal change. Although Corten, as a matter of principle, regards Article 2(4) as ‘comprehensive’, he concludes by stressing the ‘very limited character of the legal rule [i.e. Article 2(4)] in a domain so closely tied to sovereignty and to power as the decision to wage war’ (at 552). Moreover, he also admits that states in this area often base their decisions on ‘factors other than law’ (at 553). Unfortunately, this is the only thing that has been static in the operation of the international law on the use of force. The chapter on Article 2(4) also contains an extensive analysis of the notion of ‘threat of force’. Here Corten argues that only a ‘specific kind’ of threat is prohibited by Article 2(4) (at 95). According to him, there must be a clear threat by one state against another. Mere general and vague threats will not suffice (at 94). Interestingly, and controversially, Corten seems to argue that, in the area of threats of force, intention (‘intent’), a subjective element, may determine the applicability of Article 2(4). But Corten becomes less nuanced when he takes issue with Romana Sadurska’s thesis that there is an ‘asymmetry’ between the prohibition of threat of force and the use of force, the former being prohibited in a more flexible manner. Corten advocates a stricter view. In his opinion there is ‘no trace in the position of states’ for a greater tolerance for threats (at 116). The problem is, however, that this conclusion is argued by reference to mainly two cases: NATO’s threats in the Yugoslav crisis before the ‘humanitarian intervention’ in Kosovo and the US threats against Iraq preceding the intervention in 2003. Surely such a categorical conclusion cannot be made solely by reference to these two cases. Obviously threats occur constantly, even those of a ‘specific kind’. It is hard to see that, in practice, there is not a greater flexibility in this area. Corten also examines the question whether, and to what extent, the jus ad bellum applies in the context of non-state actors. His view is that the prohibition of force ‘has not clearly’ been extended to non-state actors (at 127). In relation to the 9/11 response, which obviously targeted a non-state actor, Corten argues that it is ‘premature’ to conclude that an extension of the rules has occurred (at 161). He makes an interesting and, to me at least, very logical argument in this respect in relation to self-defence under Article 51. Since Article 51 is an exception to Article 2(4), and the latter is explicitly restricted to ‘international relations’, it follows that Article 51 ‘must a priori be understood to refer to the resort to force in “international relations”’ (at 162). Corten regards as ‘highly formalistic’ the construction that since Article 51 does not explicitly state that self-defence applies to attacks by a state, it logically must extend to non-state attacks (at 164). But here Corten completely bypasses the customary law dimension. Arguably a nonstate jus ad bellum is emerging in customary law. Some would even go so far as to state

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that the jus ad bellum applies de lege lata to non-state actors. Indeed, self-defence against ‘non-state actors’ has been recognized in customary law since times immemorial. The still relevant Caroline case is a clear illustration. A further problem in Corten’s analysis is the absence of a discussion of ‘sovereignty’ in the context of non-state attacks. In the Corfu Channel case, the International Court of Justice (ICJ) clearly stated a state’s obligation ‘not to allow knowingly its territory to be used for acts contrary to the rights of other states’.2 From this it can be inferred that sovereignty and its corollary, ‘territorial integrity’, are reciprocal and conditional. Hence, these rights cannot – in cases where reciprocal conditions are consciously neglected – act as a ‘shield’ against legitimate military operations by another state. This means that – contrary to a persistent dominating view – ‘self-defence’ cannot be restricted only to ‘armed attacks by states’ (at 164). Corten also indirectly admits this by saying that ‘[i]t is hard to imagine … that states would voluntarily have rendered themselves powerless by limiting the notion of self-defence to the hypothesis of purely inter-state uses of force’ (at 168). There is nothing inconsistent in holding that Article 51, despite being an exception to Article 2(4), allows the use of force against terrorists in another state, despite the prohibition in Article 2(4). Corten argues that if, for example, Article 51 applies to terrorists then logically the terrorists, ‘while being bound by the rule, could also rely on it’ (at 173). The outcome of this, namely that the rule on self-defence somehow ‘binds’ terrorists, ‘is that it promotes them from the status of common criminals to being subjects of international law’ (ibid.). This is the chief reason for Corten’s opposition against an extension. But why is an ‘extension’ of the rules negative? Is not the problem of asymmetric warfare the lack of normative rules? True, most ‘terrorists’ would not abide by the rules in practice. Their potentially ‘elevated’ status might – especially for more ‘serious’ groups with a future agenda, whose success will depend on support from the established states – make them more susceptible to normative restraints. In this context, the 9/11 terrorist attacks receive much attention. Corten’s main question is whether the 9/11 response and the related Security Council (‘Council’) resolutions have ‘modified’ the legal rules. It can be asked whether ‘modification’ is the central issue. Several states that conduct the so-called ‘war on terrorism’, i.e. military operations against non-state actors, have done this for years. They have always argued that their action is compatible with the law. Again we end up in the concept of sovereignty and the prerogative of unilateral interpretation. Corten’s also touches upon another related issue. Council Resolutions 1368 and 1373 (2001) are often used, or rather abused, as a justification for the ‘war on terror’. As Corten rightly states, ‘it can be seriously questioned’ whether the Council is competent to redefine self-defence by ‘some sort of authorized interpretation of Article 51’ (at 182). The Council has extensive powers under the Charter, including the authority to adopt under Chapter VII resolutions that legally binds the member states. It would, however, be highly problematic, given the Charter’s political character, if it were to be seen as having ‘legislative’ and ‘judicial’ powers. As a general rule, Council resolutions merely operate in casu. Hence, they do not have general application. In theory, however, Council resolutions may serve as focal points for emerging customary law. 2.

The Corfu Channel Case (Merits), [1949] I.C.J Reports p. 22.

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Self-defence Given that Corten adheres to a monolithic theory on the use of force, it is somewhat strange that his treatment of self-defence – the central, if not exclusive, justification for unilateral force – constitutes only a small part of the study. The chapter on self-defence is, however, lucid and provides many new perspectives. Unlike much of the current scholarship in this area, which regularly treats ‘self-defence’ as an expansive security concept similar to classic conceptualizations of ‘necessity’ and ‘intervention’, Corten manages to subsume the concept of self-defence within the Charter’s ‘law of peace’. Self-defence is depicted as an ‘exceptional right’, an anomaly, situated within a complex system for maintaining peace (at 401). Corten also puts strong emphasis on the criterion of necessity (an often disregarded criterion in our constant focus on proportionality). Necessity is regarded as the ‘very essence of self-defence’ (at 484). More importantly, Corten inquires into the ‘essence’ of true self-defence. This is seldom done in current discourse, the legitimacy of ‘self-defence’ often being taken, rather uncritically, for granted. This discussion is one of the most persuasive in the book. Corten conceptualizes self-defence as a ‘genuinely defensive measure’, a measure that is ‘designed to put an end to an armed attack’ (ibid.). He also speaks of a criterion of ‘exclusive purpose’ (ibid.) and thus stresses the second element in the inherently vague concept of self-defence, namely that of defence. In contemporary discourse this element is far too often overlooked, or even bypassed completely, the criterion of ‘armed attack’ being the central focus of the legal assessment. The current fixation on the criterion of ‘armed attack’ is obviously due to the Charter’s lack of explicit guidance on the concept of self-defence, ‘armed attack’ being the only explicit legal reference point. Corten carefully pinpoints the essential characteristics of self-defence as being a temporally and spatially restricted action. Self-defence is neither exclusively past-oriented nor exclusively future oriented. Rather, its purpose is both to stem the effects of a present and past situation and by this ‘preventing the occurrence of a future situation which would be the pursuit of the attack’ (at 485). This understanding of self-defence creates a clearly defined ‘theatre’ of self-defence, an area that is restricted in time and space. Such a construction of self-defence helps to maintain self-defence within the Charter’s ‘law of peace’. This is also where self-defence makes most sense, i.e. as a ‘measure short of war’. The emphasis on the spatial and temporal elements of self-defence also makes more difficult ‘creative’ constructions of self-defence that tend to expand the domain of ‘selfdefence’ into the domains of aggression and war. State practice is, however, inconclusive in this area. In many armed conflicts ‘self-defence’ and ‘war’ are used interchangably as semantic constructs for justifying both ‘acts of war’ as well as ‘measures short of war’. The point, however, is that self-defence has characteristics that make it more relevant to the ‘law of peace’. The chapter on self-defence also contains a discussion of reprisals. Corten seems to argue that armed reprisals are incompatible with the law (at 247). At the same time he admits that this position is difficult to reconcile with state practice. He states that often states ‘prefer to invoke self-defence, interpreting its conditions very loosely, rather than referring to the theory of armed reprisals, which it is known no one any longer accepts’ (at 224). Here Corten touches upon a crucial problem in international law. The problem of

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reprisals has become similar to the problem of war: it is left unarticulated (similar to the concept of war), for strategic reasons, due to the stigma attached to the concept of reprisals. The problem is that this leads to increased indeterminacy regarding the scope of selfdefence. The same is true for self-defence and war. How far can the concept of self-defence be stretched? Why not call something by its real name? Corten’s cautious recognition of concepts outside of self-defence, e.g. ‘police action’, is progress in this respect. A plurality of concepts creates a more functional legal structure and enables different concepts to be applicable depending on the specificities of the situation. Euphemisms are sometimes appropriate but often they only lead to a distorted picture. They also help to increase the legitimacy of certain conduct (‘self-defence’ instead of aggressive war, ‘self-defence’ or ‘countermeasures’ instead of reprisals, and ‘armed attack’ instead of aggression). In law – an area which requires precision that is sufficient to provide guidance – the frequent use of semantically ‘neutral’ or even ‘positive’ notions (or at least notions that has a positive connotation such as, e.g., ‘self-defence’) are detrimental to the respect for, and the rule of, the law. Arguably, the time has come for a conceptual differentiation in the area of the use of force. The viability of a discourse based exclusively on ‘self-defence’ is precarious to say the least. Paradoxically, Corten’s strong emphasis on the defence (‘necessity’) element of self-defence makes necessary a reconsideration of the place of war and other measures short of war (e.g. reprisals) in the structure of international law. Hopefully, Corten (and others) will start an inquiry into concepts outside of self-defence. In his discussion of self-defence, Corten also focuses much, perhaps too much, on the enduring concept of ‘indirect aggression’. In particular, this concept is analyzed in relation to ‘non-state actors’. Here there is a certain overlap (and some repetition) between Chapters 2.3 and 7. It would have been wise to integrate these two discussions since they are strongly related. But the discussion of ‘indirect aggression’ has some substantive weaknesses. In particular, Corten accords too much weight to Article 3(g) of the General Assembly’s 1974 Definition of Aggression.3 He even seems to regard this Article as a formal legal rule under the law of self-defence (e.g. at 470). At one point Corten calls Article 3(g) the ‘reference instrument’ regarding issues of attribution under Article 51 (at 468). Obviously, the Definition of Aggression has a legal significance but to equate it with formal legal rules may be stretching it too far. After all, it is merely a resolution from a political organ. As Corten himself admits, the Definition primarily concerns Article 39 of the Charter. True, the discussions of aggression in the various special committees – which encompassed decades of endless debates and reporting – did, sometimes extensively, deal with the concept of self-defence. There is, however, little indication, apart from the case law of the ICJ, that the Definition of Aggression should be regarded as determinative for establishing different aspects of the law of self-defence. It is also evident that states, in their practice, refer to the Definition of Aggression infrequently. Moreover, very few states today make a distinction between ‘direct’ and ‘indirect’ aggression. In any event, no state, being exposed to attack, would accept the view that ‘indirect’ aggression restricts their ambit for using force. In his discussion of self-defence, Corten cautions against the current dominant discourse on preventive self-defence that has tended to ‘blur the boundaries between the 3.

GA Res. 3314 (XXIX).

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ideas of imminent threats, latent threats or more generally of a state of peace and a state of war’ (at 413). These developments, particularly manifested by the ‘war on terror’ and the emergence of a politically infused discourse on ‘national security law’, are serious and present a real challenge to the contemporary prohibition of force. Corten, however, fails to draw the natural conclusion from these events. Similarly to many other scholars, he does not recognize that issues related to this problem are bound up with the concept of war. The absence of a coherent articulation of the concept of war has given ‘self-defence’ – an even more abusive concept than the traditional concept of war – a ‘free reign’. Hence the expansion of self-defence and the expanding discourse on ‘prevention’. Admittedly, the concept of war does not fit easily within Corten’s conceptualization of a jus contra bellum, the latter’s thrust being the elimination of war. But the failure (by states as well as scholars) to address the issue of war and the one-sided focus on ‘self-defence’ (and its twin, ‘aggression’) have resulted in a legal indeterminacy that is difficult to overcome. Corten states something profound, namely that the ‘essential issue [concerning the use of force] often remains that of identifying the aggressor state and not taking account of a general criteria of necessity or proportionality’ (at 472). This is true and at a deeper level this state of affairs is the consequence of the Charter’s (and UN members’) fixation on the inherently vague concepts of aggression and self-defence. This is the central problem which disrupts the whole legal scheme, since seldom will it be possible to accurately and authoritatively determine the ‘aggressor’. Hence, in practice, issues of culpability will exist only in theory.

State Responsibility Corten also addresses the issue of state responsibility and its connection to the law on the use of force. The Chapter on this issue relies heavily, for obvious reasons, on the work of the ILC. There is a problem with this approach. States have been very reluctant to codify the ‘law on state responsibility’. This is expected since most states do not want to bind themselves to formal rules regulating their responsibility. This crucial point is often missed in discussions of state responsibility. Moreover, since the ILC is merely a committee and not a legislative organ, its work constitutes, at best, a secondary source of law. Corten accords too much weight to the ILC’s findings. This is obvious in the chapter on state responsibility, but also in other parts of the book, as sentences such as ‘[e]xamination of the works of the ILC confirms this inadmissibility’ appear frequently throughout. Is it really true that if the ILC says something conclusive, then this settles the issue? Hardly. Despite being one of the most qualified institutions when it comes to international law, the ILC’s position merely forms part of the wider scholarly discourse. The ILC does not have juridical power to decide what the law is. In the end what will matter is how states react to the ILC’s findings. A decision not to formulate a treaty on a specific area, such as in the case of state responsibility, is a strong indicator that states are not ready to definitely state the law or bind themselves by a specific regime. Corten also too easily infers from the ILC’s draft treaty that certain state remedies have been abolished. If we look at the whole chain of the ILC’s discourse on state responsibility, it seems fairly clear that several sovereign rights were seen as still being legally relevant. For example, Ago

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argued for a separate concept of necessity in the context of armed responses (i.e. reprisals) against non-state actors.4 It is, however, clear that the ILC’s Draft Articles on State Responsibility are widely perceived as reflecting customary law.

Other Exceptions to the Prohibition of the Use of Force The book contains a thorough discussion of the Security Council’s authorization regime. This is a very detailed analysis with ample coverage of institutional and state practice. Several issues are explored, including the controversial issue of the so-called ‘presumed authorization’. Corten convincingly shows the flaws of arguments regarding ‘implicit approval’ in the context of unilateral action (at 384). A problem with the analysis is Corten’s argument that certain issues ‘must be understood politically’ rather than in strictly legal terms (e.g. at 392). This distinction is artificial, particularly in relation to the Council and Chapter VII, which is controlled more by politics than law. This is because the whole idea of Chapter VII is political: it is difficult to disentangle the legal and political in relation to ‘collective security’. The Council’s inconsistent practice complicates the situation further. Corten uses the term ‘precedent’ (or ‘precedence’) in a rather loose way. He often states that ‘this precedence shows’, and this seems to settle the issues (e.g. at 28), but the notion of ‘precedent’, a technical legal term of art, has a more restrictive meaning and its use in the context of Council resolutions is inaccurate. The books also includes a discussion of the contested concept of ‘a right of humanitarian intervention’ and its clone, ‘responsibility to protect’. Unsurprisingly, Corten concludes that the ‘opinio juris’ of states does not support such a right (at 521).

Methodology As already mentioned, Corten rejects the view that post-Charter state practice has modified or radically changed the rules on the use of force. This naturally leads us into a discussion of Corten’s methodological approach. The book contains a quite comprehensive chapter on ‘method’. Corten sets out to pursue a ‘modern’ and ‘positivist’ analysis of the law. In this respect, he makes a (rather ambiguous) reference to the ‘positivist method’. Corten states that his approach seeks to avoid the extremes of ‘exaggerated formalism’ (i.e. that changes can only occur through formal treaty regulation) and ‘unlimited flexibility’ in rule construction (as characterized by the ‘policy oriented school’) (at 27). Central to Corten’s assessment of the law is the ‘official justifications’ of states (at 28). Accordingly great, one could say even decisive, weight is given to the so-called opinio juris. Curiously, however, the central focus of traditional positivism – the practice of states – is not the center of attention in Corten’s analysis. Admittedly, state practice receives ample coverage. However, many conclusions are reached by reference to legal doctrine. This is rather surprising given Corten’s professed allegiance to a ‘positivist’ theory. To a true positivist, legal doctrine falls outside of the formal sources of international law (and amounts, at best, to a secondary source). The extensive focus throughout the book on 4.

