Finnish Yearbook of International Law - Volume 22, 2011 9781474200134, 9781849463492

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Introductory Note Paavo Kotiaho* In its previous 21st volume the Finnish Yearbook of International Law had the occasion to introduce a new rubric to its pages, the Finnish Yearbook of International Law Debate. The goal of this new section is to encourage scholars who find themselves working in common areas of international legal scholarship to share their thoughts with the academic community at large, in an effort to promote not only new thinking through consensus, but through contention and the exchange of views. For as Christopher Caudwell quite rightly has pointed out ‘knowledge and effort are only possible in co-operation, and both are made necessary by man’s struggles to be freer.’1 Continuing this task that began with the exchange between Professors Teubner and Negri are two scholars from London, United Kingdom, who epitomise the spirit of not only academic exchange, but also the quest for new knowledge referred to by Caudwell: Professor Bill Bowring of Birkbeck College and Mr Robert Knox of the London School of Economics. On this occasion2, the terms of the debate between Bowring and Knox focus on questions touching on the trajectory of critical international legal scholarship and its relationship to practice. Bowring, a practicing barrister and member of the Haldane Society of Socialist lawyers, delivers the readership a sharp reminder that although contemporary critical legal scholarship seems to have lost many of its historical links to legal and political practice, this has not always been so. Indeed, Bowring argues that the task of those whom he terms ‘radical lawyers’ today is to employ both their academic and practical legal competence and skills for the benefit of collective resistance and struggle. Knox on the other hand counters that such a division between academic and practical legal tasks simply does not hold water when talk* 1. 2.

Executive Editor, Finnish Yearbook of International law & Research Fellow, the Erik Castrén Institute of International Law and Human Rights, University of Helsinki. Christopher Caudwell, ‘Liberty’, in Christopher Caudwell, Studies in a Dying Culture (New York: Monthly Review Press, 1971) at 216. For this is not the first exchange of thoughts that has taken place between the authors. For the previous see, Robert Knox, ‘Review Article: The Degradation of the International Legal Order? The Rehabilitation of Law and the Possibility of Politics, Bill Bowring, Routledge-Cavendish, 2008,’ 18 Historical Materialism (2010) 193-207. Bill Bowring, ‘Marx, Lenin and Pashukanis on Self-Determination: Response ot Robert Knox’, 19 Historical Materialism (2011) 113-127.

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ing of progressive lawyers today and historically. Instead, Knox wonders whether the argument and dichotomy that is erected by Bowring does not do more to confine legal scholars to the very armchairs he berates. Finally, the background for this debate is both significant and telling in equal measure. As Bowring mentions, his contribution begun its life as a response to a conference organised in London in May 2011 called Towards a Radical International Law. Yet what is less known is that Rob Knox was one of the prime movers and organisers of the very same conference. This brings us back to the spirit of academic debate. For, if paraphrasing Lenin we could argue that whereas formal academic freedom is the freedom to debate within the coordinates of already existing academic discourse and intellectual projects, then actual academic freedom consists of interventions and inquiries that seek to undermine and go to the heart of these very discourses and projects.3 In this period of the increased commercial instrumentialisation of research resulting in barren and uninspiring debate, it is a true pleasure to publish a debate that still holds on to actual academic freedom, privileging the co-operative production of knowledge in its common goal of contributing to ‘man’s struggle to be freer.’4

3. 4.

For this point see Slavoj Zizek, ’A Plea for Leninist Intolerance’, 28 Critical Inquiry (2002) 542-566, at 544. Caudwell, ’Liberty’, supra note 1.

What is Radical in “Radical International Law”? Bill Bowring*

1. Introduction There are radical, or critical, legal scholars, legal theorists whose aim, using a variety of approaches, is to problematise and unsettle the law. There are also radical, or critical, legal practitioners, whose aim is to place their skills at the service of protagonists in the class struggle. But, far from complementing or nurturing each other, the scholars and the practitioners seem to inhabit completely separate worlds. This article began life as a response to the call for papers for the international Workshop ‘Towards a Radical International Law’, held at the London School of Economics in May 2011. The call for papers1 started with a bold declaration: International law is a prominent site for the investiture of hope in the face of global insecurities. Yet, as inequality deepens, violence remains rampant, and the earth’s resources become exhausted, the idioms in which that hope is typically expressed – human rights, development, international crime, and so on – are revealing their complicities and limitations. Some radical rethinking of international law seems urgently needed.

In this article I explore some answers to the question whether there could or ought to be a radical international law, or even, more modestly, a radical approach to international law. Paavo Kotiaho has referred to ‘the left wing international law project’.2 Is there such a project? My own answer to the question is that almost all ‘critical’ or ‘radical’ approaches to international law are firmly located in the academy, or the ‘discipline’, or the ‘field’ as it is often called. These approaches are often marked by the eclecticism and the closely related pragmatism which traditionally emanate from the United States, just as British mainstream thinking is often termed ‘empiricism’. * 1. 2.

Birkbeck College, University of London On file with the author. Paavo Kotiaho, ‘A Return to Koskenniemi; or the disconcerting co-optation of rupture’, 2 Legal Studies Research Paper Series (2011) . References to online sources are accurate as of 19 January 2013.

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What is going on in each case is an attempt to shake up or to re-frame the theory of international law. However, there is a plain disjuncture between on the one hand those with a professional and career interest in renewing the scholarly community, and on the other those who wish to apply their legal skills to the service of progressive causes. In this article I first review Critical Legal Studies as they have developed in Britain and the disjuncture - despite efforts at unification - between scholars and practitioners. I focus specifically on Britain, both for the intrinsic interest of the subject matter, but also my own involvement over many years. There is a striking, for me, absence in almost all of this work. That is, critical legal scholars miss - or even ignore - the ‘radical international law’ pursued by organised engaged political lawyers. Special attention is therefore given throughout this paper to the International Association of Democratic Lawyers (IADL), the umbrella organisation of activist lawyers in existence since World War II, and from time to time of real importance in the development of international law. The IADL’s own membership has comprised since its inception a number of national organisations of politically active lawyers in a large number of states – for example, the National Lawyers Guild in the USA and the Haldane Society of Socialist Lawyers in England. This leads me to a focus on the American and international dimension of my account, and a special focus, an immanent critique as it were, on one major and highly influential article by David Kennedy, “Thinking Against the Box”.3 Kennedy’s work, and this article in particular, have been extraordinarily influential for a number of leading critical scholars in Britain. In this respect the work of Akbar Rasulov is discussed in some detail. From Kennedy and his followers I turn to another scholar (who is also a practitioner) Martti Koskenniemi, and his recent reflections on the politics of international law. These are two of the most influential scholars in critical or radical international law, but for another – highly persuasive for me – account I draw from Pierre Bourdieu’s exceptionally penetrating analysis of the social world in which all lawyers, scholars and practitioners, have their being. This thematic is further developed in relation to the revolutionary content of post World War II international law. This leads me to my conclusion, a question and a plea to all lawyers.

3.

David Kennedy, ‘When Renewal Repeats: Thinking Against the Box’, 32 New York University Journal of Law and Politics (2000) 335-499.