Roberto Ago, ‘Addendum to the Eight Report on State Responsibility’, Yearbook of the International Law Commission (1980), vol. II (pt. 1), at 15.

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legal doctrine, particularly by French scholars, gives a somewhat incomplete and sometimes distorted picture of the law. At the same time it has the merit of presenting French scholarly discourse in this area to the English reader. Corten makes a sharp distinction between two different approaches in relation to customary law (and additionally the lex scripta). Under the first approach, which Corten calls the ‘extensive approach’, rule construction is ‘most flexible’ (at 6). This approach also interprets custom flexibly and accords precedence to state practice and the ‘dominant role of major states’ (at 6). Under the other approach, the ‘restrictive approach’, legal rules are interpreted more strictly. Here opinio juris is given precedence and the approach is said to be built on the ‘equality between states’ (ibid.). The division is arbitrary. For example, it is not clear why opinio juris should be related to strict legal interpretation. In practice, a system built on opinio juris will often be more ambiguous than, for example, a system based on state practice. This is because obtaining an opinio juris almost always requires a strong normative ambiguity in the final text. How could states otherwise agree? The General Assembly’s declaration on ‘friendly relations’5 and the above-mentioned Definition of Aggression are clear examples. No one would contest that they are ambiguous texts. This is the price one pays when trying to achieve consensus. Corten also distinguishes between an ‘American’ (i.e. US) and an ‘European’ perspective on international law, though he states that reality is ‘more complex and nuanced’ (at 5). It also seems clear that the main purpose of this dichotomy is to provoke debate on the principal issue, namely the role of customary law in international law. A possible critique of the dichotomy would of course suggest that the US discourse is in fact more pluralist: too often the ‘European’ discourse is stuck in idealism and progressive narratives of the Charter as a ‘paradigm’ and the ‘new world order’. It is also easier to adhere to utopian constructions when you do not have to implement the rules. At the same time, Corten’s distinction between a more formalist and a more dynamic perspective on international law pinpoints the problems related to the increasing ‘politication’ of the scholarly discourse. The ongoing legitimacy-contra-legality debate clearly illustrates the problem. This debate, however, covers both the European and the American discourses. It is also important to recall that the ‘Kosovo Report’, which famously described NATO’s intervention in Kosovo as ‘illegal but legitimate’, is, chiefly, a European creation.6 A weakness in the chapter on method is that Corten fails to address the complex issues of parallel applicability and non-hierarchy. In the Nicaragua case, the ICJ argued for the ‘non-hierarchy’ theory.7 This is a theory that in effect equates the lex scripta and customary law in terms of their (simultaneous) validity and, more importantly, interpretative power. In fact, Article 51 gives explicit recognition of this by stressing the ‘inherent’, i.e. customary, right of self-defence. All this means that both sources need to be consulted in order to accurately determine the law. This also necessarily means that ‘formalism’ will be difficult to achieve in international law. Rather, the horizontal structure 5. 6. 7.

GA Res. 2625 (XXV) (1970). Independent International Commission on Kosovo, Kosovo Report: Conflict, International Response, Lessons Learned (Oxford University Press, 2000), at 164. Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. US), ICJ Reports (1986) 14, paras 175 and 177.

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of international law and the theory of non-hierarchy of norms constantly press towards ‘dynamic’ construction. A further problem with Corten’s analysis is the absence of practical considerations. Corten states that the extensive approach ‘tends to move beyond the formalism of treaty texts’ (at 7). This is often true and in those cases there is, in fact, a clear element of legal manipulation. This is obviously the case when clear and explicit criteria, e.g. the criterion of ‘armed attack’, are disregarded such as in the case of arguments for so-called ‘preventive self-defence’. However, in practice, formalism will not take us very far in this area. This is because we do not have any ‘clear’ treaty rules. Apart from stating what is obvious, i.e. the prohibition of force and the criterion of armed attack, Articles 2(4) and 51 provide little guidance. This means that, to a large extent, normative ambiguity permeates the two rules. Thus, in practice, other factors, e.g. interpretative techniques, extra-legal factors etc., will often be more determinative than the limited guidance found in the lex scripta. There is also a purpose in retaining ambiguity: it enables states to have a certain ‘margin of appreciation’ when using force. Most likely this was a conscious choice by states. After all, the dominant powers that created the Charter have often – particularly if we look at their practice – indicated a desire to retain normative ambiguity in this area. A merit of Corten’s analysis of the application of the two approaches is that it makes clear the incoherence and selectivity of scholarly (and by extension states) approaches. This is illustrated by adopting a flexible approach to the law on the use of force while, at the same time, in the context of international criminal law a ‘more rigorous and classical methodology’ is used (at 27). As is evident from state practice, many states act in this manipulative way. As mentioned, Corten’s most central source for establishing the law is the opinio juris. He frequently refers to the position of the ‘international community as a whole’ and the ‘majority opinion’. Here I find a problem with Corten’s analysis. Why for example should opinio juris always be the central parameter for determining the interpretation of Article 51 or for that matter Article 2(4)? Is not the lex scripta the main factor? At least there must be a balance between the lex scripta and customary law. The preference accorded to speech acts over actual state practice is difficult to justify. At the same time, it must be stressed that Corten’s extensive focus on opinio juris through empirical studies is, in principle, sound since it helps to distil tendencies in states’ positions. A problem, however, is that Corten, in his sometimes uncritical reliance on opinio juris, fails to see the crucial difference between political rhetoric and the actual state of the law (as manifested in state practice). Although it is not explicitly stated, it seems that Corten’s choice (i.e. giving a privileged status to opinio juris) is influenced by the theories of ‘constitutionalization’ and ‘community values’ that currently dominate international legal discourse. This is part of a progressive narrative that international law has moved beyond sovereignty. It is open to doubt whether this stage has been reached. The current system of international law is still bound up with the principle of sovereignty. It can even be said that sovereignty is still the ‘heart’ of international law. The various elaborate constructions of the Charter as a ‘constitution’ have not changed this state of affairs. In fact, the Charter even cements the principle of sovereignty further. If we take sovereignty and in particular the Charter’s concept of ‘sovereign equality’ seriously then we cannot disregards the unilateral bent inherent in the concept of sovereignty. State consent is the chief rationale for a system

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based on sovereign equality. The Charter perpetuates this structure. This means that, as a matter of principle, the ‘majority opinion’ cannot ‘neutralize’ certain unilateral interpretation and thereby reject them as ‘contrary to international law’. In the current international society it is fashionable to criticize ‘hegemony’ and especially ‘Western’ hegemony. But hegemony comes in many different forms. Corten constantly emphasizes the ‘majority position’. This ‘majority position’ is often derived from particular General Assembly resolutions, a ‘source’ that Corten relies heavily on in his argumentation. It may be asked whether a certain pattern in state practice is not more decisive than, for example, the production of repetitive resolutions at the General Assembly. The whole idea of the principle of sovereign equality, arguably a principle of jus cogens, is to unable the ‘tyranny of the majority’ to tramp legitimate constructions of established rules. This also follows from the doctrine of ‘auto-interpretation’ which is a central component of sovereignty. Hence, legal interpretations that are in line with a treaty text – or, for that matter, a clear pattern in state practice – cannot be quashed merely because there is an opinio juris suggesting a different interpretation. No state would accept that the majority can bind it in certain ways, particularly if it believes its legal interpretation to be accurate. The contrary would entail a radical transfiguration of the principle of sovereignty. Of course, such a radical change may happen in the future. There is, however, little indication that this has occurred. Regrettably, this part of international law is still chiefly constructed in a unilateral or bilateral frame. This does not, however, mean that the ‘majority opinion’ lacks importance. On the contrary, the majority opinion is central, especially in the customary law context. The majority view must, however, manifest itself in practice if it is to be taken seriously. As Schwebel once said, ‘there is a profound difference between what States preach and what they practice in respect of the use of force in international relations’.8 The two components thus constitute an integral whole. In principle, neither may be given precedence. At closer reading it becomes evident that Corten does not follow his explicitly stated methodology stringently. This shows that methodological rigidness is difficult to achieve, especially in such an area as the use of force where the ‘political’ and the ‘legal’ are strongly intertwined. For example, Corten frequently refers to ‘context’ in his legal analysis. A recurring wording is ‘under certain circumstances’, the implication being that there is indeed a certain ‘flexibility’ within the law (e.g. at 86). Interestingly, extra-legal factors also sometimes constitute a central part of his analysis. For example, he evaluates legal constructions in terms of their ‘risk’. This is done, e.g., in relation to the possible extension of the jus contra bellum to non-state actors (at 172). Curiously, Corten strongly departs from his positivist approach in the context of the ‘fight against terrorism’ where instead ‘effectiveness’ and other parameters are given precedence (at 170). Such an approach is not far from the ‘policy oriented perspective’. The 9/11 attacks and the ensuing ‘war on terror’ receive extensive attention in Corten’s analysis. In relation to those events Corten states that the ‘extremely emotional context’ of 9/11 makes it difficult to ascertain a ‘true opinio juris’ (at 490). One may question the

8.

Stephen M. Schwebel, ‘Aggression, Intervention and Self-defence in Modern International Law’, 136 Recueil des Cours de l’Académie de Droit Internationale (1972–II) 411–497, at 488.

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validity of this argument. Are not all conflicts ‘emotional’ in some sense and does opinio juris depend on states having the right ‘emotion’? In some part of the text, e.g. Chapter 2.3.II, value judgments abound. Words such as ‘absurd’, ‘unreasonable’ etc. are used constantly. Corten’s argumentation is also, sometimes, related to the ‘results’ of particular constructions. He seems to argue that if there is a ‘manifestly absurd and unreasonable result’ then a certain interpretation should be abandoned (at 173). This stance is taken in his opposition against terrorists gaining subject status and the victims state’s right to a response despite the obligation to respect the ‘host’ state’s territorial integrity (at 172–3). This illustrates that law is, even for a ‘positivist’, a normative venture. In fact, in Chapter 2.3.II Corten becomes very normative, especially in the context of the ‘war on terror’. All this demonstrates that a formalist adherence to a predetermined method is difficult to maintain in practice.

Concluding Remarks Corten should be commended for writing such a thorough and thought-provoking book. It goes without saying that this short review cannot do justice to his comprehensive treatise. The book will most certainly be one of the more important monographs on the topic and its translation into English also makes it accessible to the non-French reader. The book presents a distinctly ‘European’, or at least French, perspective on international law. It has the merit to of arguing for an international ‘world order’ where the use of force and unrestricted sovereignty are no longer the main pillars of international relations. The practice of states will, however, determine whether we have, truly, reached the era of the jus contra bellum that Corten argues for. Daniel Janse Uppsala University

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The Advancement of International Law by Charles Leben. Hart Publishing: Oxford, 2010. 333 pp. ISBN 978-1-84113-278-5 It is an oft-heard lament that in today’s international legal academia, the role of the French has become minimal. With a few notable exceptions (Alain Pellet, Hélène Ruiz-Fabri), French international law scholars write mainly in French, for a francophone audience and, often enough, basing themselves predominantly on French sources. This is, by any standard, an undesirable state of affairs – not only can the French learn something from others, but the reverse holds true as well: there is something about French legal scholarship that is difficult to emulate for those in other traditions, and hence, a certain familiarity with French thinking and reasoning can also enrich the scholarship of the non-French. With this in mind, Emmanuelle Jouannet, renowned international law historian at the Sorbonne, is providing the discipline with a valuable service. She has been the driving force behind securing translations of some important English-language scholarship into French (works by Martti Koskenniemi and Nathaniel Berman, among others1), and a few years ago also initiated the publication of French Studies in International Law, an ambitious attempt to make French scholarship available in English. Thus far, this has resulted in the publication of translations of work by Mireille Delmas-Marty, Serge Sur, Olivier Corten (Belgian but francophone),2 and the fine book under review by Charles Leben, professor of international law at Paris II (Panthéon-Assas). Leben’s The Advancement of International Law consists of 11 papers, mostly published earlier in French3 and providing a distinctly French methodological gloss on three broad issues: investment law (in particular the notion of state contracts), the relationship between international and domestic law, and the curious animal that is the European Union. As far as theory goes, Leben is a Kelsenian, and a fairly faithful one. To him, legal orders find themselves on a continuum between highly centralized and highly decentralized, the result being that dualism – insisting as it does on a radical separation between legal orders – is far from convincing. Moreover, dualism reduces ad absurdum to the position that every state divides into two states: an internal state and an external state, which would result, even more ad absurdum, in the proposition that a state could make deals with itself. Perhaps the most illuminating essays are those on investment law. In particular, Leben 1. 2.

3.

See Martti Koskenniemi, La politique du droit international (Pedone, 2007); Nathaniel Berman, Passions et ambivalences: le colonialisme, le nationalisme et le droit international (Pedone, 2008); David Kennedy, Nouvelles approches du droit international (Pedone, 2009). Mireille Delmas-Marty, Ordering Pluralism: A Conceptual Framework for Understanding the Transnational Legal World (Hart, 2009); Serge Sur, International Law, Power, Security and Justice: Essays on International Law and Relations (Hart, 2010); Olivier Corten, The Law Against War: The Prohibition on the Use of Force in Contemporary International Law (Hart, 2010). This comes with three exceptions. ‘Is There a European Approach to Human Rights’ was originally published in both languages in Philip Alston (ed.), The EU and Human Rights (Oxford: Oxford University Press, 1999) 69–97 and Philip Alston (ed.), L’Union Européenne et les Droits de l’Homme (Brussels: Bruylant, 2001) 71–98. The paper from which the book derives its title (‘Hans Kelsen and the Advancement of International Law’) was first published in English in 8 European Journal of International Law (1998) 287–305, while the subtle paper on the subtle distinction between federations and federal states (‘A Federation of Nation States or a Federal State?’) was first published in English in what seems to be a set of policy working paper of the European University Institute.

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advances the thesis that contracts concluded between states and investors form part and parcel of international law. He approaches the matter not through a classic sources approach (are they treaties or not?) or a classic subjects approach (can companies be seen as subjects of international law?), but rather on the basis of a theory of legal acts: investment contracts involving a state and a company must be seen as international legal acts. This too is inspired by a monist background: since the state cannot be divided, its contracts with foreign investors cannot be seen as acts of the ‘internal’ version of the state (as earlier theorists proposed), and thus, if only by default, must be viewed as international legal acts. While this debate may at first sight have a somewhat esoteric character, it is by no means devoid of practical consequences. Thus, situating an investment contract within international law might activate the responsibility of the state under international law, and might facilitate the commencement of international legal proceedings against the state. Indeed, it should come as no surprise that precisely on the basis of the empirical reality of the existence of many state contracts, Leben holds that international law has come to recognize companies as subjects of international law, albeit with limited legal personality. One of the great merits of Leben’s book is that it makes visible the wealth of scholarship available in French but which often remains undisclosed. He cites gregariously (both approvingly and critically) from works that have appeared in French and proved highly influential in francophone scholarship, but has rarely become known outside the francophone world. The translations are well-done and make for pleasant reading, although it was a bit bemusing to see the League of Nations repeatedly referred to as the Society of Nations. One word of criticism though, relating to scholarly responsibility. While the papers make clear where they have been published before, there is no indication of who translated them, nor whether quotations from French-language sources have been translated by the same individual or, even more tricky, whether works originally quoted from Englishlanguage sources have first been translated into French (for the original pieces) and then been translated back from the French. Moreover, in some cases underlying facts have been updated (e.g. with respect to the number of bilateral investment treaties in force), but it is never made clear on what basis, and whether this has been done systematically and by whom. That said, though, The Advancement of International Law opens up French horizons and contains a number of high-quality essays, characterized by theoretical and methodological rigour. It may well be that many of Leben’s conclusions, reached in these papers mostly dating from the 1990s, are no longer all that novel, but nonetheless, the way he approaches his topics is exemplary. This is a fine collection, and a good illustration of why French Studies in International Law has the potential to grow into an important and influential book series. Jan Klabbers University of Helsinki

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Genocide and Political Groups by David L. Nersessian. Oxford University Press, 2010. 368 pp. ISBN 978–0–19–958890–9 Perhaps no single topic has proven so controversial in the evolution of our understanding of genocide in international law as the protected groups. Nersessian has prepared what is surely the most thorough study on the groups protected by the prohibition of genocide. He examines the matter not only from the standpoint of the 1948 Genocide Convention itself, which quite clearly excludes political groups, but he also considers whether a broader concept of genocide might exist under customary international law. This book is exhaustively researched and beautifully written. The famous definition in Article 2 of the 1948 Convention identifies ‘national, ethnical, racial and religious groups’ as the object of protection. The expression is identical to the words that appeared in the draft resolution prepared by Raphael Lemkin for the United Nations General Assembly in 1946. But the final version of the Resolution spoke of the crime of genocide ‘committed on religious, racial, political or any other grounds’.1 It is often said that ‘political groups’ were included in the 1946 Resolution but careful reading shows that this is not entirely accurate. The original draft prepared for the Secretariat by Raphael Lemkin, Vespasian Pella and Henri Donnedieu de Vabres described the purpose of the Convention as preventing ‘the destruction of racial, national, linguistic, religious or political groups of human beings’.2 Again, this text is often misunderstood. Lemkin, Pella and Donnedieu de Vabres were not proposing a definitive text. Rather, their task was to provide a menu of options. We know that they were divided about including political groups, and that both Lemkin and Pella were opposed. The title of the book might be misleading, because it is really about the groups covered by the definition of genocide in a more general sense. Naturally, the debate about whether or not to include political groups has an important place in this discussion. Perhaps the apparent focus on political groups relates to the origins of this study as a doctoral thesis at the University of Oxford. The writer may have felt compelled, or was perhaps required by his supervisors and the examiners, to frame his research as a question, and to present it as an argument. This is indeed the accepted genre of doctoral dissertations, a requirement that is followed to a greater or lesser degree. Here, it may detract from the comprehensiveness of the research because of the final argument, whereby the author takes the position that political groups belong in the definition of genocide, and that their place should be established by a new protocol. The result is that an otherwise authoritative and magisterial study ends with a somewhat unconvincing proposition and an even more fragile and unlikely technique for its advancement. * The core of this study is an examination of the drafting of Article 2 of the Genocide Convention with a specific focus on the enumerated groups. There is an urban myth that political groups were excluded from the Convention because of Soviet opposition. It is 1. 2.