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2. Critical scholarship and political lawyering in Britain 2.1 Critical scholars and activist lawyers: a continuing disjuncture The disjuncture between critical legal scholars and activist lawyers identified previously is exemplified both in the United States and in Britain. In the United States, critical scholars positioned themselves in Critical Legal Studies (CLS)4 during the 1980s, and latterly in New Approaches to International Law (NAIL), and Third World Approaches to International Law (TWAIL), of which more below. Activist practitioners on the other hand have organised and still do in the National Lawyers Guild5, founded in 1937 and thus in 2012 is celebrating “75 Years of Law for the People”6; and in the closely associated Center for Constitutional Rights.7 The CCR litigates in the US courts, and its victories have established major legal precedents, from Filártiga v. Peña-Irala8 which opened U.S. courts for victims of serious human rights violations from anywhere in the world, to NOW v. Terry9 which established a buffer zone around abortion clinics. There has been very little interchange or cross-fertilisation between these two camps in the US. In Britain, the history of critical legal studies has been distinctively different from the US. While CLS effectively died in the US some years ago, it is still alive in Britain. The journal Law and Critique, edited in the Birkbeck Law School, continues to publish a wide range of critically-inclined theoretical scholarship. The annual Critical Legal Conference, the first of which took place at the University of Kent in 198610, has long outlasted its US counterpart11 and each year continues to take place at a different campus, including recent conferences in South Africa, India, Finland and Sweden. A small but consistent group of legal scholars identify themselves with the journal and conference.

4.

See for example Roberto Mangabeira Unger, ‘The Critical Legal Studies Movement’, 96 (3) Harvard Law Review (1983) 561-675; and Mark Tushnet, ‘Critical Legal Studies: A Political History’, 100 Yale Law Journal (1990) 1515-1544 ; Nigel Purvis,‘Critical Legal Studies in Public International Law’, 32 Harvard International Law Journal (1991) 81-127. 5. . 6. . 7. “The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change.” 8. Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980). 9. NOW v. Terry, 159 F.3d 86 (2d Cir. 1998). 10. See for the paper given by Nikolas Rose at that conference. 11. See Peter Goodrich, ‘Sleeping with the Enemy: An Essay on the Politics of Critical Legal Studies in America’, 68 New York University Law Review (1993) 185-389.

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Theoretically, both the journal and the conference are highly eclectic. Marxist or Marxian scholarship is a continuing but relatively very small component, with many more scholars motivated by post-modernism in various forms. A recent manifestation of this school is entitled New Critical Legal Thinking: Law and the Political12. In two of the chapters politics are discussed by reference to Giorgio Agamben’s oeuvre. Yet the political does not include legal activism. Similarly a London-based web-site, Critical Legal Thinking, Law & the Political13, established in 2009, is also a showcase for the flourishing of a hundred schools of thought. It describes its purpose with a grand flourish: This is our time, the time of protest, of change, the welcoming of the event. Critical (legal) theory must be re-linked with emancipatory and radical politics. We need to imagine or dream a law or society in which people are no longer despised or degraded, oppressed or dominated and from that impossible but necessary standpoint to judge the here and now. (Legal) critique is the companion and guide of radical change.

For sure, the web-site is regularly updated with fascinating material, primarily by young scholars. I am invited to contribute as well. The Critical Legal Conference for 2012 has just taken place in Stockholm at the time of revising this article (September 2012). Its unifying theme and focus was “Gardens of Justice”. According to the call for papers, critical scholars were invited to explore: a plurality of justice gardens that function together or that are at times at odds with each other. There are for instance well ordered French gardens, with meticulously trimmed plants and straight angles, but that also plays tricks on your perception. There are English gardens that simultaneously look natural – un-written – and well kept, inviting you to take a slow stroll or perhaps sit down and read a book. There are closed gardens, surrounded by fences, and with limited access for ordinary people. There are gardens organized around ruins, let’s call them Roman gardens, where you can get a sense of the historical past, but without feeling threatened by its strangeness. There are Japanese stone gardens made for meditation rather than movement. There are zoological gardens, where you can study all those animal species that do not have a proper sense of justice, no social contracts, no inequality and social injustice, and no legal systems. There is, indeed, the Jungle, a real or imaginary place outside the Gardens of Law.14

In an article placed on the Critical Legal Thinking site15, Paul O’Connell offered one interpretation of this theme, one which tells us something about the 12. Matthew Stone, Illan rua Wall and Costas Douzinas (eds), New Critical Legal Thinking: Law and the Political (Birkbeck Law Press, Routledge: Abingdon, 2012). 13. . 14. . 15. Paul O’Connell, ‘Trouble in the Garden: Critical Legal Studies & the Crisis’, .

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current state of critical legal scholarship (and perhaps critical scholarship more generally). In his view, the title and call together are an indictment of the critical legal project … (movement seems a wholly inappropriate term at present). At a time at which global and national elites are engaged in an unprecedented assault on the living conditions and rights of working people, when democracy, even in its ‘low intensity’ form, is in retreat, the leading lights in critical legal inquiry are retreating into the gardens of their own imagination, and abandoning the less pristine, less genteel footpaths and public squares of politics.

Such criticisms are not new, of course.

2.2 CLS in Britain and its critics The history of the CLS movement in Britain may be traced in the books published over the years by the managing editor of Law and Critique and leading figure in CLS, Costas Douzinas16, who has moved intellectually from the French deconstructionist Jacques Derrida in 199117, to the ethics of alterity of Emmanuel Levinas in 199618, to the Marxist utopianism of Ernst Bloch in 200019, to the Slovenian Lacanian Slavoj Žižek, to Jacques Lacan and psychoanalysis, and more recently to the controversial conservative Catholic theorist Carl Schmitt and his disciple Giorgio Agamben in 2007.20 The theoretical outlook of the CLS in Britain, including its take on Marxism, is well summed up in Douzinas and Gearey’s Critical Jurisprudence.21 But it is hard to escape the conclusion that CLS in England has been devoted more to eclecticism and the encouragement of approaches such as law and literature, than to any radical political critique. In 1999, Peter Goodrich, one of the movement’s founders, published an acerbic critique.22 His position, as summarised in his abstract, was as follows:

16. For a critique of Douzinas’ more recent work see Chapter 8, ‘“Postmodern” reconstructions of human rights’ in Bill Bowring, The Degradation of the International Legal Order? The rehabilitation of law and the possibility of politics (Routledge-Cavendish: Abingdon, 2008). 17. Costas Douzinas, Postmodern Jurisprudence: the Law of the Text in the Texts of the Law (Routledge-Cavendish: Abingdon, 1991). 18. Costas Douzinas, Justice Miscarried: Ethics, Aesthetics and the Law (Edinburgh University Press, 1996). 19. Costas Douzinas, The End of Human Rights (Hart Publishing: Oxford, 2000). 20. Costas Douzinas, Human Rights and Empire: The political philosophy of cosmopolitanism (Routledge-Cavendish: Abingdon, 2007). 21. Costas Douzinas and Adam Gearey, Critical Jurisprudence: The Political Philosophy of Justice (Hart Publishing: Oxford, 2005). 22. Peter Goodrich, ‘The Critic’s Love of The Law: Intimate Observations on an Insular Jurisdiction’, 10(3) Law and Critique (1999) 343-360.