UNGA Res. 96 (I) (11 December 1946). Draft Convention on the Crime of Genocide, UN Doc. E/447 (26 June 1947), Article 1.

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said that the Soviets schemed to exclude political groups out of unease that ‘the liquidation of the Kulaks’, purges of their regime’s opponents and wartime executions like the Katyn massacre might fall within the scope of genocide. Nersessian convincingly reviews the drafting history to show a far more complex debate on this subject, and a fairly large consensus for exclusion. In particular, he recalls that the Soviets and their allies in Eastern and Central Europe actually abstained in the vote to remove political groups from the Convention. The resolution by which political groups were excluded was adopted by a large majority, with the support of the United States amongst others. The study also considers the more contemporary debate about the definition, prompted by the celebrated dictum in the Akayesu Trial Chamber judgment of the International Criminal Tribunal for Rwanda. There, the three judges advanced the hypothesis that the drafters of the Genocide Convention meant to encompass all stable and permanent groups.3 The Trial Chamber decided to interpret the provision in that light. It was a daring approach to interpretation and an unnecessary one, as the Rwandan Tutsi were easily subsumed within the terms ‘ethnical’ or ‘racial’. Nersessian agrees with the many critics of the Trial Chamber in this respect. The ‘stable and permanent’ thesis was all but forgotten in subsequent case law of the International Criminal Tribunals until the Commission on Darfur, established by the United Nations in 2004, revived Akeyesu’s ‘interpretative expansion’, as the report labelled it.4 The Commission suggested that ‘stable and permanent’ could safely be described as customary law, but it seems clear this was a misreading of the authorities. In the end, the Commission adopted the prevailing view whereby membership in a group is established by subjective criteria. An objective focus where ‘stable and permanent’ is used to enlarge the list in Article 2 isn’t necessary when the subjective approach is used. The discussion of customary international law in this study is particularly fine. The author resists what was surely a temptation, given the position that he advocates favouring the enlargement of the definition, to exaggerate the evidence that international custom already acknowledges political groups to be covered by the crime of genocide. The study includes an impressive and apparently thorough review of all of the national legislation enacted to give effect to the Convention. The results, with English versions or translations of the relevant texts, are reproduced in an appendix. Nothing like this exists anywhere, to my knowledge. This alone is worth the price of the book. There is an insignificant error, but one that bears correction, when the author suggests that the Canadian legislation is favourable to the inclusion of political groups within the definition. Actually, the Canadian legislation leaves the door open to an evolution in the Convention definition that might be expanded to cover other groups. It does this with a reference to customary international law. But it also deems Article 6 of the Rome Statute to constitute a codification of custom at the present time. And this would seem to entrench the exclusion of political groups, if anything. Certainly it is overstating the scope of the Canadian provision to suggest that it tilts towards political groups. Nersessian concludes that political groups belong in the Convention because there is 3. 4.

See Prosecutor v. Akayesu, ICTR Trial Chamber, Case No. ICTR-96-4-T, Judgment (2 September 1998), para 516. Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, UN Doc. S/2005/60 (25 January 2005), paras 498–501.

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no good, logical reason for their exclusion. Here, he moves a bit too quickly. It is one thing to try to discern intention from the fog of the 1948 debates, with their ambiguities and uncertainties. As time passes, context is harder to assess. The travaux provide a glimpse of the confused and sometimes conflicting visions of the drafters of the Convention as they struggled towards a formula that was, ultimately, adopted unanimously. But they had many votes along the way, including some favouring the inclusion of political groups, as well as the famous ballot that knocked them out. Today, treaty negotiations generally proceed with informal debates followed by consensus decisions, making it much more difficult to impute particular positions or views to one or another participant. Nersessian might have looked more closely at the negotiations leading to adoption of the Rome Statute. After all, to the extent that the fifty years of relative stagnation of the Genocide Convention following its adoption led to many calls, by academics and activists at any rate, for the amendment of the definition in order to include political groups, why were there no voices arguing for such a position in 1998? This was the golden opportunity to fix what some writers have called the ‘blind spot’ in the Convention.5 To be sure, much amendment did take place at the Rome Conference, but to the definitions of war crimes and crimes against humanity. There was only one feeble attempt to amend the definition of genocide. It came from Cuba, and was to add ‘social and economic’ groups rather than political groups. One by one, delegates took the floor at the Rome Conference to reaffirm their satisfaction with the definition in the 1948 Convention. There are, in fact, quite coherent reasons to exclude political groups. This depends upon whether one views the Genocide Convention as an instrument to address the protection of groups, in general, or one that confronts the most extreme manifestation of racism. If it is about racism, and minority groups (national, ethnic and religious, that is), then the exclusion of political groups makes perfect sense. This is in keeping with the other great, early initiative of the United Nations in the field of human rights: the International Convention for the Elimination of All Forms of Racial Discrimination, adopted by the General Assembly in 1965. That Convention excludes many groups victimized by discrimination. Would it not have been better to have an international convention against discrimination, period? That is surely the logic of those who propose expanding the Genocide Convention to cover other groups. But there are good reasons for international law to focus upon particular issues and evils. That is what the Genocide Convention does when it confines its scope to national, ethnical, racial and religious groups. This is not to gainsay the terrible crimes perpetrated in attacks on what are political groups. Here, a distinction is useful between the definition of the group and the motive for the crime. Genocide against national, ethnic, racial and religious groups may be committed for essentially political motives. This is covered by the Genocide Convention. Of note here is the 1946 resolution in the General Assembly which did not, in fact, define the scope of the prohibition of genocide as extending to political groups. Rather, it identified genocide committed on political grounds, which is not quite the same thing. 5.

See, e.g., Beth van Schaack, ‘The Crime of Political Genocide: Repairing the Genocide Convention’s Blind Spot’, 106 Yale Law Journal (1997) 2259–91.

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Many who have pondered the rationale for prohibiting genocide understand it as affirming the value society attaches to the survival of human diversity. The intentional destruction of a national, ethnical, racial or religious group violates the rights of the members of the group to life and to survival, obviously. But it also harms humanity as a whole. The disappearance of a group is a tragic loss, perhaps with analogies to the extinction of species of other living things. We cherish the language and culture of groups other than our own for their contribution to the richness of humankind in general. Nor do we favour the survival of one group over another. That sort of thinking, after all, leads us along the slippery slope to genocide. But do we view political groups in the same way? Certainly, political freedoms must be respected. They, too, make society richer, to the extent that they contribute to the dynamism of democratic life. But surely the disappearance of certain political groups is also a desirable outcome. Of course, they should not be exterminated, but their demise due to natural causes is often welcomed. We would not say the same thing about the groups protected by the Genocide Convention. Lawyers can analyse the debates about such matters, but law does not really provide the tools to explain why one group is protected and another excluded. This is something that emerges from the incoherence and cacophony of law-making by politicians and diplomats. Sometimes, laws don’t seem to make sense. But the Genocide Convention, with its focus on national, ethnical, racial and religious groups, can hardly be dismissed as illogical. In its clumsy way, the General Assembly affirmed in 1948 that the destruction of such groups was the most serious crime that could be committed. Its decision was surely nourished by the context. But the context was more than the Holocaust. It was also, perhaps, the manifestation of an understanding that the sufferings inflicted on the peoples of the world before, during and as a result of the Second World War could largely be attributed to the perverse lie that certain human groups were superior to others. This message might have been blurred had political groups been added to the mix. Amending the Genocide Convention by means of a protocol is an intriguing idea, and Nersessian is not the first to have proposed this. Other ways are also available to address the problem, however. There is a project already underway, directed by Professor Leila Sadat of Washington University, to develop a crimes against humanity convention. Its purpose is to replicate (and modernise) the Genocide Convention with respect to the cognate category of crimes against humanity. A volume on the subject was recently published by Cambridge University Press.6 Because the notion of crimes against humanity already covers political groups quite adequately, Professor Sadat’s convention would seem to fill the impunity gap with which and obviate the need to amend the Genocide Convention. Generally, while an amending protocol is a seductive proposition, in a strange way such instruments may retard judicial interpretation. The European Court of Human Rights decision in Soering is a good example.7 The majority of the Court might well have agreed to declare the death penalty to be a violation of article 3 of the European Convention, 6. 7.

Leila Nadya Sadat (ed.), Forging a Convention for Crimes against Humanity (Cambridge University Press, 2011). Soering v. United Kingdom, Application no. 14038/88, ECtHR Plenary, Judgment (7 July 1989).

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but could not get around the British argument by which the members of the Council of Europe had indicated their preference for amendment by way of a protocol rather than through the Court. Ironically, had there been no sixth Protocol to the European Convention, Soering might have wiped out the death penalty altogether, a step that the European Court finally took in 2010 (in Al-Saadoon8). The danger that an amending protocol might provide less and not more should not be overlooked.

William Schabas, oc, mria Professor of International Law, Middlesex University Professor of Human Rights Law, National University of Ireland Galway

8.

Al-Saadoon and Muffhi v. United Kingdom, Application no. 61498/08, ECtHR Fourth Section, Judgment (2 March 2010).

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Fragmented State Power and Forced Migration: Study on Non-State Actors in Refugee Law* Eeva Nykänen On the 28th of June this year, the Fourth Section of the European Court of Human Rights gave a judgment in the case of Sufi and Elmi v. United Kingdom.1 The applicants of this case, Mr Sufi and Mr Elmi, originated from Somalia, where the UK authorities were going to deport them. Mr Sufi and Mr Elmi, however, challenged the deportation decisions in front of the European Court of Human Rights. The applicants argued that the overall situation in Somalia, a country ridden by two decades of civil war, is so dangerous that by making them return there, the UK authorities would expose them to inhuman treatment and thereby violate the prohibition of refoulement, which is entailed in Article 3 of the European Convention of Human Rights. There is nothing exceptional about the facts of this case. The circumstances of Sufi and Elmi are, in fact, representative of a large share of today’s refugee reality. Recent statistics indicate that approximately 20% of the asylum seekers who apply for international protection in Europe come from Somalia, Iraq, and Afghanistan. These are countries ridden by civil wars and other large-scale conflicts, where different segments of the population, armed resistance groups, terrorist bands, and other non-state actors, fight for power and control. Individuals caught in such situations often suffer from the indiscriminate consequences of the conflict, such as suicide attacks and random bombings, as well as from the criminal violence arising from the disorganized situation. Some may be persecuted as members of a specific ethnic or other such group. Furthermore, in prolonged conflicts, the humanitarian conditions tend to be dire. There is no food, no shelter and no prospects for the future. In short, today’s refugee reality is to a great extent a reality of protracted conflicts, weak and failed states, power used and abused by various non-state actors, as well as significant numbers of displaced individuals. This is the reality that Mr Sufi and Mr Elmi were facing upon their deportation to Somalia. Instead, what could be considered as exceptional is the judgment by the European Court of Human Rights in this case. This is because the Court found in favour of the applicants. It concluded that if the UK were to deport the applicants to Somalia, it would violate their right to be free from inhuman and degrading treatment protected under Article 3 of the European Convention on Human Rights and consequently breach its obligations under the Convention. Through this decision, the Court brought to an end the development, which it had initiated in the Vilvarajah case in 1991.2 In Vilvarajah, the Court indicated in somewhat * 1. 2.

Lectio praecursoria, held at the public examination of the doctoral dissertation at the University of Turku, 15 October 2011. Professor Jens Vedsted-Hansen from the University of Aarhus acted as opponent. Sufi and Elmi v. United Kingdom, Applications nos. 8319/07 and 11449/07, European Court of Human Rights, Decision (28 June 2011). Vilvarajah v. United Kingdom, Application no. 45/1990/236/302-306, European Court of Human Rights, Decision (26 September 1991).

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ambiguous words that provided that the situation of generalized violence is exceptionally serious, the situation as such, without any grounds particular to the individual applicant, may generate a non-refoulement effect under the Convention. In the Sufi and Elmi case, the Court found, for the first time, that the overall situation had reached the required degree of intensity. As I mentioned before, the facts of the Sufi and Elmi case illustrate well today’s refugee reality of weak and failed states, where power has slipped from the state authorities into the hands of various non-state actors. It also illustrates the hesitation on part of the international community to respond to the challenges arising from such situations. It took nearly two decades, starting from the initial hesitant recognition that general situations of violence may raise issues under the Convention, for the European Court of Human Rights to rule that the required degree of intensity was actually met and that the overall situation therefore generated a non-refoulement effect. The UN Convention relating to the Status of Refugees3 dating back to 1951 along with the definition of the term ‘refugee’ that is entailed in this document still today constitute the corner-stones of the system of international protection of forced migrants. Pursuant to the definition, a refugee is a person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside her country of nationality and is unable or unwilling to avail herself of the protection of this country. Many states parties to the Refugee Convention, including all the EU states, have incorporated this definition into their domestic law as a ground for granting asylum. Importantly, though, there seems to be a mismatch between this definition and the reality of forced migration. For instance, in Finland, in 2010, only 3% of all asylum seekers were recognized as refugees within the meaning of the refugee definition, while approximately 30% of all applicants received a residence permit on some other grounds.4 There are a number of reasons for this mismatch. One is that the refugee definition may be seen as reflecting a cold war experience of becoming a forced migrant. As one commentator has described, the definition was ‘premised on what may be called peacetime persecution inherent in the ‘normal’ functioning of oppressive regimes as they were known’ when the Convention was drafted.5 Still today, this image of a refugee as a victim of state persecution seems to, to some extent, direct the way in which the definition is applied in practice, although the state-centricity of refugee law has been challenged from various directions. One important strand of this critique is the feminist critique of refugee law. Much of the discrimination and oppression encountered by women globally, such as violence within the family and female genital mutilation, occur in the sphere of the society that is labelled private, in the hands of private individuals. The system of refugee law with its focus on the state and the public sphere has been shown to marginalize or exclude 3. 4. 5.

Convention relating to the Status of Refugees 28 July 1951, in force 22 April 1954, 189 UNTS 150. Finnish Immigration Service, ‘Statistics’, (visited 10 October 2011). Jerzy Sztucki, ‘Who is a Refugee? The Convention Definition: Universal or Obsolete?’ in Frances Nicholson and Patrick Twomey (eds.), Refugee Rights and Realities (Cambridge University Press, 1999) 55-80 at 57.