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Finnish Yearbook of International Law (Vol. 22, 2011) Lacking academic identity, political purpose and ethical conviction, critical legal scholarship in England has been too insecure in its institutional place and too unconscious of its individual and collective desires to resist absorption into the institution. Critical legal studies – as distinct from feminist legal studies, gay and lesbian studies or critical race theory – has tended to teach and so reproduce the core curriculum in a passive and negative mode. Resistant, ostensibly for historical and political reasons, to self-criticism and indeed to self-reflection upon their institutional practices, critical scholars have ended up repeating the law that they came to critique and overcome.

Akbar Rasulov, too, has provided a powerful critique of the influence of poststucturalism in the context of international law which reflects that of Goodrich’s.23 He concludes as follows: What is going to be the effect of the poststructuralist intervention in international law? Will it be to encourage international lawyers – by reminding them that now, as ever before, everything in the international arena is only a transient product of a contingent combination of traces and hegemonic self-exertions – to experience their everyday work as an ongoing exercise of power? Or will it be to discourage all but the most dedicated of them, with its confusing vocabulary and uncritical interdisciplinarism, from performing any other kind of intellectual operations than a linear explication of the established dogma? Or will it, perhaps, simply tire them with its dogged insistence that the existing tradition is too outdated and a new method has to be created?

Despite Douzinas’ recent forays into the critique of human rights, international law, with the exception to which I turn below, was rarely the focus of CLS conferences. Antony Carty was an exception, during the 1990s.

2.3 Critical legal scholars and radical lawyering in Britain However, a more serious problem, in my view, was the failure of the Critical Legal Conferences to engage with the rather strong tradition of left political lawyering in England. I have in mind political lawyers engaging in radical legal practice. There is also a long tradition of lawyers who have played vitally important roles in other capacities. The Haldane Society of Socialist Lawyers24 was founded in 1930, as an organisation of lawyers active in the Communist Party and the left of the Labour Party. It is proud to have been ‘a legal thorn in the side of every government, 23. Akbar Rasulov, ‘International Law and the Poststructuralist Challenge’, 19 Leiden Journal of International Law (2006) 799–827; this is a review essay on Peter Fitzpatrick and Patricia Tuitt (eds), Critical Beings: Law, Nation and the Global Subject (Ashgate: Aldershot, 2004); and Sinkwan Cheng (ed), Law, Justice, and Power: Between Reason and Will (Stanford University Press, 2004). 24. See it was named after the first Labour Party Lord Chancellor.

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lobbying for law reforms, civil liberties and access to justice for all; supporting national liberation movements against colonialism and campaigning against racism and all forms of discrimination.’’ It has always worked closely with the National Council for Civil Liberties (founded in 1936, now named Liberty) and with the Trade Union movement. The Society never saw itself as an independent political force, nor did it conceive of law as inherently revolutionary or as capable of being moulded into revolutionary theory; rather, it saw the role of politically active lawyers as serving the interests of the working class and the oppressed. Haldane lawyers were particularly active in support for the miners in their strike in 1984-1985, and proudly provided services to the National Union of Mineworkers. Members re-located to Yorkshire, Nottinghamshire and elsewhere, providing free representation, and becoming familiar figures in the Magistrates’ Courts (which frequently sat through the day and the evening). They consistently campaigned for human rights in Northern Ireland and against internment without trial. They challenged the miscarriages of justice experienced by the Guildford Four, Birmingham Six, Judith Ward and others. They were also instrumental in calling for a public inquiry into the Bloody Sunday massacre and represented the families and survivors at the Inquiry. Internationally, members of Haldane provided free legal assistance to the African National Congress (ANC) and South West Africa People’s Organization (SWAPO) members throughout the long years of the struggle against apartheid, and regularly picketed South Africa House. And they were active in the IADL. Furthermore, the Haldane Society has succeeded in attracting new generations of campaigning lawyers, publishes its journal Socialist Lawyer several times a year, and young Haldane lawyers represent defendants accused of public order offences, and provide monitors for anti-fascist and anti-racist demonstrations. But while some leading left-wing scholars have been active members of Haldane – notably Professors Bill Wedderburn25 and Keith Ewing26 - their participation has been the result of their interest and expertise in labour law – that is Haldane’s key trade union history and connection. Neither has, to my knowledge, every considered themselves to be “critical legal scholars”, or ever participated in critical events.

25. 1927-2012 – known especially for his book: The Worker and the Law (Penguin: London, 1986). 26. Author of The Bonfire of the Liberties (Oxford University Press, 2010); with Anthony Bradley, Constitutional and Administrative Law (Longman: New York, 2007); with Tom Campbell and Adam Tomkins, Skeptical Essays on Human Rights (Oxford University Press, 2002); with Conor Gearty, The Struggle for Civil Liberties (Oxford University Press, 2000); with Conor Gearty, Freedom under Thatcher: Civil Liberties in Modern Britain (Oxford University Press, 1990).

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2.4 A British attempt to link theory and practice However, there have been serious attempts to bring the two worlds together. A few years after the founding of the Critical Legal Conference at Kent University in 1986, two leading radical scholars teaching at Kent edited a collection which gave good reason for optimism, that the gap between scholars and practitioners might be bridged. The Critical Lawyers Handbook, published in 199227, and edited by Ian GriggSpall and Paddy Ireland, brought together scholars and practitioners, several active in the Haldane Society, and published my own first short essay, “Socialism, Liberation Struggles and the Law”.28 The themes of my essay were concretised and extended in my own 2008 book29. A noteworthy feature of the Handbook was its three part structure: Critical Theory; Critical Legal Education; and Critical Legal Practice. Alan Thomson provided a Foreword “Critical approaches to Law. Who needs Legal Theory?”30, introducing the eclecticism which was characteristic of British CLS already. But Robert Fine and Sol Picciotto’s chapter was entitled “On Marxist Critiques of Law”, with an account of Yevgeniy Pashukanis31; and Costas Douzinas and the late Ronnie Warrington contributed, in ironic post-modern mode: “The (Im)possible Pedagogical Politics of (the Law of ) Postmodernism”. The section also contained Anne Bottomley on Feminism; Sammy Adelman and Ken Foster on “Critical Legal Theory: The Power of Law”; and Peter Fitzpatrick on “Law as Resistance”. The second section, on Legal Education, started with a senior representative of US Critical Legal Studies, Duncan Kennedy, on “Legal Education as Training for Hierarchy”32; and continued with Alan Hunt “Critique and Law: Legal Education and Practice”, Alan Thomson on Contract Law, Alan Norrie on Criminal Law, Joanne Conaghan and Wade Mansell on Tort Law, as well as Property Law, Company Law, Labour Law, Constitutional Law and European Law. Indeed, a thorough antidote was provided to the usual black letter, positivist, uncritical textbooks. My own essay was in the third section on Critical Legal Practice. The outstanding human rights lawyer Michael Mansfield QC, now President of the Haldane Society, contributed “Critical Legal Practice and the Bar”33; Kate Markus, then at the highly political Brent Law Centre (now a barrister at Doughty Street 27. Ian Grigg-Spall and Paddy Ireland (eds), The Critical Lawyers Handbook (Pluto Press: London, 1992). 28. Bill Bowring, ‘Socialism, Liberation Struggles and the Law’, in Ian Grigg-Spall and Paddy Ireland (eds), The Critical Lawyers Handbook (Pluto Press: London, 1992) 179-183. 29. Bowring, Degradation, supra note 16. 30. Ibid., at 2-10. 31. Ibid., at 16-21. 32. Ibid., at 51-61. 33. Ibid., at 157-161.