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the needs of female refugees which are arising from violations taking place in the private sphere. Feminist critics of refugee law have developed ways of including such claims in the regime of refugee protection. However, although remarkable progress has occurred in this regard, a lot more still needs to be done in order to make the system truly responsive to the claims arising from violations taking place in the private sphere. This persistent gap between the normative reality and the factual reality, the gap between the state-centricity of refugee law and the fragmentation of state power in the refugee reality, calls into question the legitimacy of the system of protection of forced migrants. Although the challenges posed by the increasing significance of non-state actors to the international system of protection of forced migrants are widely recognized, no comprehensive research on this issue has so far been carried out. My dissertation seeks to fill this gap. The research combines three approaches – dogmatic, critical, and strategic. By drawing from the relevant legal texts of international and European law, national and international case law, as well as doctrinal writings, in this study, I analyse the content of the legal obligations on the international protection of persons facing threats emanating from third parties. Accordingly, the first research question of the dissertation is: How does the legal regime on the protection of forced migrants deal with claims that are based on violations emanating from non-state actors? Through this dogmatic analysis, I seek to get hold of the underpinning assumptions on the different understandings of the issue of non-state actors that are expressed in the legal discourse. Accordingly, the second research question is critical. It asks: What do the different ways of responding to claims by persons who flee violations inflicted by non-state actors reveal about the underlying assumptions of the regime on international protection? The third area of interest is strategic. I engage in a process of developing interpretative frameworks that could help us better respond to the needs of persons fleeing harm stemming from non-state actors. The purpose of the criteria concerning the eligibility for international protection is to draw the line between those included in the protection and those excluded from it. This differentiation is done by marking certain elements of the factual reality as relevant and others as irrelevant for the purposes of qualifying as a beneficiary of international protection. The strategic question pertaining to this is: How could this line between the relevant and the irrelevant, or inclusion and exclusion, be re-drawn so that the system of international protection would be more responsive to victims of violations stemming from non-state actors? My research establishes that although significant steps have been taken in order to make the system more responsive to the claims of asylum seekers fleeing harm inflicted by non-state actors, various structures and assumptions, which function to the detriment of such applicants, still prevail in the law and in the ways in which the law is perceived. An important example of the positive developments in this area is the EU Qualification Directive, which was adopted in 2004.6 The Directive expressly recognizes that violations inflicted by non-state actors may constitute a ground for international protection. The Directive also makes it clear that sexual violence and acts of gender- or child-specific nature 6.

Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, OJ 2004 L304.

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may constitute persecution. These recognitions seek to guarantee that there are no formal obstacles to granting international protection, either in the form of refugee protection or subsidiary protection, to victims of violations inflicted by non-state actors. Worth noting are also the developments in the area of international human rights law, of which the case of Sufi and Elmi is an example. The treaty monitoring organs, in particular the European Court of Human Rights, have through their practices concerning non-refoulement substantially enlarged the personal scope of the international protection in ways that benefit victims of harm emanating from non-state actors. The problems that, nevertheless, persist in this area largely stem from the underlying state-centricity of the manner in which the system of international protection is still understood. They also stem from the inability of decision-makers to truly seize the implications of the processes of fragmentation of power, or in other words, the processes of power slipping from the state into the hands of various non-state actors. Finally, the mentioned problems also stem from the inability of those responsible for refugee status determination to fully appreciate the impact of the various holders and relations of power on the lives of individual human beings. Too often the focus in the decision-making is on the state while other relations of power are neglected. Accordingly, this system is only of limited relevance to the victims of violations inflicted by third parties. However, as a compilation of open and flexible standards, the law on protection of forced migrants offers tools for responding to such claims in a better way. The crucial issue is how we use these tools. How do we interpret the reality of forced migration? How do we make a distinction between the relevant and the irrelevant in this reality? And how do we translate this into the language of law? The essential condition for making the system more responsive to claims arising from violations inflicted by third parties is that the focus be shifted from the system to the individual. When assessing protection needs, we must focus on the individual applicant’s past and prospective situation in her particular cultural, social, political and legal settings and the web of relations between her and the various public and private actors that are capable of using power over her. Only through such a shift in the focus, will we be able to guarantee the continuous relevance and legitimacy of the system of protection of forced migrants.

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Fragmented State Power and Forced Migration: Study on NonState Actors in Refugee Law by Eeva Nykänen. Doctoral Dissertation, University of Turku, 2011. The topic of this dissertation – i.e., the impact of the process of fragmentation of state power on the legal responses to forced migration – is very well chosen as the topic of scientific research within the discipline of law. The various aspects of the fragmentation process are posing significant theoretical challenges to international law, and not least to international human rights law and refugee law. Within these areas of law, the complex issues pertaining to forced migration transform the theoretical problems of fragmentation into practical legal problems that are reflected in both legislation, administrative practices and judicial decisions on applications for refugee status and asylum or other forms of international protection against the risk of persecution and other human rights violations inflicted by non-state actors. These protection problems often raise considerable political and legal controversy in European and other industrialised countries. This is not least due to the fact that such asylum applications are rather likely to be stemming from large-scale violations that result in the displacement of significant numbers of victims among whom some will seek protection in EU member states and other European countries. The background of the topic chosen, and of the legal problems that are subjected to the scientific research, is clearly presented in Chapter 1 of the dissertation. On the basis of these considerations, the author formulates her research questions precisely and pertinently as a dogmatic or descriptive one: how does the legal regime on protection of forced migrants deal with claims based on violations emanating from non-state actors? a critical one: what do the different ways of perceiving this issue tell about the underlying assumptions of the regime on international protection? and a strategic one: how can the system be made more responsive to such claims? While the following chapters focus primarily on the first research question, the critical and the strategic perspectives are being kept in mind throughout the dissertation. By doing so, the author provides important insights – dogmatic as well as critical – into the different perceptions of the issue of non-state actors of persecution or harm that appear to have been guiding, and indeed sometimes misguiding, administrative and judicial decision-makers in asylum cases. Thereby the author also, yet often implicitly, provides answers to the strategic research question. In this respect the dissertation pays due attention to the significant gender and age aspects of the norms of human rights and refugee protection. Thus, the author’s clearly stated research interest in gender issues is consistently being addressed in a balanced and convincing manner. It is inevitable that some of the assumptions underlying the research questions, as well as the way in which these questions are being examined in the dissertation, may invite for challenges and further discussion. Thus, in the opponent’s view the characterisation of the basic tone of the UN Refugee Convention as ‘exclusive’ (at 8, 10, 29, 32) certainly has some merit, and the author presents good reasons for this characterisation. At the same time, this does not seem to give the full picture of the potential for protection under the Refugee Convention regime, as it is in fact amply illustrated by the analysis

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of the scope of the Convention refugee definition provided by the author, in particular in Chapter 3 of the dissertation. As another example, it seems to be an accurate observation that the Refugee Convention reflects a ‘profound tension’ between the protection of the individual and the protection of the host community (at 9). This tension may be taken a little too far, however, by the reference to the Preamble of the Convention in which it is recognised that an ‘unduly heavy burden’ may be placed on certain countries by the grant of asylum (at 29). As also made clear by the author in this connection, the preambular statement can be seen as an emphasis of the need for inter-state cooperation in dealing with the refugee problem (fn. 72), and the notion of an ‘unduly heavy burden’ does not necessarily have any bearing on the interpretation of the Convention refugee definition. Again here, while perhaps potentially underestimating the personal scope of protection under the Refugee Convention by this introductory remark, the author draws no unwarranted substantive conclusions from the statement in the Preamble in her subsequent analysis of the Convention. Chapter 2 of the dissertation discusses the normative foundations of the system of international protection in a European perspective. First, the chapter provides an excellent overview of the Refugee Convention as well as the general principles of interpretation under the Vienna Convention on the Law of Treaties. In this connection the remarkable dichotomy between various interpretations pertaining to the crucial issue of non-state actors of persecution in the Refugee Convention is pointed out and illustrated by two significant positions in legal doctrine. It might have been interesting to have the author’s own in-depth analysis of this problem of interpretation on the basis of the sources of law referred to, yet in this context it is clearly acceptable to limit the discussion to a presentation of the various doctrinal views. As mentioned below, the author further discusses the ‘accountability approach’ in Chapter 3. Here she explains the traditionally rather strong position of this approach in the German protection regime and in parts of German legal doctrine by referring to certain theoretical perceptions of state power, apparently linked to specific historical experiences that have inspired a ‘very narrow and state-centric conceptualization of power’ pertaining to the interpretation of ‘persecution’ as a key concept in the Refugee Convention definition (at 113-17). Furthermore, Chapter 2 contains a really good discussion of the impact of human rights norms on immigration control, primarily focusing on the European Convention on Human Rights. While the analysis of legal problems concerning the detention of asylum seekers and persons awaiting removal from the country is particularly interesting, the issue of effective remedy under ECHR Article 13 and that of positive obligations under ECHR Article 8 might have been further elaborated upon. The final part of Chapter 2 introduces the Common European Asylum System and presents the Qualification Directive and its evolving regional understanding of the concepts of ‘refugee’ and ‘subsidiary protection’. This part includes an excellent discussion of the meaning and impact of the notion of ‘minimum standard’ harmonisation in the Qualification Directive as well as of important deviations of certain provisions in the Directive from the Refugee Convention. Against the background of the general normative foundations of the European system established for the protection of refugees and other forced migrants that were presented and discussed in Chapter 2, Chapters 3-5 of the dissertation provide extensive

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and often detailed discussions and analyses of the relevant norms of the Refugee Convention, the European Convention on Human Rights, and subsidiary protection under the EU Qualification Directive, respectively. Throughout these discussions, the author demonstrates impressive familiarity with relevant legal doctrine, legislative developments and a considerable amount of case-law from national and international judicial bodies, combined with high analytical capability. As particularly remarkable examples, it could be mentioned that the concept of persecution and the specific grounds for persecution in the Refugee Convention are subject to thorough examination in Chapter 3. This discussion includes an excellent presentation of the human rights approaches to the interpretation of the concept of persecution. As an interesting part of the discussion, the author here makes critical and generally persuasive observations on the derogability and the various typologies of human rights norms that have been suggested in legal doctrine as a basis for the definition of the concept of persecution. Chapter 3 aptly describes the evolving recognition of gender-specific violence as human rights violations, and consequently as persecution in the context of the Refugee Convention. In this connection an interesting parallel is drawn between the ‘accountability approach’ and the doctrine of failure of state protection as an element of the Convention refugee definition. In the opponent’s view the latter doctrine, as introduced by James C. Hathaway, does not necessarily imply the state’s legal accountability for the failure of protection in the country of nationality towards the individual refugee, and the doctrine does not in itself result in the requirement that lack of state protection – or evidence of such lacking protection – is to be considered a self-standing condition or a separate constitutive element of the very concept of persecution.1 Nonetheless, the author convincingly points out that such understandings may have significant negative impact on the availability of international protection in administrative and judicial practice. By providing examples of this line of reasoning in state practice the author simultaneously illustrates an apparent tendency among certain administrative or judicial decision-makers in asylum cases to attribute special features or meanings to legal concepts well beyond their intended scope and function, often resulting in unwarranted additional criteria for the selective identification of persons found to fulfil the refugee definition or otherwise to be in need of international protection. Chapter 3 also discusses other elements of the Convention refugee definition and its interpretation and application, including in particular the ‘nexus requirement’ of specific grounds for persecution, and the legal issues pertaining to internal protection alternatives and actors of protection. In this connection the author analyses large-scale violations and ‘private harm’ in the context of the Refugee Convention grounds for persecution, demonstrating here again her solid insights in the core concepts and principles of refugee law and her ability to critically examine their interpretation and concrete application in cases concerning individual asylum seekers. Chapter 4 of the dissertation, dealing with the issue of non-state actors in the context of the prohibition of refoulement under the European Convention on Human Rights, also contains several examples of high quality academic discussion. Thus, this chapter provides 1.

James C. Hathaway, The Law of Refugee Status (Toronto, Vancouver, 1991) at 105 and 125.

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an excellent analysis of the scope and the justification of protection against refoulement under ECHR Article 3, including discussion of the general theory underlying this protection principle as well as balanced conclusions on the various doctrinal approaches to this issue. The case-law of the European Court of Human Rights has been extensively examined as a basis of the analysis, and short descriptions of the implicit prohibition of refoulement under the UN Covenant on Civil and Political Rights and the explicit prohibition of refoulement under the UN Convention against Torture are provided for comparative purposes. The author presents fine observations on the evolving and absolute nature of the European Court’s interpretation of ECHR Article 3, while at the same time pointing out the significant relative elements inherent in this provision, as often reflected in the case-law applying the prohibition of refoulement in concrete situations. As an important aspect of the practical problems facing national authorities as well as for the European Court of Human Rights in the examination of asylum cases, Chapter 4 includes a rather short, but illustrative presentation of the evidentiary issues that may arise under the generally established criterion ‘substantial grounds for a real risk’. As the author points out, the former part of this criterion refers to the required standard of proof, while the ‘real risk’ requirement concerns the likelihood of the ill-treatment occurring. Following this presentation, the chapter discusses the legal issues concerning non-state actors and indiscriminate violence under ECHR Article 3. While the latter aspect might deserve further discussion of the complexities pertaining to ‘individualisation’ of the risk of ill-treatment, the general presentation and analysis of these issues is excellent, not least due to the critical and open-minded discussion of the various readings and interpretations of the early case-law of the European Court of Human Rights, as confirmed by the Court’s more recent judgments dealing with large-scale or indiscriminate violence. The analysis of ECHR Article 3 and of the relevant case-law from the European Court of Human Rights, as presented in Chapter 4, provides a useful basis for much of the discussion in Chapter 5 of the dissertation, dealing with subsidiary protection according to the Qualification Directive. The author here points out the differences between Article 15 of the Directive and the scope of the prohibition of refoulement under ECHR Article 3, some of which may be more significant than others. The complex problems of interpretation of Article 15(c) of the Qualification Directive are subject to extensive analysis, once again carried out in a convincing manner and resulting in truly balanced conclusions. In this connection it should be emphasised that the eloquent discussion of the impact and meaning of concepts of international humanitarian law on the scope of application of Article 15(c) in situations of armed conflict is of particular interest and relevance, both from a theoretical and from a practical perspective. On the basis of the above considerations, the opponent is bound to conclude that this dissertation evidences extensive, thorough and skilful research that responds to the research questions set out in a fully satisfactory way. It demonstrates not only the author’s acquaintance with the legal discipline in general and the special areas of law relevant to the topic chosen, but indeed also her capability to apply legal research methodology in the examination of a highly complex topic that combines international and European human rights law, international and European refugee law and international humanitarian law. Not least due to the cross-cutting nature of this topic and the legal research necessary to

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examine it, and the high academic quality of the results of this research, the dissertation fulfils the general criteria for a doctorate in law. The oral defence of the dissertation confirmed this impression of high standards in the candidate’s research and presentation of the selected legal issues, as well as in her responses to the opponent’s questions and comments relating to the dissertation. The few critical remarks above are indeed of minor importance against the background of the general academic quality of the dissertation, and the candidate’s responses and explanations during the oral defence were convincing and bearing witness of her extensive knowledge of the legal issues pertaining to her research topic, and of her strong analytical capability. I therefore recommend that the title of Doctor of Laws be conferred upon the candidate. Jens Vedsted-Hansen Professor of Law School of Law Aarhus University

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No Citizens Here: Global Subjects and Participation in International Law* René Urueña Welcome to Global Governance, version 2.0. The golden years of the Washington Consensus are long gone, and History has kindly declined Fukuyama’s invitation to just end. We have witnessed 9/11, the once-called War on Terror, a war in Iraq, another one in Afghanistan, the birth of an International Criminal Court, and a massive international financial crisis. Humanitarian tragedy in Somalia, in Sudan, in Haiti. We have seen the adoption of a common European currency and its first failures. And, yes, we have seen the protests. In Athens, in Seattle, in Buenos Aires, we have seen the young and the old, the black and the white, the poor and the … well, very seldom the rich, but, in general we have seen people from the most diverse backgrounds facing new forces that shape their life – sometimes resisting, sometimes cunningly appropriating, sometimes wholeheartedly embracing them. We have seen new sources of power emerge beyond the borders of the state. Centers of power that were not there fifteen years ago, and shape our lives today. Growing up in the digital era is serious business, and is having effects everywhere. And that is, finally, perhaps the most fundamental change: today’s everywhere is, well, everywhere. As we move into a post-American world, new players emerge in the global game: China, to be sure, and Brazil. But also the middle class of a new contingent of mid-income states, with access to information, and a credit card in their hand. Things have changed. And they have changed fast. Global power has become, at the same time, more concrete and more diffuse. We see concrete expressions of power that would have been unthinkable twenty years ago, such as the Security Council’s anti-terrorist list. But we also see an increasing use of diffuse power, dearly felt yet hardly pinpointed; think, for example, of the regulatory chill that derives from international investment arbitration. And international law is right in the middle of it all. From the war on terror to climate change, from currency exchange to access to medicines: international law is the language of choice of Global Governance 2.0. And yet, this language seems to be a strange concoction, somehow familiar as it uses ingredients we know well (a treaty here, and international organization there), but somehow different as a whole. The paradigms of international law we developed in the context of the first wave of (neoliberal) globalization seem to have lost their explanatory power. Well, yes: we resisted the great Eurocentric narratives of international law. There is now an international legal vocabulary to talk about colonialism, the Other, apology and utopia. We have advanced greatly. And yet, the dichotomies of center/periphery, legal subjects/legal objects, and regulation/ non-regulation, seem to be still deeply engrained in our way of thinking about global governance, limiting the possibilities of emancipation we can imagine. As greater energy is devoted to think about the role of law in global governance, there is less attention to human beings. We seem to have, somehow, factored actual human *

Lectio praecursoria, held at the public examination of the doctoral dissertation at the University of Helsinki, 27 November 2010. Profesor Wouter Werner from VU University Amsterdam acted as opponent.

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beings out of the discussion. We presume there is a subject somewhere, but what we are really worried about is control. How to control bureaucracies? Is fragmentation a problem? More law-making by international courts, or less? More soft law, or less? And what about judicial review? Meanwhile, there are some fundamental questions that remain unanswered. Or rather, whose answers are presumed. We need to develop new ways of thinking about the relation among governance, law and the human being. We need to expand the frontier of possibilities in our thinking about the role of the individual in global governance. Instead of repeating over and over again the same patterns of international legal scholarship, we need to think originally, and push the limits of how we come to think like we do about the things we care about. Now: there are hidden patterns in the way we think about human beings as legal subjects in global governance. The accumulation of such patterns forms a narrative: the narrative of global subjectivation which will be the main focus of my intervention today. Borrowing from Foucault, subjectivation is the constitution of subjects through disciplinary power. This process may occur through several mechanisms, though I wish to focus here in the deployment of the legal language. As feminist, race and queer theory have shown, law not only regulates, but actually constitutes the very subjects that are allegedly regulated. To be sure, the process of subjectivation occurs in a wider societal context. Just as the feminine subject was constituted in the wider context of post-colonialism and migration, the global subject is constituted in the wider context of a risk society. A society where the central preoccupation is not anymore the distribution of wealth, but the distribution of risk. And this sort of endemic risk has a very particular characteristic: it is truly unknowable. As a consequence, the key feeling in a risk society is fear. We fear because we don’t know what we don’t know. As Donald Rumsfeld (who else?) infamously put it: these are times of unknown unknowns. Under such uncertainty, risk societies are highly dependent on knowledge, and are structured around independent communities of selfreferential expertise, which reveal relations of causation and create islands of knowledge, which in turn populate the landscape of risk societies. Enter international law. Correspondingly, international law in risk societies is also structured around self referential regimes, a phenomena we often call ‘fragmentation’. If it is true that international law is fragmented, and it is also true that international law creates subjects, then it follows that international creates fragmented subjects. In this context, let us briefly consider the subjects constituted by two dominating international legal languages since the 1960’s: international economic law, and human rights law. Let us start with international economic law. The first character in our cast is homo economicus, as the subject of this specialized regime of law that has become one of the default languages of global governance, as it has colonized contemporary political debate. Homo economicus is a subject of law that has no inherent value, but rather exists only in as much as he or she is economically active. In contrast to traditional accounts that place its origins in IR realism, the genealogy of homo economicus can to be traced to the interaction between international law and economics. Traditional law and economics had to go through surprising changes in order to become a viable theory of international law, especially in relation to its theory of the subject, and its legal instrumentalist approach. Homo economicus reflects such process as a self-contained subjectivity. These changes have

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found a way to permeate the established common sense in trade and investment institutions such as the World Trade Organization and investment tribunals. Consider, for example, the investor-subject in the law of expropriation and fair and equitable treatment. The investor in this context does not ‘exist’ and has no inherent value as a subject. Rather, the subject is constituted as a function of what it does; in this case, to undertake an economic activity that can be defined as an investment. In this context, the individual exists only because it invests; it is thus subjectivized as a homo economicus: a wealth maximizing actor, constituted as such by international investment law. International economic law is only rivaled by human rights law in its colonization of global governance. As opposed to homo economicus, the individual is the cornerstone of the human rights construct. Even if one recognizes the state-centered nature of international legal obligations the individual cannot be set aside, as illustrated by the decisions of the ICJ on the Genocide Convention, and on Article 36(1)(b) of the 1963 Vienna Convention on Consular Relations. However, despite the fact that the individual is, indeed, the center of the human rights rhetoric, such as entity is lacking any substantive content. The notion of ‘human dignity’ and its role in the normative justification of human rights shows that the subject in human rights is an empty vessel, waiting to be filled. Such is the first phase of subjectivation in human rights law. In Phase Two, human rights institutions are empowered to fill that empty vessel with content, thus completing the subjectivation process. The result of subjectivation in HRL is, then, doubly problematic: on one hand, it frames human beings as passive entities who require outside aid (ideally, from human right institutions) to mobilize. And, second, it empowers human rights bureaucracies (and their highest priests, legal professionals) in the process of defining who the subject of global governance is. What emerges of these phases is a worrying canvas: while HRL is the dominating language of emancipation, the emancipation it promises is not inspired by a thriving human spirit, but by the empowerment of bureaucracies. Is it in that context that one finds a new dimension to what David Kennedy said years ago: human rights generalize too much, because [t]o come into understanding of oneself as an instance of a pre-existing general – “I am a ‘person with rights’ – exacts a cost, a loss of awareness of the unprecedented and plastic nature of experience, or a loss of a capacity to imagine and desire alternative futures.1

A passive entity, an empty soul: such is the human rights subject, the second character of our cast. International economic law and human rights law are symptomatic of the reality of fragmentation. As a reaction, recent international legal scholarship has proposed two complementary (and sometimes competing) ways of thinking about law in global governance: the first is global constitutionalism; the second is global administrative law (GAL). These two schools feature, in turn, their own subjectivation processes. Global law constitutes a ‘communal subject’; that is, a subject that exists only in as much as she belongs to a community. Such subject stands between homo economicus, and the empty soul of human 1.

David Kennedy, ‘The International Human Rights Movement: Part of the Problem?’, 15 Harvard Human Rights Journal (2002) 101–125 at 111.

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rights law. On one hand, she stands as one of the main sources of legitimacy in both GAL and constitutionalism; therefore, the communal subject does have inherent value in and of itself. On the other hand, the communal subject is not an agency-less entity waiting to be defined by a human rights institution. The communal subject is not passive: she is active in belonging to a community, and because of such activity, she becomes a source of legitimacy for the global regulatory machinery. Now: how do GAL and constitutionalism constitute the communal subject? In all truth, given their distinctive legal character, neither of these projects really focuses on the subject, as they seem obvious of their implications in subjectivation. Constitutionalism seems to be more concerned with values than with people. If followed thoroughly, constitutionalism could be considered successful without ever considering the subjects who live under the rules aptly legitimized by its normative agenda. The same can be said about GAL, whose focus on procedure seems to be an ill-fit for a specific theory of the subject. Indeed, both constitutionalism and GAL almost require that we take subjectivation lightly, and make little of its connection to global governance. At best, the subject of global constitutionalism and GAL is the anonymous particle of an ill-defined global polity – invoked only to deny its existence. That is, however, only the beginning of the story. Both GAL and constitutionalism are dependent on the concept of legitimacy, and there is an intimate link between legitimacy and the process of subjectivation. The quest for legitimacy in both has concrete effects on subjects, thus triggering (perhaps unwillingly) a process of subjectivation. There is, as it were, an unintended effect of subjectivation derived from GAL and constitutionalism, which not for being unintended is less real. Following Tom Franck, legitimacy is intimately linked with the notion of community, which in turn triggers subjectivation. Ultimately, the definition of community plays the role of an inclusion/exclusion device: the actor is recognized as a subject by global law if she belongs to the relevant community. If she fails to present herself as a member of the community, then she will fail to exist for global law. No subjectivation will occur; no communal subject will be constituted. Such is the downside to this homo communis: if the individual is not involved with the community, she will not be a global subject for GAL or the constitutionalist mindset. Thus, for example, participants in local struggles may have an interest in defining themselves as indigenous populations, only to be recognized as a subject in global scale. The same can be said of the struggle for women’s rights, where some debate has followed the idea that a very deep, and very unique, feeling of injustice needs to be framed as a problem of transnational activism, in order to be heard by global institutions in general, human rights activism can be read as a story of reframing of local interests as global vernacular, as a way of creating communal subjects out of mere individuals: Sally Merry’s imagine of the local translator (who translates the discourses from international law to specific situations of local suffering and violation, and then does the same in the opposite direction) powerfully conveys this reality. The communal subject is constituted in the practice of global governance institutions. In international judicial bodies, participatory procedures are instrumental to that effect, at the International Court of Justice, in foreign investment arbitration, and at the WTO. The same narrative can be read in the practice of global institution of nonjudicial nature, especially in participatory models before the UN, the law-making process

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of the WTO, the European Union, and other instances beyond traditional institution of global governance, especially global regulatory networks, such as the International Competition Network and the Basel Committee on Banking Supervision. Ultimately, all of these institutions somehow recognize, through different means and in varying degrees of intensity, that there is a community interest involved in their decision; that is, that their decision involves not only the immediate parties to the conflict, but the interest of a more general community. This underlying community interest reveals a problem of legitimacy, as the respective tribunal need to justify its decision, not only to the parties, but to the community at large. Enter the idea of non-party participation through amicus curiae interventions. Participation becomes a way of connecting the underlying community interest of the decision with the larger community. This move is ideological, in the sense that it deploys a legal discourse in order to justify a given distribution of power, and cannot be spelled in as many words by the tribunal; hence, the bulk of the discussion is on technical procedural terms, which (for better or for worse) need to be understood in order to see the underlying subtle move of subjectivation. Now: up to this moment, I have explored the difficult interaction between international law and the legal subject in the context of global governance. I have argued that there are, essentially, three subjects being constituted by international law: (1) homo economicus, (2) the human rights subject; and (3) the communal subject of global law. Up to this point, the argument has been, to an extent, descriptive: after following closely certain patterns of legal argumentation in global governance, a certain narrative has been proposed that makes sense of these different patterns. The main characters of this narrative are our ‘subjects’, who seem to be well identified by now. I want to use the last minutes of this intervention to state my belief that that there is a serious problem with the landscape unveiled by this narrative. I fear that subjectivation is conceptually disconnected from human experience, and has two perverse effects: The first is the ethical incoherence that derives from the subjectivation process in global governance. Each model of subjectivation implicitly features an ethical approach, which makes it inherently incoherent with the other two competing models. Thus, the same person may be framed as a homo economicus by one legal system, and as a helpless entity by the other, at the same given time. Is it not only that fragmented international law creates fragmented subjects: it seems to create incoherent human beings. The second is the role of subjectivation as an inclusion/exclusion device. The dynamics of exclusion have real consequences on real people. When it is law that creates the subjects, there is an inherent normative weight to that statement. Therefore, when it is law that fails to recognize one as a subject, there is also an inherent normative message in such assessment. In a way, it is adding insult to injury: not only is one excluded from global governance, this exclusion is presumed to be correct, as it is performed through legal means. This problem though, cannot be solved from within the rhetoric of subjectivation, as it derives from the dynamics of exclusion inherent to that process. Whoever the subject constituted through legal means is, the very effort to constitute it will be an exercise exclusion of someone else. Otherwise, no subject would be possible. Now: a possible answer to this situation would be to argue against subjectivation, and rethink human agency as the corner stone of global governance. Against the notion of individuals being ‘constituted’ by the legal system, this alternative would propose placing

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the individual, as an end in herself, right in the middle of the legal regime. However, I think this move is mere window dressing. It as a reformulation of global constitutionalism, that somehow seems to imply that humanity in its purest form is somehow free from structural constrains. ‘If we could just unearth the value of humanity’, this view seems to argue, ‘then we could would have freedom and potentiality, in its purest form’. And yet, this is not the case. While we need to be wary of reifying regulatory structures that are the outcome of political choices made by those in power, it seems ill-advised to derive from this attitude the belief that there is somewhere an essentially unburdened human spirit that may serve as the core of subjectivation. One just needs to walk around Bogotá or London or any major city to realize that not everything is possible for everyone. There are obstacles (extreme poverty, systemic discrimination, extreme violence) that simply cannot be reasonably expected to be overcome by an individual human being. Recall the notion poverty trap, where it becomes impossible for an individual to actually think of a life that is better-off. While denouncing the structure as non-necessary makes perfect sense, and rediscovering the human being as the vital center of governance may sound reasonable enough, this strategy fails to consider that the structure is all there is for those who are radically excluded. The project of re-humanizing subjectivation cannot be based on simply ignoring the effects of structural constraints on the human experience. We need to acknowledge such effects, while rejecting the idea that the structures that create them are natural phenomena. A contact point between agency and structure may be the unpacking of expertise as a technology of global governance, which I think is a valuable and promising research agenda for the near future. Global subjectivation leaves us in a quite paradoxical situation. Fear of Marxism has led us to suspect deterministic models of society and history: trust is now in agency, and the possibility of change. And yet, structural determination is always there: as we have discussed, the frontier of what is possible is, at least in part, determined by what actually exists. The structural argument simply moves to the background. In the case of subjectivation, the effect of this move is that, while post-deterministic theory tells us that all is possible, the underlying message is that all is possible within the accepted categories of subjectivation. The sky is the limit if one succeeds in being recognized as a homo economicus by international economic law, or as a ‘public interest’ NGO by global law. But subjectivation is an inclusion/exclusion device: if one fails to be recognized as such, there is no agency at all to be deployed. One of Roberto Bolaño’s characters in his novel 2666, a painter by the name of Edwin Johns, says: As far as coincidence is concerned, it’s never a question of believing in it or not. The whole world is a coincidence. I had a friend who told me I was wrong to think that way. My friend said the world isn’t a coincidence for someone travelling by rail, even if the train should cross foreign lands, places the traveler will never see again in his life. And it isn’t a coincidence for the person who gets up at six in the morning, exhausted to go to work; for the person who has no choice but to get up and pile more suffering on the suffering he’s already accumulated. Suffering is accumulated, said my friend, that’s a fact, and the greater the suffering, the smaller the coincidence.

Then someone asks: ‘As if coincidence were a luxury?’ How would we answer? One may take Johns’ position, and denounce all structures:

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those who are free live in a world full of coincidence and surprise, which can be shaped at will. I am not a homo economicus, I am not a human rights subject. Agency is the center of it all: subjectivation in all of its forms needs to be resisted. The move here is to advocate the redefinition of the human being as the center of global governance. Rediscover: everything is there for the taking. This move, though, is only a constitutionalist answer that fails to address the real dimension of the problem. One risks ending up like Bolaño’s character, a painter who cuts off his own hand right to hang it up in one of his paintings. And he does it for the money; to better the value of his work. Radicalism is a high yield investment. A second strategy is to take the friend’s advice. Suffering, lack of opportunity and violence are the relevant factors. The structure is definitive; the process of subjectivation does determine what we are. And, even we feel free (as if one travels in a train), even when we are supposedly unique and choose Mac instead of Windows, that fair-trade latte instead of a Starbucks, those China-made vintage jeans: even then, we are just expressing our structurally defined subjectivities in structurally approved fashion. What we are is nothing different from what we are allowed to be: the rich and the poor are, at the end, very similar indeed. Both these answers leap from naïveté to cynicism with astonishing ease. The idealist anti-necessitarian becomes the cynical strategist of social redesign. The pessimist structuralist ends up believing in the human spirit as a vehicle for emancipation. In the context of subjectivation, this dynamic leads to a general uncertainty that is almost unbearable. And, to make matters worse, even if one is recognized as a subject (which is not necessarily so), one may end up being defined simultaneously as, say, a homo economicus and as a human rights subject, which in turn implies a conflicting ethical understanding of the human being. I believe that this patterns lead, ultimately, to a global subject in search for sense. The radical transformations of the risk society leave us all in a state uncertainty, which is incoherently solved by the subjectivation process implicit in international law. Almost like children, we seem to hold tight to whatever gives us some ultimate sense. However, we only receive conflicting messages, contradiction upon contradiction. A riddle, wrapped in a mystery, inside an enigma, as Churchill would have it. In the project of reversing this global loss of sense, I have argued that law will not take as all the way required. There is really no law, only lawyers. Therefore, the language of ethics may be of use. From the same perspective, focus on expertise seems to be also useful. Ultimately, the whole point of my work is that it is possible to strike a balance between naïveté and cynicism, and build an agenda that rediscovers responsibility and justice.

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No Citizens Here: Global Subjects and Participation in International Law by René Urueña. Doctoral Dissertation, University of Helsinki, 2010. General The book discusses the fragmentation of international law; the emergence of different functional legal regimes each with their own vocabulary, expert-knowledge, professional biases, procedures, etc. The fragmentation of international law is one of the most hotly debated topics in international law nowadays. Urueña’s study, however, deviates from the questions and approaches that have so far dominated debates on fragmentation. Most studies on fragmentation have focused on its (possible) consequences for the unity and coherence of international law. Is it still possible to imagine international law as a unified, single coherent system governed by general rules and principles? Urueña takes a different starting point. His focus is not on the international legal order as such, but on the creation of international legal subjects in an era of fragmentation. The basic idea underlying the study is that a fragmented international legal order (if the term ‘order’ still applies here) creates fragmented subjects. Urueña argues that international law creates essentially three subjects: the homo economicus, the human rights subject and the communal subject. The creation of fragmented subjects is a problem, the book contends, because it creates ethical incoherence and constitutes mechanisms of exclusion. By taking the effects of fragmentation on the subject as its focal point of attention, the book makes an original contribution to existing scholarship on the fragmentation of international law. In addition, the book links the fragmentation debate to important sociological/philosophical streams of literature, in particular Ulrich Beck’s theory of the risk society, Michel Foucault’s ideas on subjectivation and virtue ethics. The attempt to rethink the development of international law through these lenses makes the book an interesting read that adds to a broader research agenda. Finally, the book in and of itself is a contribution to existing scholarship: it is simply a pleasure to read. It is well-written, shows a strong personal commitment, combines theoretical and philosophical insights with technical legal analysis and is thought-provoking. Below, I will briefly discuss the most important aspects of the study, with a special focus on the more theoretical and methodological points as these are, in my view, the most interesting, original and sometimes also problematic aspects of the book. I will basically follow the order of the arguments as set out in the book: risk society and fragmentation, subjectivation; economic law; human rights law; global administrative law and constitutionalism; the role of experts. Although the underlying analysis of the book will be a more critical one, I would like to stress that my critical comments should be read in the context of what I have written above: the book is a valuable contribution to existing scholarship.