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Chambers) and Chair of Haldane wrote on “The Politics of Legal Aid”34; David Watkinson, the veteran advocate for squatters and travellers, now at Garden Court Chambers but soon to retire, wrote on “Radical Chambers, Wellington Street: A Personal View”35; and John Fitzpatrick, who created and has led for many years the Kent Law Clinic, wrote two chapters, on “Legal Practice and Socialist Practice”36 and “Collective Working at Law Centres”37. The final section of the Handbook was “An Alternative Guide to Solicitors’ Firms and Bar Chambers”. Most of the scholarly contributors have become prominent in academe and some are at the point of retirement; and the practitioners have taken part in the massive expansion of radical practice, especially at the Bar, with Doughty Street, Garden Court and Tooks Chambers. The Handbook therefore not only brought together the scholarly and practitioner worlds, but was very deliberately aimed at encouraging law students to undertake critical and radical careers. In my view, although I may be accused of nostalgia and of showing my age, it was a highpoint of CLS in Britain. Following publication of the Handbook, there was one attempt only at a joint conference of the CLC and the Haldane Society, at Kent University. This was memorable for a sharp clash between John Fitzpatrick, then a member of the Revolutionary Communist Party, and Stephen Sedley QC, still a member of the Communist Party, before his appointment to the High Court Bench.38 But the critical scholars and the radical lawyers were oil and water, or chalk and cheese: there was no cross-fertilisation or even mixing. I helped to organise the Critical Legal Conferences at University of East London in 1995 and at the University of North London in 2001, both with Marxist streams and a few practitioneractivists; but the predominant tone was eclecticism, despite efforts to counter this tendency. At the time of revising this article there are renewed attempts by the Haldane Society and the Law School at Birkbeck College to organise joint events, and Haldane members have for three years taken part in thematic evening debates in the School’s successful “Law on Trial” series. But radical legal practitioners have not been seen at the annual CLC for many years.

34. 35. 36. 37. 38.

Ibid., at 184-190. Ibid., at 167-172. Ibid., at 149-156. Ibid., at 173-178. John Fitzpatrick was awarded an OBE for his work at the Kent Law Clinic; and Sir Stephen Sedley recently retired as a judge of the Court of Appeal.

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3. The International 3.1 The international dimension of political lawyering If the CLC has taken place in a number of countries, including India, radical practitioners have been organised on a global scale for much longer. Indeed, here is an example of a radical lawyer with international scope in the 19th century. An example very much to my taste – so please forgive me what may seem to be an extraneous paragraph - is that of the barrister Samuel Moore, who translated into English the Communist Manifesto and most of Volume One of Capital. He was born in 1838, and having failed as the owner of a cotton mill, became a barrister at the age of 40, practising in Manchester. He was the closest English friend of Friedrich Engels, who was 18 years older than him, born 1820, and who successfully ran the cotton mill belonging to his father’s firm until his retirement. Although Moore became a member of the International Working Men’s Association in 1866, having been on holiday with Engels the previous year, he was not politically active, save for his monumental work of translation of Capital, especially in 1883-4, after Marx’ death. He translated the Communist Manifesto in 1887. Like Engels, his revolutionary views did not prevent him from accepting very un-revolutionary employment, from 1889 to 1899 as Chief Justice of the territories of the Royal Niger Company (now Nigeria).39 He delivered a tribute at Engels’ funeral in 1895, and died in 1911. There was no radical or political lawyers’ organisation to which he could belong, but were he to have been born a century later, matters might have been very different. Both the National Lawyers Guild and the Haldane Society of Socialist Lawyers are member organisations of the International Association of Democratic Lawyers. Yet an awareness of the existence of the IADL and of the tradition of active political engagement of legal practitioners and scholars (more the former than the latter) is almost entirely lacking from the many works of critical scholars. The IADL was founded on 24 October 1946 in Paris by lawyers from 24 countries.40 It remains active, despite the loss since 1991 of the substantial subsidy it received from the USSR and from, for example, the Algerian FLN – which paid for a headquarters building in Brussels, and for staff. Now organised through the internet, its XVI and XVII Congresses took place in Paris and Hanoi respectively in 2005 and 2009. Its website gives details of its many activities and

39. William Otto Henderson, The Life of Friedrich Engels (Taylor & Francis: New York, 1976) vol.1, at 281. 40. USA., USSR, UK, France, Belgium, Brazil, Bulgaria, Canada, Colombia, Cuba, Ecuador, Spain, Greece, Iran, Luxembourg, Norway, New Zealand, The Netherlands, Poland, Argentina, Sweden, Switzerland, Czechoslovakia, Venezuela, Yugoslavia. See Martin Popper, ‘International Association of Democratic Lawyers’, 6 Lawyers Guild Review (1946) 572-573.

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campaigns.41 The latest Bureau meeting took place in September 2012 in Gaza, hosted by the Palestinian Centre for Human Rights, previously the Gaza centre for Rights and Law, led by Raji Sourani since 1990. The Palestinian lawyers are active members of IADL. Rene Cassin, a drafter of the Universal Declaration of Human Rights, was named the first IADL President. During the Cold War it was regularly identified and condemned as a Soviet front organisation, which in many ways it was, and its member organisations included the Association of Soviet Lawyers and lawyers’ organisation from all the socialist countries, but also strong organisations in the USA (the National Lawyers Guild, still very active), Latin America, Japan, India, many African countries, and Western Europe. It supported and participated in the liberation movements and the struggles of the peoples of South Africa, Angola, Guinea Bissau, Kenya, Mozambique, Namibia, Northern Ireland, Puerto Rico and elsewhere on the globe. William Twining has noted: ‘During the early years of the Cold War the International Commission of Jurists promoted the Rule of Law and civil and political rights… in counterpoint with the International Association of Democratic Lawyers, who supported anti-imperialist movements and social and economic rights.42

It should be noted that the ICJ was financed initially and until 1967 by the CIA, through the American Fund for Free Jurists, but the CIA’s role was not known to most of the ICJ’s members.43 Indeed, the IADL played an important role in promoting the right of peoples to self-determination, which I have described as ‘the revolutionary kernel of international law’; the enshrining in international law of the principles formulated by Marx and Engels in the second half of the 19th century, and developed by Lenin in the period immediately before the First World War.44 Through the bloody struggles for decolonisation which followed World War II and came to a peak in the 1960s, these principles became a legal right as common article 1 to the two International Covenants on human rights of 1966. The violent hostility from mainstream Western scholars towards the IADL was exemplified in an extraordinary article published in 1960 by Professor El41. . 42. William Twining, ‘Diffusion of Law: A Global Perspective’, 49 Journal of Legal Pluralism and Unofficial Law (2004) 1-46, at 11, note 18. 43. Richard Claude, ‘Review of The International Commission of Jurists, Global Advocates for Human Rights by Howard B. Tolley, Jr.’, 16 Human Rights Quarterly (1994) at 576. 44. See Bill Bowring, ‘Self-determination – the revolutionary kernel of international law’, in The Degradation of the International Legal Order? The rehabilitation of law and the possibility of politics (Routledge-Cavendish: Abingdon, 2008); and Bill Bowring, ‘Marx, Lenin and Pashukanis on Self-Determination: Response to Robert Knox’, 19(2) Historical Materialism (2011) 113-127.