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Risk Society and Fragmentation The book starts out from risk theory as set out in the works of Ulrich Beck. This is a fruitful point of departure, as reflexive modernization has had significant impact on the emergence of new legal structures, rules and principles. The first chapter provides a good and readable summary of the main arguments put forward by Beck. Unfortunately, the book does not discuss works that could have provided a more natural bridge between the two main topics of chapter one: risk and subjectivation. In this context, the Francois Ewald’s studies on risk, the welfare state and precaution could have been of particular importance. Nor does the book take a very critical perspective on Beck’s reading of modernization and the emergence of new types of risk. It basically follows Becks argument without a discussion of his critics. An example is the argument that global (risk) problems transcend national boundaries and require global solutions. This commonly held position, however, does not do justice to the way in which global problems have helped to redefine and sometimes strengthen the role of national states (the book itself also shows that, e.g. in its discussion of WTO law). Finally, the idea of risk society does not play a very prominent role in the substantive part of the book (Chapters 2–6). It remains unclear, for example, what the exact relation between reflexive modernization and fragmentation is. Fragmentation is not always brought about by reflexive modernization, as for example the age-old division between the law of war and the law of peace attest – and even some of the examples in the book itself illustrate. It is even possible that reflexive modernization spurs the development of overlapping techniques to handle uncertainties (e.g. the emergence of a precautionary logic in different fields of international law). Here the book could have been provided more information and explanation as to the relation between reflexive modernization and fragmentation.

Subjectivation The concept of subjectivation is the central to the study as a whole. As I have stated above, the focus on processes of subjectivation is one of the most important contributions this study makes to existing scholarship. Too often, (international) law is portrayed as a system of rules that regulates relations between pre-existing entities, thus leaving aside the crucial role of law in the constitution of these subjects in the first place. This book moves the process of subject formation to the center-stage. However, the way in which ‘subjectivation’ is conceptualized is not free from difficulties. The book seems to work with two different conceptions of ‘subjectivation’. The first is set out in the beginning of the book, in particular at page 23:1 ‘the question is not what the subject “is”, but rather how he or she comes to recognize him/herself as a subject. In that sense, the subject is relevant, if only because it is part of the process that is the actual focus of the question’. To me, this is the most accurate conceptualization of ‘subjectivation’, as a process; as something happening. The second conceptualization is not made very explicit, but shows itself in the discussions of Chapters 2–6. Here, processes of subjectivation seem to be equated with the creation of a legal subject through legal rules and processes. Rather than studying 1.

References refer to the pages of the manuscript in the binder.

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the process through which a subject comes to recognize him/herself as such, the study focuses on the personae created by law. Even where the book claims to take a ‘law in action perspective’ (e.g. at 55) it still maintains a focus on how legal persons are defined by law, scholars and judges (ibid.) At other places, subjectivation has more explicitly become a top-down affair, which is done by bureaucracies (at 116), can be ‘outsourced’ (at 268) and cannot take the form of self-regulation: ‘If an industry regulates itself it seems somehow awkward to classify this as a mechanism of subjectivation’ (at 282). This approach, however, contradicts the first, more process-oriented conceptualization of subjectivation and actually waters down the new and original take on fragmentation offered in the first part of the book. There might even be a third concept of the subject in the book. This comes to the fore where the study talks about the structure/agency problem. In this context, the problem of subjectivity seems to be transformed into the question whether structural limits preclude the freedom of agents. This way of approaching the structure/agency debate, however, does not tell us much about the way in which the agency and the freedom of a subject are constituted in the first place.

Economic Law This section reads as if it is closest to the heart of the author. This results in sometimes forceful and insightful aphorisms, such as the one on page 53: ‘When legal regimes and institutions collide, they are not seeking to be formally superior …, they strive to become the default language of global politics’. At other places, it results in overstatements such as the claim that loyalties to nations or clans are being replaced by brand loyalties (at 54). The chapter discusses both literature on law and economics and the development of investment law. The relation between the two, however, remains underdeveloped. Has academic literature indeed affected legal practice? If so, how? Especially given the sometimes quite strong language used in this chapter, it would have been good if the relationship between academic literature and the practice of investment law were spelled out more explicitly. Moreover, the analysis of law and economics, while generally clear and convincing, raises some questions. The most pertinent one, to me at least, regards the critique of instrumentalism and managerialism. The book advocates respect for the ‘inherent value of the legal form’ (at 65), which raises the question what this ‘form’ and the ‘inherent nature of the value’ of this form could be. How would respect for the legal form as such look like? Moreover, one may wonder whether the managerialist perspective on international law (at 69) is not simply self-defeating. If international law indeed looses its independent normative pull, as the author argues, how could it then still serve as an instrument of foreign policy?

Human Rights Law This chapter argues that human rights law combines its promise of emancipation with the empowerment, not of individual human agents, but of bureaucracies. The subject created by human rights law is an ‘empty soul’, a passive entity that awaits salvation by human rights professionals. The way in which the chapter lays bare a fundamental ten-

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sion in human rights law is thought-provoking and contains a valuable core. In my view, however, it also overstates its case in some respects. In the first place, it argues that the subject of human rights nowadays constitutes the ‘ultimate source of moral justification of the international legal system’ (at 95). This may be a position held by a large group of liberal thinkers, but as the argument stands it seems to strongly worded. The chapter underpins this claim by reference to the work Waldron and the existence of a right of individuals to be recognized before the law. Both arguments do not suffice to warrant the claim that the individual indeed has become the ultimate right holder of the international legal system as a whole. In addition, such an argument sits uncomfortably with the thesis of fragmentation defended in the book: is there still such a thing as the international legal system with one single foundation? Secondly, it argues – through a very interesting analysis of human rights treaties - that the ultimate basis of human rights law is human dignity and not human agency. It shows, quite convincingly, that the rather empty category of human dignity could function as a means to reach consensus on the ultimate foundations of human rights law. Still, I am not convinced that the idea of the individual as a ‘passive, helpless entity that requires protection’ (at 106) indeed underlies all human rights provisions. How would this, for example, relate to rights protecting active citizens, in the form of political participation, political organization or free speech? Thirdly, the relation between the creation of a ‘helpless, passive subject’ and bureaucratization requires some further explanation. It argues that human rights bureaucracies fill the empty subject of human rights law with content, thus empowering bureaucracies instead of individuals. In this context, the argument goes, legal professionals are expected to take a deformalised, policy stance towards human rights. This, however, is not backed-up by an empirical analysis showing that human right bureaucracies indeed view their role in this way. Nor is it made plausible that other foundations of human rights law would have yielded different results. The reader thus gets the impression that an interesting hypotheses is formulated, but that it yet has to be corroborated or falsified.

Constitutionalism and Global Administrative Law The second part of the book is dedicated to the creation of communal subjects in the context of Global Administrative Law (GAL) and international constitutionalism. It contains an in-depth, critical discussion of both projects in international law and attempts to link them to more concrete and sometimes quite technical-doctrinal debates in different fields of international law. Here the author shows that he is also a good practical lawyer, who knows his case law well and who knows how to analyze doctrinal arguments. While this all makes the analysis in part II quite rich, it also raises some methodological problems and questions. The most fundamental problem is the relationship between the two theoretical schools (GAL and constitutionalism) and the illustrations that are taken from WTO law, NAFTA, UN law, EU law, etc. GAL and international constitutionalism are general theories (or approaches) that try to make sense of developments in international law, both from an empirical and from a normative point of view. The practical fields discussed in Part II are of a different nature – they are not ‘applications’ of the two approaches in some form

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or another. This raises the question whether it is possible to use cases from these fields to illustrate how GAL and constitutionalism create communal subjects. Moreover, it raises questions regarding the relation between the arguments made in Part I of the book. There the argument was that the subject of international economic law is the homo economicus. In Part II, examples taken from international economic law are used to show how GAL and international constitutionalism create communal subjects. Although the author shows that he is well aware of the methodological difficulties involved in his analysis (see, for example, his remarks at 159), the book does not come up with a convincing solution. Another problem is the way in which the process of subjectivation is analysed in Part II. The focus is on participation, in particular of individuals and non-governmental organizations. The study does not analyze processes of subjectivation of states and international organizations. By leaving out the subjectivation of these two legal persons, however, the study bypasses one of the crucial aims or points of GAL and international constitutionalism: the creation of civilized and disciplined states and international organizations. This raises the question whether the study, with its focus on participation, captures the core of both approaches.

Subjectivation and Expertise The last chapter analyses the consequences of the creation of different subjects as well as the possible ways to reconnect international law to human experience. This chapter contains the seeds of a fruitful and interesting research program, that invites international lawyers to focus on individual decision-makers rather than on rules and procedures to counter the negative effects of fragmentation. The analysis of the problems brought about by fragmentation, however, is still a bit underdeveloped. The issue of ethical incoherence, for example, is only read in a negative light, as if the process of subjectivation by international law somehow manages to capture the whole human agency. This might indeed sometimes be the case, but the section does not really show this; it mainly states that ethical incoherence is the necessary negative consequence of the creation of fragmented subjects. In addition, one may wonder whether ethical incoherence is indeed always a problem. Especially if one takes an approach that is closer to human experience (as the author does), incoherence does not necessarily have to be a problem. On the contrary: it could create the possibility of doing justice to the way in which human beings experience their world. Moreover, the chapter starts with quite a strong statement: international law essentially creates three subjects, the homo economicus, the human rights subject and the communal subject. This might be just a matter of formulation, but in its current wording this raises the question why there could not be more types of subjects, such as for example the subject created by the laws of war. Finally the last part of the book could profit from going back to the work of Ulrich Beck, in particular Beck’s thesis of reflexive scientization. According to Beck, one of the characteristics of risk society is the breakdown of expert knowledge and the application of the method of fallibilism to the products of scientific research. Linking this to virtue ethics would, in my view, open up a very fruitful agenda for further research.

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Conclusion Let me repeat: it was a great pleasure to read the book. As I have indicated above, I was not always convinced by the arguments and the methodology and I do think several parts need further elaboration. Yet, I was always inspired by what I read. The book adds to existing scholarship, is original and thought-provoking – what more does a reader want? There is no doubt whatsoever that this work can be accepted as doctoral thesis and that the candidate can be granted the title of doctor. Wouter Werner Professor of Public International Law VU University Amsterdam

Elements of Finnish State Practice in 2009 – 2010 Virpi Laukkanen*

1. Introduction This article continues the series of reports on Finnish state practice published regularly in this Journal.1 The article covers the years 2009 – 2010. The report covers only a few selected activities in the field of public international law taking place in Finland during this time period. Treaty practice is illustrated in the form of a list of multilateral and bilateral treaties entered into force in Finland (Annexes I and II) and objections to reservations made to treaties.

2. International Humanitarian Law Year 2009 marked the 60th anniversary of the Geneva Conventions adopted in 1949. During the celebrations of this important milestone, Finland continued to underline the importance of international humanitarian law (IHL) and the Geneva Conventions as well as the need to further improve the compliance with and the implementation of the already existing international instruments in this field. The European Union adopted in August 2009 a Declaration on the Occasion of the 60th Anniversary of the Adoption of the four Geneva Conventions of 1949. In the declaration, the member states of the EU reiterated the importance of the Geneva Conventions, which are at the heart of international humanitarian law. In December 2009, the Council of the European Union also adopted Conclusions

* 1.

The report has been written in the author’s personal capacity and does not necessarily reflect the views of the Ministry for Foreign Affairs. For Finnish practice in 2007 – 2008, see Virpi Laukkanen, 19 Finnish Yearbook of International Law (2008) at 433. For Finnish practice in 2005 – 2006, see Juha Rainne, 17 Finnish Yearbook of International Law (2006) at 149-169. For 2003 – 2004, see Juha Rainne, 15 Finnish Yearbook of International Law (2004) at 435-451. For 2001-2002, see Anna Sotaniemi, 13 Finnish Yearbook of International Law (2002) at 371-379 and Anna Sotaniemi, 12 Finnish Yearbook of International Law (2001) at 461-467.

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on Promoting Compliance with IHL, in which it reaffirmed its strong support for the promotion of and protection of IHL. In July 2009, the Third Additional Protocol to the Geneva Conventions entered into force in Finland. The Third Protocol, adopted in 2005 and signed by Finland in March 2006, provides for an additional emblem for the International Red Cross and Red Crescent Movement, known as the red crystal. In 2010, a research report2 on computer network attacks and the law of armed conflict was published by the Erik Castrén Institute of International Law and Human Rights. The study was supported financially by the Ministry of Foreign Affairs. The study discusses topical questions relating to information warfare in the context of the law of armed conflict. The study was also done in order to meet the pledge made by Finland, together with the Governments of Sweden and Switzerland, in the 30th Conference of the International Red Cross and Red Crescent in Geneva in November 2007 on computer attacks with the objective to continue to promote a shared understanding on how IHL should be applied to computer network attacks during armed conflict. With other interested States, Finland has participated in the international dialogue on fundamental procedural and other guarantees of all persons detained in relation with an armed conflict or other situation of violence. To this end, Finland also took part in the 2009 conference of the so called ‘Copenhagen Process on the Handling of Detainees in International Military Operations’ initiated by Denmark in 2007.

3. International Tribunals Fighting impunity for the most serious international crimes continues to be one of Finland’s foreign policy priorities. During 2009 – 2010, Finland has continued its’ cooperation with the International Criminal Court (ICC), International Criminal Tribunal for the former Yugoslavia and the Special Court for Sierra Leone. The Agreement with the Special Court for Sierra Leone on the enforcement of sentences3 entered into force in December 2009. In 2010, an agreement with the ICC on the enforcement of sentences was signed. A Government Bill4 on the ratification of the agreement with the ICC was submitted to the Parliament in December 2010. The agreement entered into force in April 2011. Finland has also continued to provide financial assistance to various projects related to the fight against impunity, such as the Justice Rapid Response mechanism, the 2. 3. 4.

Pia Palojärvi, ‘Battle in Bits and Bytes: Computer Network Attacks and the Law of Armed Conflict’, Erik Castrén Institute Research Reports 27/2009. Agreement between the Government of Finland and the Special Court for Sierra Leone on the enforcement of sentences of the Special Court for Sierra Leone (FTS 79-80/2009). Government Bill 276/2010.

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intergovernmental stand-by facility of readily deployable criminal justice experts trained in international investigations. In June 2010 Finland participated in the Review Conference of the Rome Statute of the ICC held in Kampala, Uganda. The Conference unanimously adopted the definition of the crime of aggression and the conditions under which the Court could exercise jurisdiction with respect to the crime as an amendment to the Rome Statute bringing to a close the long-time negotiations on the crime of aggression. The Conference also adopted a resolution by which it amended article 8 of the Rome Statute in order to bring under the jurisdiction of the Court the war crime of employing certain poisonous weapons and expanding bullets, asphyxiating or poisonous gases, and all analogous liquids, materials and devices, when committed in armed conflicts not of an international character. In addition one of the key issues of the Conference was stocktaking of the international criminal justice system. The ICC stocktaking items were the impact of the Rome Statute system on victims and affected communities, the ICC complementarity principle, cooperation with the ICC and peace and justice. Finland, together with Chile, acted as focal points appointed by the Bureau of the Assembly of States Parties to the Rome Statute with a view to prepare the topic relating to victims and affected communities for the Review Conference. Finland has also on other occasions drawn attention to the situation and rights of victims of the most serious international crimes. In December 2010, the Ministry for Foreign Affairs arranged a seminar entitled ‘Justice for Victims of International Crimes and their Communities’ in Helsinki with the purpose of raising awareness of the activities of the ICC Trust Fund for Victims and the rights of victims of international crimes. Finland has continued to financially support the Trust Fund for Victims devoted to assisting the most vulnerable victims of genocide, crimes against humanity and war crimes. Finland is currently one of the largest financial contributors for the activities of the Trust Fund. In 2009 Ms. Elisabeth Rehn of Finland was elected to the Board of Directors of the Trust Fund. In 2010 the Board of Directors unanimously nominated Ms Rehn as the Chairperson of the Board of Directors. In December 2010 the Erik Castrén Institute of International Law and Human Rights of the University of Helsinki organized an international conference titled ‘the International Criminal Court and the Responsibility to Protect - Synergies and Tensions’. The main purpose of the Conference was to examine what lessons could be learned from the so far functioning of the ICC and how the project of responsibility to protect should be understood both in itself and in relation to the ICC. Another objective of the conference was to provide critical and intellectually rigorous guidance for policy-makers working in the two fields. The speakers included academics, policymakers and practitioners, such as Mr. Erkki Kourula, Judge of the ICC, Mr. Edward Luck, UN Secretary-General’s Special

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Advisor on Responsibility to Protect and Mr. Pekka Haavisto, Member of the Finnish Parliament and Special representative of the Foreign Minister of Finland in Sudan and Somalia. The conference was organized with the sponsorship of the Finnish Ministry for Foreign Affairs. After filing a written statement in April 2009, Finland participated in December 2009 in the oral hearing of the International Court of Justice (ICJ) in a case where the Court had been requested an advisory opinion in the case concerning Accordance with international law of the unilateral declaration of independence in respect of Kosovo. The Court was addressed on behalf of Finland by Ms. Päivi Kaukoranta, Director General of the Legal Service of the Ministry for Foreign Affairs and Professor Martti Koskenniemi. In its oral statement Finland argued that under the prevailing circumstances the people of Kosovo were entitled to constitute themselves as a State. Finland welcomed the ICJ’s advisory opinion of 22 July 2010, where the ICJ confirmed that the Kosovo’s declaration of independence in 2008 did not violate international law.