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liot Goodman of Brown University and author of The Soviet Design for a World State.45 Goodman ignored the contributions of Marx, Engels and Lenin, turned history on its head, and declared: The idea of national self-determination, fathered by political theorists like Mazzini and Wilson, is, of course, Western in origin. But in an age of nation-building in the Afro-Asian world, skillful Soviet use of this concept presents Western diplomacy with a formidable and continuing challenge in the East.46

He acknowledged that: As a result of Soviet initiative, the issue of self-determination for non-self-governing peoples became enmeshed in the numerous deliberations on human rights. Basic to the enjoyment of any human rights, the Soviet delegates insisted, is the right of national self-determination, which must be realized in the colonial and nonself-governing territories of the West.

By 1952, said Goodman, “It was abundantly clear that the venerable complex of ideas associated with national self-determination had been fashioned into a blunt political weapon by a Soviet-Afro-Asian entente.”47 That is, of course, by an alliance of the USSR with those countries which had already fought their way out of colonial domination. I repeat that these political struggles, encompassing the planet as a whole, and forever changing the content of public international law, are beyond the horizon of almost all scholars of international law.

3.2 An attempt to bring politics back into CLS: The 2008 Critical Legal Conference Recently, there was a remarkable, hitherto unique, attempt to extract revolutionary political potential from the CLC. The 2008 conference took place at Glasgow University in September 2008, and was organised by the Marxist international legal scholar Akbar Rasulov, from Uzbekistan, now at Glasgow University.48 He brought about a visit by the Indian scholar B. S. Chimni, who delivered a provocative keynote speech entitled ‘Prolegomena to a Class Approach to International Law’.49 Chimni is well known as a leader of Third World Approaches to International Law (TWAIL) – see below – and the author of the splendid 1993 International Law and World Order: A Critique of Contemporary Approaches, 45. Elliot Goodman, ‘The Cry of National Liberation: Recent Soviet Attitudes Toward National Self-Determination’, 14 (1) International Organization (1960) 92-106. 46. Ibid., at 92. 47. Ibid., at 92. 48. Akbar Rasulov was my – brilliant - student on the LLM at Essex University. 49. Bhupinder Chimni, ‘Prolegomena to a Class Approach to International Law’, 21(1) European Journal of International Law (2010) 57-82.

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which argued that ‘Marxism still constitutes the most beneficial vehicle for the humanistic grounding of a new jurisprudence’.50 I am one of those trying to persuade the publishers to produce a new edition. In 2007, Chimni published ‘The Past, Present and Future of International Law: A Critical Third World Approach’.51 He declared that ‘A third world approach to international law, or TWAIL as it has come to be known, represents in general an attempt to understand the history, structure and process of international law from the perspective of third world states.’’ His ambitious project was ‘… that the discipline of international law be transfigured. International lawyers must, going beyond human rights law, consistently engage with the existential world of the global poor and oppressed. Ordinary life must become the focus of the entire discipline of international law.’’ It is clear that by ‘discipline’ he meant legal scholars. However, this sophisticated article, although full of references to Douzinas, Agamben, Foucault and others, did not mention self-determination or Lenin, despite the fact that, as Pheng Cheah points out, Lenin’s principled commitment to the “right of nations to self-determination” which he worked out before World War I and put into practice following the Bolshevik revolution, was the inspiration for Fanon and many others.52 Chimni’s 2008 keynote speech, published in 2010 by the European Journal of International Law, proposed a ‘class approach to international law’, to get away from the state-centred mainstream, and to focus ‘besides states on social groups and classes which are shaping and have historically shaped international law…’ This will enable “international lawyers to practise the discipline of international law as if people mattered.” 53 Thus, he was speaking to scholars of international law. He introduced a taxonomy of class: he refers to a ‘Transnational Capitalist Class’ (TCC) and a ‘congealing’ ‘Transnational Oppressed Class’ (TOC). In his view, a class approach would not require adherence to Marxism, but would be perfectly compatible with the views of Weber, Durkheim or Bourdieu. Indeed, class struggle has been endemic in human society ever since the Agricultural Revolution.54 Chimni’s proposals were directed entirely to the scholar, allowing greater understanding, new perspectives, and ‘…a class approach allows the rethinking of the liberal conception of international rule of law and its complex and contradictory relationship with the idea of global justice.’’ This is, therefore, 50. Bhupinder Chimni, International Law and World Order: A Critique of Contemporary Approaches (Sage: New Delhi, 1993). 51. Bhupinder Chimni, ‘The Past, Present and Future of International Law: A Critical Third World Approach’, 8 (2) Melbourne Journal of International Law (2007) 499-515. 52. Pheng Cheah, Spectral Nationality: Passages of Freedom from Kant to Postcolonial Literatures of Liberation (Columbia University Press, 2004) 210-212. 53. Chimni, ‘Prolegomena’, at 58. 54. See especially a remarkable text: Geoffrey de Ste.Croix, Class Struggle in the Ancient Greek World: From the Archaic Age to the Arab Conquests (Gerald Duckworth & Co: London, 1997).

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an armchair exercise. Nowhere, unfortunately, do we find the revolutionary content of post WW II international law, transformed by anti-colonial struggle; nor a single word about the role of the politically engaged lawyer. An extended version of Akbar Rasulov’s response to Chimni has been published (2010) in the Finnish Yearbook of International Law.55 Rasulov neatly sums up his perspective as follows: Done correctly, a class-analytic re-theorization of international law can supply the international law CLS community not just with a new brilliant theoretical apparatus, but with an apparatus that could give us both a highly effective instrumentarium for debunking any number of rightwing ideological mystifications and a highly reliable analytical platform for constructing practically implementable counter-hegemonic strategies.56

That is, he wants to provide scholars with more effective weapons for intellectual critique. He was, of course, addressing a CLS conference audience with a frankness that is typical of Rasulov but highly unusual in the international legal scholarly community: … where a generation and a half ago, most of the practical momentum in the international law leftwing projects came in the fields of international diplomacy and political activism, a vast majority of all leftwing efforts in international law today are limited to the field of academia… We have lost every connection our predecessors’ predecessors had with the world of activist politics and practical diplomacy.57

His critique pulled no punches: The global class structure has long immunized itself against any destabilizing action that could come from the esoteric writings of a marginalized group of Western academics, especially as disorganized as the international law CLS people are.

But he seemed not to be aware of the continuing energy and commitment of political lawyers in many countries of the world, despite being in receipt of copies of Socialist Lawyer.

55. Akbar Rasulov, ‘Bringing Class Back into International Law – A Response to Professor Chimni’, (2008) , later published as ‘“The Nameless Rapture of the Struggle”: Towards a Marxist Class-Theoretic Approach to International Law’, 19 Finnish Yearbook of International Law (2008) 243-294. 56. Ibid., at 3. 57. Ibid., at 6.

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3.3 The allure of David Kennedy and Cambridge (Harvard, that is) In what follows I seek to diagnose the reasons for Rasulov’s blindness towards, or unwillingness to recognise, political lawyering. Akbar Rasulov has a special affinity to David Kennedy. David Kennedy’s work has been extraordinarily influential in British critical international law. It is a significant point of reference for Susan Marks, who subjected ideology to stern critique in her The Riddle of All Constitutions: International Law, Democracy, and the Critique of Ideology 58, and has been closest to Marxism,59 but has turned to Kennedy especially in her recent work60. She describes him as ‘… one of the most influential and inspirational people writing on international law today…’.61 Rasulov, on the contrary, can be highly critical of Kennedy. For example, in his critique of poststructuralism to which I referred above, he stated: Take, for instance, David Kennedy’s International Legal Structures.62 What is this book about? What does it try to say? That you can think of international law as a canon of rhetorical moves? That the discourse of substance always refers us back to the discourses of process and sources? That legal aporia is ineradicable and that it is precisely because of this that international law has managed to retain its importance in modern politics? Some books are just impossible to sum up.

But he referred approvingly to one of Kennedy’s seminal works, ‘Thinking Against the Box’’63, as well as to Kennedy’s wry comments on postmodernism: I just do not think law is like that. It does not have [any of those] qualities of fixity, order, meaning, or identity [which the cultural critics ascribe to it.] ... Of course we certainly operate with ideas that sometimes seem very crude to a postmodernist [but] if the challenge raised for lawyers . . . is that we should get hip to postmodernism as a compelling description of the contemporary social scene and a cool way to be, I guess my answer would be . . . we lawyers have [already] been postmodern for a while.64 58. Susan Marks, The Riddle of All Constitutions: International Law, Democracy, and the Critique of Ideology (Oxford University Press, 2003). 59. Susan Marks (ed), International Law on the Left: Re-examining Marxist Legacies (Cambridge University Press, 2008). 60. See Susan Marks, ‘International Judicial Activism and the Commodity-Form Theory of International Law’, 18(1) European Journal of International Law (2007)199-211, at 202 (Kennedy’s remarkable writings), and at 210 twice (“David Kennedy writes passionately and compellingly of the harms caused by an excessive focus on the legal dimensions of contemporary global problems”); Susan Marks, ‘False Contingency’, 62(1) Current Legal Problems (2009) 1-21; Susan Marks, ‘Human Rights and Root Causes’, 74(1) Modern Law Review (2011) 57-78, at 77. 61. Marks, ‘False Contingency’, at 13, discussion on the whole of that page; See also ibid., at 18. 62. Rasulov’s note is: David Kennedy, International Legal Structures (1987) 195–198. 63. David Kennedy, ‘When Renewal Repeats: Thinking Against the Box’, 32 New York University Journal of Law and Politics (2000) 335-499. 64. David Kennedy, ‘Some Comments on Law and Postmodernism: A Symposium Response to Professor Jennifer Wicke’, 62 University of Colorado Law Review (1991) 475-482.

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This passage epitomises Kennedy’s engagingly discursive and familiar style, his appearance of plain talking and easy sophistication. However, in 2010 Rasulov provided, for a Glasgow University workshop entitled The ‘New Stream’ Twenty Years On: A Critical Genealogy, a contribution entitled ‘Newstream: A Critical Genealogy’. He declared: In trying to work out the Newstream’s basic trajectory, I drew heavily on various conversations with David Kennedy as well as his remarkable (and shockingly underrated) Thinking against the Box…in particular section IV(c) thereof. 65

Nevertheless, in his response to B. S. Chimni, Rasulov proposed an accurate criticism of Kennedy: To be sure, scholars like David Kennedy have done some very interesting work in this area. The Dark Sides of Virtue is probably one of the most important books written on international law in the last twenty years But as inspiring and thoughtprovoking as it may be, I don’t think it provides anything near what would be a rigorous, comprehensive explanation of this phenomenon – and that, by implication, puts a very considerable limit on its practical convertibility for the purposes of the international law leftwing project.

This is in fact a rather damning critique. Note that Kennedy’s work does not even provide ‘practical convertibility’ for the purely academic project, much less for any political activity outside academe. Highly intelligent and provocative Kennedy’s work may be – but inspiring?

3.4 A critique of David Kennedy So, what is to be found in Kennedy’s very substantial article ‘Thinking Against the Box’? Here is a crucial element in my diagnosis of Rasulov’s ambivalence and indeed the prevailing disjuncture between theory and practice in international law. In this essay, David Kennedy constantly reflects on “the discipline”66 and even “disciplinary renewal”. These words and phrases have a somewhat monastic flavour, and this is no accident. What Kennedy really has in mind is the order of established professors of international law, especially at Harvard, and also at Yale and Columbia. Thus he explains that ‘Disciplinary renewal – no less than disciplinary stasis – can best be understood as a complex interaction among groups of individuals pursuing intellectual, political, and personal projects.’67 To me, this has nothing to do with international lawyers. It is something parasitic. These projects are by necessity tied to individual careers and academic advancement. 65. Akbar Rasulov, ‘Newstream: A Critical Genealogy’, . 66. For example, David Kennedy, ‘When Renewal Repeats’, supra note 64, at 335, 336, four times on 337, 338. 67. Ibid. at 338.

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My attention was drawn straight away by Kennedy’s analysis of the history of the discipline, in the early pages of the article. The period after WW I was presented by Kennedy as entirely a debate within the American academy. There was no mention at all of self-determination, much less Lenin or the Russian Revolution. Thus, we find the following: Throughout this period, however, there were also dissident voices urging a less formal, more embedded law as a better expression of political reality and as an expression of a higher, more integrated international community. These voices were strongest in the anxious period just after the First World War, when the discipline was most resolute in rejecting the legacy of the Hague System set in place at the end of the nineteenth century and seen to have failed in 1914. They were often associated in the United States with political science rather than law, with progressive Wilsonianism, with support for the League, and with interest in international organizations more generally.68

The Russian Revolution therefore did not take place or at any rate was not worth noticing; there was no rise of Fascism and then Nazism, no Japanese imperialism. Academe in the USA was securely sheltered from the storms affecting the rest of the planet. When Kennedy turned to the period after the Second World War, there was no mention at all of the Cold War or of anti-colonial struggles. Instead, we learn that by 1960 – a crucial year for the wars of national liberation, but also of the great Resolution 1514(XV), the anti-colonial declaration - the discipline had evolved as follows: … the post-war generation of international lawyers and academics had established two new schools of thought between which international lawyers in the United States then arranged themselves for a generation. At an intellectual level, this dramatic reorganisation is perhaps the most striking instance of new thinking and disciplinary renewal in the last century.69

That is, new thinking and disciplinary renewal had nothing whatsoever to do with what is happening outside the Ivy League. Kennedy explained that the two new schools of thought were the Yale School, the ‘policy school’ of Harold Lasswell and Myres McDougall, who trained so many leading international lawyers including Rosalyn Higgins and Richard Falk; and in the opposite corner of the ring, the Columbia School led by Louis Henkin and Oscar Schachter. Just as in the pre-war discipline, there was a ‘positivist mainstream’ and a ‘naturalist counterpart’.70 These Schools had some purchase on the world outside; while 68. Ibid., at 378-379. 69. Ibid., at 379-380. 70. Ibid., at 380-381.