4. The Sixth Committee of the United Nations General Assembly Finland continued to actively participate in the deliberations of the Sixth Committee of the United Nations General Assembly on the items on its agenda. The Committee considered items such as the Criminal accountability of United Nations officials and experts on mission, Measures to eliminate international terrorism, Diplomatic protection and the Rule of law at the national and international levels. An item entitled ‘The scope and application of the principle of universal jurisdiction’ was added to the agenda of the Sixth Committee in 2009. In her national statement during the Sixth Committee debate in 2009 Finland emphasized that the principle of universal jurisdiction provides an essential tool in the fight against impunity for the most serious crimes of international concern and that the scope or application of the principle must not be limited in a way that would suggest otherwise. For the further consideration of this topic, a working group of the Sixth Committee was decided to be established at the sixty-sixth session in 2011. The Sixth Committee at its sixty-fifth session in 2010 also adopted a resolution coordinated by Finland on the Consideration of effective measures to enhance the protection, security and safety of diplomatic and consular missions and representatives. The resolution condemns the continuing acts of violence against the security and safety of diplomatic and consular missions and their representatives and urges States to respect their obligations under international law.

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5. International Cooperation to Combat Terrorism 5.1. Cooperation in the Framework of International Organizations Finland condemns terrorism in all its forms and recognizes international terrorism as an important security threat. Finland, however, continues to hold the view that any measure against terrorism, whether international or national, must be compatible with human rights law, international humanitarian law and refugee law in order to be effective and legitimate. In September 2009, a working group with the task of formulating Finland’s National Counter-Terrorism Strategy was set up by the Minister of the Interior. The strategy was, among other things, designed to define and clarify the roles and responsibilities of the various authorities involved in the field of counterterrorism, and the possible coordination of such action as might prove necessary. Finland’s National Counter Terrorism Strategy was published in June 20105. The strategy provides an overview of the terrorism situation in Finland and Europe, existing legislation and arrangements that have been made by the authorities. Building on the current situation picture, the strategy then goes on to propose concrete and timetabled measures to step up the work on combating terrorism. International Convention for the Suppression of Acts of Nuclear Terrorism entered into force in Finland on 12 February 20096. The main objective of the Convention is to prevent and suppress acts of nuclear terrorism. The provisions of the Convention were implemented by amending the relevant provisions of the Criminal Code and the Nuclear Energy Act (990/1987). The EU Member States and the US adopted a joint Declaration on CounterTerrorism in June 2010.In the declaration the EU and the US acknowledged that terrorism continues to be one of the most serious threats to international peace and security and reaffirmed that respect for the rule of law and international law, including human rights law, international humanitarian law, and refugee law, are fundamental in the national and international efforts in the fight against terrorism and are at the basis of their shared action. The Council of Europe Committee of Experts on Counter-Terrorism (CODEXTER) has continued its efforts in the field of counter-terrorism. CODEXTER has considered the more effective use and implementation of the Council of Europe counter terrorism conventions and in particular the Council of Europe Convention on the Prevention of Terrorism. CODEXTER has, in accordance with the decision of the Ministers’ Deputies discussed a possible institutional framework, working methods and procedures to carry out this task. Finland has been an active participant in these discussions. 5. 6.

‘National Counter-Terrorism Strategy’, Ministry of the Interior Publication 24/2010 of 2 June 2010. Government Bill 80/2008, FTS 5-6/2009.

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Under the auspices of the International Civil Aviation Organization (ICAO), a diplomatic conference was held in Beijing in September 2010 to adopt two international air law instruments for the suppression of unlawful acts relating to civil aviation. Finland was among the 77 states represented in the Conference. The two instruments adopted by the Diplomatic Conference on Aviation Security are the Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation (Beijing Convention) and the Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft (Beijing Protocol). In addition to the air law instruments already in force, the treaties adopted in Beijing criminalize the act of using civil aircraft as a weapon, and of using dangerous materials to attack aircraft or other targets on the ground. The unlawful transport of biological, chemical and nuclear weapons and their related material became punishable under the treaties. Finland strongly supported the inclusion of the new criminalizations in the air law instruments as these further strengthen the counter-terrorism regime in the field of civil aviation.

5.2. Sanctions Combating Terrorism Due process concerns relating to counter-terrorism sanctions have continued to be high on the agenda of the UN and EU. Following the judgement of the European Court of Justice of 3 September 2008 in the case Kadi and Al Barakaat International Foundation v. Council7, a number of EU member states such as Finland, continued to call for improved due process guarantees at the UN level for individuals and entities subject to restrictive measures. As a result, the United Nations Security Council adopted resolution 1904 (2009) in December 2009. From the viewpoint of due process guarantees, the most significant step introduced by the resolution was the decision to establish the Office of the Ombudsperson to assist the Al Qaida Committee (1267 Committee) when considering de-listing requests. In June 2010 Judge Kimberly Prost of Canada was appointed as Ombudsperson. In the the EU, following the Kadi judgement of 2008 annulling the EC Regulation implementing the UN resolution 1267 (1999) listing Kadi, Kadi was relisted by the Commission Regulation (EC) No 1190/2008 of 28 November 20088 following the newly established procedures in place. Kadi challenged this new listing decision before the General Court of the EU. The General Court in its’ judgement of 30 September 20109 annulled the new listing decision of the 7. 8.

9.

Cases C-402/05 and C-415/05. Commission Regulation (EC) No 1190/2008 of 28 November 2008 amending for the 101st time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban, OJ 2008 L 322, at 25. Case T-85/09.

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Commission stating, inter alia, that the contested regulation was adopted according to a procedure in which the applicant’s rights of defence were not observed, which had the further consequence that the principle of effective judicial protection had been infringed. An appeal by the Commission is currently pending at the European Court of Justice10. Finland is closely following the developments in this case and is actively working together with other interested states in order to find a satisfying balance between ensuring adequate due process guarantees and the effective implementation of counter-terrorism sanctions regime.

6. International Financial Sanctions As in the previous reports published, the notifications informing of the entry into force of the EC Sanctions regulations are listed below. Applicable penal provisions relating to violations of sanctions regulations are referred to in Section 2a of the Sanctions Act (659/1967). In 2009, the Ministry for Foreign Affairs issued a notification informing of the entry into force of the Council Regulation (EU) No 1284/2009 of 22 December 2009 imposing certain specific restrictive measures in respect of the Republic of Guinea11. In 2010, the Ministry for Foreign Affairs issued three notifications informing of the entry into force of the following EU Regulations: Council Regulation (EU) No 356/2010 of 26 April 2010 imposing certain specific restrictive measures directed against certain natural or legal persons, entities or bodies, in view of the situation in Somalia12, Council Regulation (EU) No 667/2010 of 26 July 2010 concerning certain restrictive measures in respect of Eritrea13 and Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/200714. In December 2009, the Ministry for Foreign Affairs in cooperation with the Confederation of Finnish Industries (EK) arranged a seminar for Finnish companies on financial sanctions and export controls regime. The main focus of the seminar was on the implementation of financial sanctions against Iran.

10. 11. 12. 13. 14.

C-584/10. OJ 2009 No L 346, 23 December 2009, at 26-38. OJ 2010 No L 105, 27 April 2010, at 1-9. OJ 2010 No. L 195, 27 July 2010, at 16-24. OJ 2010 No L 281, 27 October 2010, at 1-74.

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7. The European Union Naval Force Somalia - Operation Atalanta The European Union Naval Force Somalia (EUNAVFOR) – Operation Atalanta was launched in December 2008 off the Somali Coast with the purpose of supporting the UN Security Council Resolutions 1814 (2008), 1816 (2008), 1838 (2008), 1846 (2008) and 1851 (2008) and resolution 1897 (2009). The mandate of the Atalanta operation is to protect World Food Programme (WFP) and other shipments in the area. The operation also contributes to help deter, prevent and repress acts of piracy and armed robbery off the Somali coast. The EU operation is a part of the international community’s comprehensive efforts to stabilise the situation in Somalia. In 2010, a decision on Finland’s participation in the operation through the deployment of a naval vessel was made. A Government Bill on the Finland’s participation in the Operation Atalanta was submitted to the Parliament in September 201015. The Government Bill included a proposal for an Act on the Handling of Criminal Matters concerning Persons Suspected of Piracy or Armed Robbery in connection with EUNAVFOR Atalanta, the European Union Military Crisis Management Operation (1034/2010). The Act applies to the procedure to be followed in situations where during the operation a person apprehended as suspected of piracy or armed robbery is kept on board a vessel under Finnish flag, or in other cases where it is inquired whether Finland will exercise criminal jurisdiction in the matter. The Parliament adopted the Act in November 2010. In early 2011, Finland participated in the operation with minelayer Pohjanmaa and a total of 120 soldiers.

8. Treaty Relations 8.1. Treaties Brought into Force in Finland The compilation of treaties, which entered into force in Finland in 2009 and 2010, is included in the Annexes to this report.

8.2. Objections to Reservations Finland monitors actively reservations made to international human rights conventions as well as other international treaties. The Government of Finland has a well-established practice in objecting to reservations deemed to be incompatible with the objective and purpose of a treaty.

15. Government Bill 117/2010.

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On 5 February 2010 Finland objected16 to the reservation made by the United States of America upon consenting to be bound by Protocol III of the Convention on Prohibitions of Restrictions on the use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to have Indiscriminate Effects (Article 2 (2) and (3)). ‘The Government of Finland has carefully examined the reservation and the text of Article 2, paragraphs 2 and 3, and wishes to express its concerns with respect to the reservation. Under Article 2, paragraph 2, it is prohibited in all circumstances to make any military objective located within a concentration of civilians the object of attack by air-delivered incendiary weapons. Furthermore, under Article 2, paragraph 3, it is further prohibited to make any military objective located within a concentration of civilians the object of attack by means of incendiary weapons other than air-delivered incendiary weapons, except when such military objective is clearly separated from the concentration of civilians and all feasible precautions are taken with a view to limiting the incendiary effects to the military objective and to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects. Article 2, paragraph 2, allows no exceptions concerning the use of air-delivered incendiary weapons. Therefore, the reservation made by the United States of America in respect of that provision appears to undermine the object and purpose of Protocol III. Furthermore, Article 2, paragraph 3, provides for two conditions for the use of incendiary weapons other than air-delivered ones, both of which have to be met. While noting that the reservation made by the United States of America respects the condition of all feasible precautions, the Government of Finland considers that it fails to take account of the condition that the military objective must be clearly separated from the concentration of civilians. Article 2 does not provide for any exception to this condition. Therefore, the reservation appears to run counter to the object and purpose of the Protocol also in respect of paragraph 3 of Article 2. Protocol III does not expressly prohibit reservations. However, a reservation should not undermine the object and purpose of the treaty in question. The reservation made by the United States of America appears to undermine the core purpose of Protocol III, that is the protection of civilians. The Government of Finland has carefully noted the further explanations submitted by the United States. Finland is not, however, fully satisfied that the reservation in light of the explanations can be interpreted as a narrow reservation consistent with the underlying key principles of international humanitarian law, and with the object and purpose of the Protocol. The Government of Finland therefore objects to the said reservation and considers that it is without legal effect between the United States of America and Finland. 16. Secretary-General’s Depositary Notification C.N.108.2010.TREATIES-17 of 24 February 2010.

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This objection shall not preclude the entry into force of Protocol III between the United States of America and Finland.’

On 24 April 2010 Finland objected17 to the reservation made by Qatar upon accession to the Convention on the Elimination of All Forms of Discrimination Against Women (Articles 9(2), 15(1), 15(4), 16(1)(a) and (c) as well as Article 16(1)(f )). ‘The Government of Finland has carefully examined the reservation made by Qatar upon accession to the Convention on the Elimination of All Forms of Discrimination against Women, done at New York on 18 December 1979. The Government of Finland recalls that by acceding to the Convention on the Elimination of All Forms of Discrimination against Women, a State commits itself to adopt the measures required for the elimination of discrimination against women, in all its forms and manifestations. This includes taking appropriate measures, including legislation, to modify or abolish i.e. customs and practices which constitute discrimination against women. The Government of Finland further recalls that under Article 28 of the Convention, reservations incompatible with the object and purpose of the Convention are not permitted, which is a general principle of treaty law codified in Article 19 (c) of the Vienna Convention on the Law of Treaties. The Government of Finland notes that a reservation which consists of a general reference to religious or other national law, without specifying its contents, does not clearly define to other States Parties to the Convention the extent to which the reserving State commits itself to the Convention and creates serious doubts as to the commitment of the reserving State to fulfil its obligations under the Convention. Such reservations are, furthermore, subject to the general principle of treaty interpretation according to which a party may not invoke the provisions of domestic law as justification for a failure to perform its treaty obligations. The Government of Finland finds that the reservations made by Qatar to Articles 9 (2), 15 (1), 15 (4), 16 (1) (a) and (c) as well as Article 16 (1) (f ) of the Convention address some of the most essential provisions and aim at excluding the obligations to eliminate discrimination against women under those provisions. The Government considers that these reservations in practice lead to discrimination against women and finds them manifestly incompatible with the object and purpose of the Convention. The Government of Finland therefore objects to the said reservations made by Qatar. This objection shall not preclude the entry into force of the Convention between Qatar and Finland.’

On 24 September 2010 Finland objected18 to the reservation made by Brazil 17. Secretary-General’s Depositary Notification C.N.248.2010.TREATIES-10 of 5 May 2010. 18. Secretary-General’s Depositary Notification C.N. 694.2010.TREATIES-1 of 9 November

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upon accession to the Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty (Article 2). ‘The Government of Finland welcomes the accession of Brazil to the Second Optional Protocol to the International Covenant on Civil and Political Rights, and has taken note of the reservation made by Brazil to Article 2 thereof upon accession. The Government of Finland recalls that it is the object and purpose of the Second Optional Protocol to abolish the death penalty in all circumstances and reservations are, as a main rule, not admissible. This object of aiming at the complete abolition of the death penalty enjoys the full support of Finland. However, the Government observes that, in the light of the wording of Article 2(1), a reservation to the Protocol is allowed to the extent it concerns the application of the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime. The acceptability of such a reservation requires that the State Party making the reservation communicates, at the time of ratification or accession, to the Secretary-General of the United Nations the relevant provisions of its national legislation applicable during wartime. Accordingly, the Government of Finland would find the reservation made by Brazil acceptable, provided it meets the requirements set out in Article 2(1) and (2). According to information available to the Government, the applicable provisions of the national legislation of Brazil were not communicated to the Secretary-General at the time of accession. Therefore, the Government of Finland objects to the reservation. Should, to the contrary, Brazil have communicated the provisions to the Secretary-General pursuant to Article 2(2), this objection may be considered null and void. This objection shall not preclude the entry into force of the Protocol between Brazil and Finland. The Protocol will thus become operative between the two states without Brazil benefiting from its reservation.’

On 5 October 2010 Finland objected19 to the reservation made by the Lao People’s Democratic Republic upon ratification of the International Covenant on Civil and Political Rights (Article 22). ‘The Government of Finland welcomes the ratification by the Lao People’s Democratic Republic of the International Covenant on Civil and Political Rights. Finland has taken note of the reservation made by the Lao People’s Democratic Republic to Article 22 thereof upon ratification. The Government of Finland notes that Article 22(2) provides that States Parties may, under certain specific circumstances and for certain specific purposes, restrict the right protected under Article 22(1). The Government of Finland is of the view that the reservation made by the Lao People’s Democratic Republic seeks to limit the obligation of the Lao People’s 2010. 19. Secretary-General’s Depositary Notification C.N.650.2010.TREATIES-25 of 20 October 2010.