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Yale ‘typically’ gave full support to the US fight against the Communist spectre, promoting a ‘world order of freedom’, Columbia was more interest in cooperation, Peaceful Coexistence, and the formulation of procedural rules binding on both superpowers. So, for Kennedy, ‘people in their forties’ began to develop a new mainstream approach to ‘the field’ (a synonym for the discipline), under the banners of ‘transnational law’, ‘the legal process’, or ‘liberalism’. Note that these ‘people’ inhabited a tiny group of elite universities. Kennedy identified dissident voices – and named Allott, Berman, Carty, Charlesworth, Chimni, Chinkin, Engle, Frankenberg, Hernandez, Koskenniemi, Langville, Mutua, Onuma, Paul, Tarullo and Valdes – great names all, and many of them from outside the USA even, but a highly eclectic list all the same.71 And in a long footnote72 he explained his view of his differences with Martti Koskenniemi as to the ‘rhetorical patterns’ of ‘the field’. He identified a ‘central disciplinary problem’, how to have law among sovereigns, with his own approach identifying “a deep incoherence’ in the discipline, arising from tensions between respecting sovereigns and governing them, between autonomous law and effective law, and ‘hard’ and ‘soft’ law. Koskenniemi, for him, was more dynamic, seeing a repeated movement from apology to utopia. In an admission offered on behalf of himself and Koskenniemi (with permission?), he concluded: The only accounts we offered of the movement forward were vague psychological insinuations that people would keep working to relieve the anxiety of the ambivalence, suggestions that the language of the discipline had an internal formal logic propelling it along, or the assumption that international lawyers had to propose reforms the way that birds have to fly – it is what they do. …

To which the only conceivable response is – why bother? However, there is a further point of interest in Kennedy’s article. His text was haunted by the figure of the ‘practitioner-being’ – a very odd title indeed. This figure appeared when Kennedy discussed the way in which most scholarly work in the international law field presented itself, proposing viable improvements.73 Kennedy continued: The key here is that there is another group of people, called “practitioners”, for whom scholars are doing this work and who will judge its persuasiveness and ultimate value. However argumentative and critical this work may be, it will ultimately be judged not by other scholars on the basis of its arguments, but by practitioners on the basis of its usefulness. When scholars do judge this sort of work, they do so by reference to the often imaginary eye of the practitioner. 71. Ibid., at 388-389. 72. Ibid., at 408-409. 73. Ibid., at 399.

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He conceded that these ‘practitioners’ may very well be the academics themselves. How are these “practitioner beings” seen by those who find in them arbiters? The following passage was perhaps intended to be ironical: Nevertheless, when practitioner-beings assess things, they do so with their eyes wide open, unaffected by the fashions and egos that can befuddle scholars. Their focus is relentlessly on the real world where the rubber meets the road, and it is their judgment, or predictions about their judgment, that guarantees the pragmatism and political neutrality of the field’s development.74

These odd creatures, or rather imaginary beings or even avatars, were as far as they could be from engaged politically-minded international lawyers. And what of section IV (c), about which Akbar Rasulov enthused?75 Section IV is headed ‘Critical Performativity: New Approaches to International Law’, while C, the final part of the article, is entitled ‘The Project: Making New Thinking and Making It Known’. What is this ‘new thinking’? First, however, Kennedy gave his reader a lengthy autobiography, including how he achieved tenure at Harvard. In particular, when he established NAIL, he wanted to differentiate the new group from ‘critical legal studies’, which seemed to his students ‘at once passé, dangerous, too politicised, too much associated with a “line” of some sort.’76 In short, I think, it might have seemed to them to be quite the wrong thing for making a career in international law. And not really the done thing at Harvard. The choice of epithets is rather revealing. He closed the NAIL project down quite deliberately in 1998. What, writing in 2000, did he have to offer for the future? In his view, a project like NAIL must have ‘… a shared sense that description matters, that things are terribly misrepresented, and that correcting, changing and influencing what is understood, what is seen, what can be asked, can be a matter of passion and politics.’77 This sounds to me like a thoroughly idealist way of behaving, and as far from politics as possible.

3.5 The politics of Martti Koskenniemi In my 2008 book I noted how Susan Marks cited the words of the Finnish scholar (b.1953) Martti Koskenniemi to the effect that international lawyers would be better advised to search for “more concrete forms of political commitment” which might “engage them in actual struggles, both as observers and participants, while also taking the participants’ self-understanding seriously”78. I could see why she 74. 75. 76. 77. 78.

Ibid., at 399. Ibid., at 476-500. Ibid., at 489. Ibid., at 498-499. Martti Koskenniemi, ‘“Intolerant Democracies”: A Reaction’, 37 Harvard International Law Journal (1996) 234-235; at Susan Marks, The Riddle of All Constitutions (Oxford University Press, 2000) at 141.

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empathised. Koskenniemi, more than most international legal scholars combines theory and practice. Furthermore, he occupies a central position for the discipline: for Paavo Kotiaho he is … an initiator of the discursive practices of the left-wing international legal project, who consequently not only gives rise to the possibility of future projects, but also sets the ‘rules of formation of future texts’.79

He contributed a chapter, ‘What should international lawyers learn from Karl Marx?’ to Susan Marks’ 2008 collection International Law on the Left: Reexamining Marxist Legacies80 , in which while making it clear that he was not writing as a Marxist81, he concluded that ‘international lawyers, learning from Marx, could see international law’s emancipatory promise.’ International law may act precisely as an instrument through which particular grievances may be articulated as universal ones and, in this way, like myth, construct a sense of universal humanity through the act of invoking it.82

So the publication of a collection of his essays under the title The Politics of International Law was especially welcome.83 Chapter 11 is a revised version of work cited by Akbar Rasulov, ‘Between Commitment and Cynicism: Outline for a Theory of International Law as Practice’, first published in 1999.84 This article was inspired by Bourdieu’s work The Force of Law, to which I turn below. It was ‘… an attempt towards a sociology of international law as a profession.’ He had himself found that international lawyers ‘… almost invariably see themselves as “progressives”, whose political objectives… [include] globalisation, interdependence, democracy and the rule of law.’ 85 Having discussed the roles of the international Judge and the government legal Adviser, Koskenniemi turned to the Activist. ‘The activist participates in international law in order to further the political objectives that underlie his or her activism. The principal commitment of the serious activist is not to international law but to those objectives.’86 In Koskenniemi’s view, the lawyer activist who fails to ‘think like a lawyer’ and to ‘internalise the law’s argumentative structures’ will inevitably be marginalised.87

79. Kotiaho, ‘A Return to Koskennienmi’,supra note 2, at 3. 80. Susan Mark, International Law on the Left: Re-examining Marxist Legacies (Cambridge University Press, 2008) 30-52. 81. Koskenniemi, ‘Intolerant Democracies’, supra note 78, at 31. 82. Ibid., at 51. 83. Martti Koskenniemi, The Politics of International Law (Hart Publishing: Oxford, 2011). 84. Ibid.,at 271-293. 85. Ibid., at 271. 86. Ibid., at 289. 87. Ibid., at 290-291.