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Democratic Republic not to restrict the freedom of association to an extent which is incompatible with Article 22(2). The reservation would therefore restrict one of the essential obligations of the Lao People’s Democratic Republic under the Covenant and raises serious doubts as to the commitment of the Lao People’s Democratic Republic to the object and purpose of the Covenant. It is in the common interest of States that treaties they have chosen to become parties to are respected as to their object and purpose by all parties, and that States are prepared to undertake any legislative changes necessary to comply with their obligations under such treaties. Furthermore, according to the Vienna Convention on the Law of Treaties of 23 May 1969, and according to well established customary international law, a reservation contrary to the object and purpose of the treaty shall not be permitted. The Government of Finland therefore objects to the reservation made by the Government of the Lao People’s Democratic Republic in respect of Article 22 of the International Covenant on Civil and Political Rights. This objection shall not preclude the entry into force of the Covenant between the Lao People’s Democratic Republic and Finland. The Covenant will thus become operative between the two states without the Lao People’s Democratic Republic benefiting from its reservation.’

ANNEX I: Treaties which entered into force in Finland in 201020 Multilateral Treaties • Convention on centralised customs clearance, concerning the allocation of national collection costs retained when traditional own resources are made available to the EU budget, 10 March 2009 (FTS 106-107/2010) 21 • International Convention on the Control of Harmful Antifouling Systems on Ships, 5 October 2001 (FTS 92-93/2010) • Partnership Agreement between the East African Community and the Government of Sweden (through Swedish International Development Cooperation Agency SIDA), the Government of France, the Government of Norway, the World Bank and East African Development Bank on the promotion of sustainable development in the Lake Victoria Basin, 24 April 2001 (FTS 89/2010) 20. The lists in the appendixes include the conventions and agreements published in the Finnish Treaty Series (FTS). Information on the agreements not published in the FTS is to be found in the FTS in the form of ‘Notifications of the Ministry for Foreign Affairs’. 21. The date indicates the time of signature or adoption of the agreement and the number in brackets refers to the numbering of the FTS.

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• EFSF Framework Agreement between Kingdom of Belgium, Federal Republic of Germany, Ireland, Kingdom of Spain, French Republic, Italian Republic, Republic of Cyprus, Grand Duchy of Luxembourg, Republic of Malta, Kingdom of the Netherlands, Republic of Austria, Portuguese Republic, Republic of Slovenia, Slovak Republic, Republic of Finland, Hellenic Republic and European Financial Stability Facility, 10 June 2010 (Luxemburg (FTS 80-81/2010) • Agreement between the Ministry of Defence of the Republic of Finland acting on behalf of the Government of the Republic of Finland and the Federal Ministry of Defense of the Federal Republic of Germany and the Department of Defense of the United States of America concerning surface combatant aluminium structure design, 7 October 2009, 1 October 2009, 28 October 2009 (FTS 55-56/2010) • Stabilisation and Association Agreement between the European Communities and their Member States of the one part, and the Republic of Montenegro, of the other part, 15 October 2007 (FTS 36-37/2010) • The International COSPAS-SARSAT Programme Agreement, 1 July 1988 (FTS 26-27/2010) • Convention for the protection of human rights and dignity of the human being with regard to the application of biology and medicine; Convention on Human Rights and Biomedicine, 4 April 1997 (FTS 23-24/2010) • WIPO Performances and Phonograms Treaty, 20 December 1996 (FTS 1819/2010) • WIPO Copyright Treaty, 20 December 1996 (FTS 16-17/2010) • Partnership and Cooperation Agreement establishing a partnership between the European Communities and their Member States, of the one part, and the Republic of Tajikistan, of the other part, 11 October 2004 (FTS 14-15/2010) • Agreement on mutual legal assistance between the European Union and the Government of the United States of America, 25 June 2003 (FTS 5-6/2010) • Agreement on extradition between the European Union and the Government of the United States of America, 25 June 2003 (FTS 1-2/2010)

Bilateral Treaties • Protocol between the Republic of Finland and the Swiss Confederation amending the agreement for the avoidance of double taxation with respect to taxes on income and on capital and the protocol signed at Helsinki on December 16 1991 as amended by the protocol signed at Helsinki on April 19 2006, 22 September 2009 (FTS 121-122/2010) • Agreement between the Government of the Republic of Finland and the Government of the Principality of Monaco concerning information on tax matters, 23 June 2010 (FTS 113-114/2010) • Agreement between the Government of the Republic of Finland and the Government of the People´s Republic of China for the avoidance of double

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taxation and the prevention of fiscal evasion with respect to taxes on income, 25 May 2010 (FTS 103-104/2010) Agreement between the Government of the Republic of Finland and the Government of the Republic of Panama on the promotion and protection of investments, 19 February 2009 (FTS 101-102/2010) Agreement on amending the agreement between the Ministry of Defence of Finland acting on behalf of the Government of the Republic of Finland and the Department of Defence of the United States of America concerning exchange of research and development information, 25 May 2010, 7 May 2010) (FTS 94-95/2010) Agreement between the Government of the Republic of Finland and the Government of the Kingdom of Sweden on boundary rivers, 11 November 2009 (FTS 90-91/2010)22 Agreement between the Republic of Finland and the Commonwealth of The Bahamas concerning information on tax matters, 10 March 2010 (FTS 8687/2010) Agreement between the Government of the Republic of Finland and the Government of the Republic of Kazakhstan for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, 24 March 2009 (FTS 84-85/2010) Agreement between the Government of the Republic of Finland and the Government of the Republic of Latvia on the reciprocal holding of stocks of crude oil and petroleum products, 30 October 2009 (FTS 78-79/2010) Agreement on Environmental Management Support Project in Lao People’s Democratic Republic, 19 May 2010 (FTS 76/2010) Agreement between the Government of the Republic of Finland and the Swiss Confederation on readmission of persons residing without authorisation, 30 March 2009 (FTS 65-66/2010) Agreement between the Government of the Republic of Finland and the Government of the Republic of San Marino concerning information on tax matters, 12 January 2010 (FTS 59-60/2010) Agreement between the Government of the Republic of Finland and the Government of the Republic of India for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, 15 January 2010 (FTS 57-58/2010) Agreement between the Government of the Republic of Finland and Montenegro on the promotion and protection of investments, 14 November 2008 (FTS 52-53/2010) Agreement between the Government of the Republic of Finland and the

22. Unofficial translation by the author.

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Government of Gibraltar concerning Information on tax matters, 20 October 2009 (FTS 48-49/2010) Agreement between the Government of the Republic of Finland and the Palestinian Authority on the co-operation in the construction and rehabilitation of water infrastructure networks in the northwest villages of Jerusalem, 8 April 2010 (FTS 47/2010) Agreement between the Government of the Republic of Finland and the Kingdom of Spain on the mutual protection of classified information, 9 June 2009 (FTS 38-39/2010) Agreement between the Government of the Republic of Finland and the Government of the Kingdom of Sweden on the amendments to the common frontier between the two countries as agreed in the demarcation proceedings of 2006, 20 March 2007 (FTS 35/2010)23 Agreement between the Government of the Republic of Finland and the Government of the Cayman Islands concerning information on tax matters, agreement on the access to mutual agreement procedures in connection with the adjustment of profits of associated enterprises, agreement for the avoidance of double taxation on individuals and agreement for the avoidance of double taxation with respect to enterprises operating ships or aircraft in international traffic, 17 June 2009 (FTS 33-34/2010) Agreement between the Government of the Republic of Finland and the Government of Laos on strengthening national geographic services in Lao PDR, 3 February 2010 (FTS 32/2010) Convention between the Government of the Republic of Finland and the Government of the Republic of Poland for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, 8 June 2009 (FTS 20-21/2010) Agreement between the Government of the Republic of Finland and the Palestinian Authority on the Finland’s financial contribution to the Palestinian Authority through the ‘Mecanisme Palestino Europeen de Gestion et D’Aide Socio-Economique’ (PEGASE), Programme ‘Supporting Palestinian Public Administration and Services’, 31 December 2009 (FTS 11/2010) Treaty between the Government of the Republic of Finland and the Government of the United States of America on certain aspects of mutual legal assistance in criminal matters, 16 December 2004 (FTS 7-8/2010)

23. Unofficial translation by the author.

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Agreements with International Organisations • Agreement between the Government of the Republic of Finland and the Secretariat of the Southern African Development Community on the co-operation in the technical support programme on renewable energy and energy efficiency in SADC, 27 September 2009 (FTS 96/2010)

ANNEX II: Treaties which entered into force in Finland in 2009 Multilateral Treaties • Memorandum of Understanding among the Department of Defence of Australia and the Ministry of Defence of Finland on behalf of the Government of Finland and the Minister of Defence of the French Republic and the Federal Ministry of Defense of the Federal Republic of Germany and the Ministry of Defense of the Italian Republic and Ministry of Defense of the Kingdom of Spain and the Swedish Armed Forces and the Secretary of State for Defence of the United Kingdom of Great Britain and Northern Ireland and the Department of Defense of the United States of America concerning the Coalition Wideband Networking Waveform (COALWNW), 29 June 2009 (FTS 82-83/2009) • Agreement between the European Union and Australia on the processing and transfer of European Union-sourced passenger name record (PNR) data by air carriers to the Australian Customs Service 30 June 2008 (FTS 75-76/2009)24 • Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, 13 December 2007 (FTS 66-67/2009) • Administration agreement between the Government of the Republic of Finland as Contributor and Nordic Environment Finance Corporation and Nordic Investment Bank as Fund Managers on Fund for Technical Assistance for Institutional Support and Project Preparation for the Baltic Sea Action Plan, 21 September 2009 (FTS 55/2009) • Protocol between the Governments of Denmark, Finland, Iceland, Norway and Sweden concerning the archives of the Sri Lanka Monitoring Mission (the SLMM), 12 December 2008 (FTS 50/2009) • Agreement constituting the implementation rules of the EU-Africa infrastructure trust fund, 23 April 2007 (FTS 44/2009) • Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the adoption of an additional distinctive emblem (Protocol III), 8 December 2005 (FTS 32-33/2009) 24. the Agreement is applied on a provisional basis as of 30 June 2008.

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• Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Albania, of the other part, 12 June 2006 (FTS 16-17/2009) • International Convention for the Suppression of Acts of Nuclear Terrorism, 13 April 2005 (FTS 5-6/2009) • International Convention on Civil Liability for Bunker Oil Pollution Damage, 23 March 2001 (FTS 3-4/2009) • Convention No 187 concerning Promotional Framework for Occupational Safety and Health; Recommendation No 197 concerning the Promotional Framework for Occupational Safety and Health, 15 June 2006 (FTS 121122/2008)

Bilateral Treaties • Agreement and Protocol between the Government of the Republic of Finland and the Government of Bermuda on the exchange of information with respect to taxes. Agreement for the avoidance of double taxation of individuals. Agreement for the avoidance of double taxation with respect to enterprises operating ships or aircraft in international traffic. Agreement on the access to mutual agreement procedures in connection with the adjustment of profits of associated enterprises, 16 April 2009 (FTS 86-87/2009) • Agreement between the Government of the Republic of Finland and the Government of Jersey for the exchange of information relating to tax matters; Agreement on the access to mutual agreement procedures in connection with the adjustment of profits of associated enterprises; Agreement for the avoidance of double taxation with respect to enterprises operating ships or aircraft in international traffic; Agreement for the avoidance of double taxation on individuals, 28 October 2008 (FTS 77-78/2009) • Agreement between the Government of the Republic of Finland and the Czech Republic on the exchange and mutual protection of classified information, 26 May 2008 (FTS 53-54/2009) • Memorandum of Understanding between the Government of the Republic of Finland and the Government of the United States of America concerning reciprocal defense procurement, 5 August 2008; 13 June 2008 (FTS 51-52/2009) • Agreement between the Government of the Republic of Finland and the Government of the Republic of Uzbekistan on mutual assistance in customs matters, 28 March 2008 (FTS 45-46/2009) • Agreement between the Government of the Republic of Finland and the Government of Lao PDR on the co-operation in the renewable energy strategy in Lao PDR; Energy Strategy Development and Capacity Building, 9 June 2009; 16 June 2009 (FTS 41/2009)

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• Agreement between the Government of the Republic of Finland and the Government of Australia on social security, 10 September 2008 (FTS 35-36/2009) • Agreement between the Government of the Republic of Finland and the Government of the Republic of Liberia in respect of the forgiveness of the development credit, 3 June 2009 (FTS 34/2009) • Agreement between the Government of the Republic of Finland and the Government of the Socialist Republic of Vietnam on the promotion and protection of investments, 21 February 2008 (FTS 28-29/2009) • Agreement between the Government of the Republic of Finland and the Government of the Republic of Slovenia on the exchange and mutual protection of classified information, 6 May 2008 (FTS 22-23/2009) • Agreements between the Government of the Republic of Finland and the States of Guernsey on the exchange of information relating to tax matters; Agreement between the Government of the Republic of Finland and the States of Guernsey on the access to mutual agreement procedures in connection with the adjustment of profits of associated enterprises; Agreement between the Government of the Republic of Finland and the States of Guernsey for the avoidance of double taxation with respect to enterprises operating ships or aircraft in international traffic; Agreement between the Government of the Republic of Finland and the States of Guernsey for the avoidance of double taxation on individuals, 28 October 2008 (FTS 20-21/2009) • Agreement between the Government of the Republic of Finland and the Government of France concerning the status of the Finnish personnel assigned to the Operation Headquarters of the Operation EUFOR Chad/RCA and the settlement of claims, 10 March 2009 (FTS 13/2009) • Agreement between the Government of the Republic of Finland and the Palestinian Authority on Finland’s support towards the funding of the Mecanisme Palestino Europeen de Gestion et d’Aide Socio-Economique (PEGASE) programme ‘Supporting Palestinian Public Administration and Services’, 22 December 2008 (FTS 1/2009) • Agreement between the Government of the Republic of Finland and the Hong Kong Special Administrative Region of the People’s Republic of China for the avoidance of double taxation with respect to taxes on income from aircraft operation, 19 November 2007 (FTS 124-125/2008) • Agreement between the Government of the Republic of Finland and the Government of the Republic of Bulgaria on mutual protection and exchange of classified information, 16 April 2008 (FTS 116-117/2008)

Elements of Finnish State Practice in 2009 – 2010

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Agreements with International Organisations • Agreement between the Government of the Republic of Finland and the Special Court for Sierra Leone on the enforcement of sentences of the Special Court for Sierra Leone, 29 June 2009 (FTS 79-80/2009) • Memorandum of Understanding Contributing Resources to the United Nations Mission in Central African Republic and Chad (MINURCAT), 27 May 2009 (FTS 62-63/2009) • Agreement between the Government of the Republic of Finland and the Southern African Development Community on the co-operation in the inception phase of a regional meteorology project in Southern Africa, 22 October 2009 (FTS 57/2009) • Agreement between the Government of the Republic of Finland and the African Union on Finland’s contribution to the African Union Mediation Support Capacity Project, 25 September 2009; 8 October 2009 (FTS 56/2009) • Arrears Administration Agreement between the Government of the Republic of Finland and the European Investment Bank governing procedures for payments and reimbursements under Member States Guarantees in favour of the European Investment Bank, 30 July 2008;31 March 2009 (FTS 49/2009) • Guarantee Agreement between the Government of the Republic of Finland and the European Investment Bank concerning loans to be made by the European Investment Bank in favour of investment projects in the African, Caribbean and Pacific States and in the Overseas Countries and Territories, 30 July 2008; 31 March 2009 (FTS 48/2009)

Ius Gentium Association Ius Gentium International Law Association (est. 1983) provides a lively, active and easily accessible forum for all interested in international law and related issues. Ius Gentium organizes events and encourages its members to take part in international legal discussion and activities, in studying, teaching and researching international law. The Association is an active publisher, the main publication being the Finnish Yearbook of International Law by Brill/Martinus Nijhoff Publishers. The Association conducts seminars and discussion groups concentrating on questions of recent interest in international law and related fields. Through its members and activities, Ius Gentium converses with several international legal scholars, research institutes and legal bodies. The members represent a great variety of professions; among them there are diplomats, university professors, lawyers, researchers and students. The members share an interest in global matters in general and in international law in particular. The majority of the members are Finnish citizens. Although most of the members have a legal background, other academic fields, in particular political and social sciences are also represented. Should you have any questions concerning the Ius Gentium Association, please contact the Secretary of the Association via the Erik Castrén Institute of International Law and Human Rights, P.O. Box 4 (Yliopistonkatu 3), FIN-00014 University of Helsinki, Finland.