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Finally, he considered the Academic, ‘whose position is much less stable than that of the activist or the adviser.’88 He continued: Moreover, legal indeterminacy may occasion a doubt about the academic pursuit altogether; is not law precisely about the daily practice of political/government decision-making, weighing pros and cons in a world of limited time and resources, and not about the academic’s abstract norms?89

And, in this essay, Koskenniemi was distinctly wary of anything like revolutionary enthusiasm. There will, he thought, be a nasty hangover the following day. In the final essay of the book, ‘The Fate of Public International Law: Between Technique and Politics’, first published in 2007, Koskenniemi made a declaration of faith – in international law. I often think of international law as a kind of secular faith. When powerful states engage in imperial wars, globalisation dislocates communities or transnational companies wreak havoc on the environment, and where national governments show themselves corrupt or ineffective, one often hears an appeal to international law. International law appears here less as this rule or that institution than as a place-holder for the vocabularies of justice and goodness, solidarity, responsibility and – faith. 90

In this, Koskenniemi was remarkably close to David Kennedy, whom he also cited with approval, and for the most part the bloody military reprisals of the colonial powers and the immensely paradoxical diplomatic and financial effort on the part of the USSR which both gave content to the anti-colonial struggle as waged by lawyers were entirely missing from his text. But there was one passage on self-determination, buried away in a rather abstract discussion of instrumentalism and formalism, which to some extent resonates with my own position - even if Koskenniemi, like so many of his peers, entirely left out the political content, including Lenin’s contribution to the theory and practice of the ‘right of nations to self-determination’: … ‘self-determination’, typically, may be constructed analytically to mean anything one wants it to mean, and many studies have invoked its extreme flexibility. Examined in the light of history, however, it has given form and strength to claims for national liberation and self-rule from the French Revolution to decolonisation in the 1960s, the fall of the Berlin Wall, and the political transitions that have passed from Latin America through Eastern Europe and South Africa.91

Koskenniemi is an undoubtedly critical legal scholar of immense sophistication and learning. He is also a distinguished practitioner, serving in the Finnish 88. 89. 90. 91.

Ibid., at 291. Ibid., at 292. Ibid., at 361. Ibid., at 261.

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diplomatic service from 1978 to 1996, finally as director of the Division of International Law. He was Finland’s counsel in the International Court of Justice in the Passage through the Great Belt case (Finland v. Denmark) (1991-2). In 1997 to 2003 he served as a judge in the administrative tribunal of the Asian Development Bank. He is a member of the Institut de droit international. In addition to his classic texts From Apology to Utopia: The structure of International Legal Argument92 and The Gentle Civiliser of Nations: the Rise and Fall of International Law 1870 to 196093 , he has also finalised the Report of the Study Group of the International Law Commission Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law94. It is clear from the quotations set out above that Koskenniemi can see the persuasive force of a call to political commitment, and will even go as far as to say that lawyers can play a role in articulating and constructing a universalist vision. But his career has been one of impeccable distinguished service in the existing state and academic terrain on which he has found himself. He is a critical lawyer, but not in any sense radical or political; and he does not provide the resources with which to bridge the gap which is at the centre of this essay.

4. Bourdieu 4.1 Bourdieu’s theory of law and lawyering From Koskenniemi I turn to a more political figure, the French sociologist Pierre Bourdieu (1930-2002), who while never a Marxist, and a scathing opponent of Sartre, was also a fierce critic of neo-liberalism, most famously in his great La misère du monde (1993), oddly translated as Weight of the World: Social Suffering in Contemporary Society (Polity, 1999). As I mentioned above, David Kennedy acknowledges Bourdieu’s powerful 1987 essay The Force of Law: Toward a Sociology of the Juridical Field, but without analysis, and, as it were, placing it oddly together with Foucault’s oeuvre.95 I start this section with Bourdieu’s pithy critique of Marxist engagements with law. Bourdieu focused on E P Thompson, and argued that 92. Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Finnish Lawyers Publishing Company (1989) and Cambridge University Press (2005). 93. Martti Koskenniemi, The Gentle Civiliser of Nations: the Rise and Fall of International Law 1870 to 1960 (Cambridge University Press, 2002). 94. Martti Koskenniemi, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (The Erik Castren Institute Research Reports: Helsinki, 2007). 95. Pierre Bourdieu, ‘The Force of Law: Toward a Sociology of the Juridical Field’, 38 Hastings Law.Journal (1986-1987) 814-853; and Richard Terdiman, ‘Translator’s Introduction’, 38 Hastings Law.Journal (1986-1987) 805-813.

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The architectural metaphor of base and superstructure usually underlies the notion of relative autonomy. This metaphor continues to guide those who believe they are breaking with economism when, in order to restore to the law its full historical efficacy, they simply content themselves with asserting that it is “deeply imbricated within the very basis of productive relations.”96 This concern with situating law at a deep level of historical forces once again makes it impossible to conceive concretely the specific social universe in which law is produced and in which it exercises its power.

Bourdieu was, as I have pointed out, no Marxist, but rather a follower of Weber; but there is merit in this criticism. What is the curious intellectual social world in which Kennedy traces the adventures of ‘the discipline’? Why is this world so attractive and so tenacious? For me the most striking contribution of this essay is Bourdieu’s characterisation of the legal field, and the inevitable destiny of academic critics. He was much more acute than, for example, Peter Goodrich, whose 20th Anniversary Lecture for the Birkbeck Law School was entitled “An Instance of the Fingerpost: An Excursus on the Legal and the Digital “.97 Goodrich’s powerful attack on British CLS, mentioned above, has not led him to change his theory or his practice. Bourdieu was interested in the ‘social practices of law’, which he saw as being the product of the functioning of the ‘field’, namely the ‘area of structured, socially patterned activity or ‘practice’, in this case disciplinarily and professionally defined.’98 The ‘field’ is characterised by a specific logic which is determined by two factors. First, there are the specific power relations of all its participants - judges, practitioners, academics – which give it its structure. Those power relations order the competitive struggles, or conflicts over competence, between its participants. The second factor is the ‘internal logic of juridical functioning which constantly constrains the range of possible actions’ for its participants, and ‘limit the range of specifically juridical solutions’.99 Bourdieu further specified that this juridical ‘field’ is indeed the site of ‘competition for the right to determine the law’. This competition takes the form of a confrontation between participants ‘possessing a technical competence which is inevitably social’, and which ‘consists essentially in the socially recognised capacity to interpret a corpus of texts sanctifying a correct or legitimised vision of

96. Edward Thompson, Whigs and Hunters: The Origin of the Black Act (Penguin: London, 1975) at 261. 97. , with a link to the podcast of the lecture, which moved from antiquarian curiosities to acerbic attacks on certain US scholars. There is a further link to the slides which accompanied the lecture. 98. Terdiman, ‘Translator’s Introduction’, supra note 95 at 805. 99. Bourdieu, ‘The Force of Law’, supra note at 816.

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the social world.’ Thus, law functions through its ability to provide the ‘common sense’ of non-legal members of society. Bourdieu put it this way: It is essential to recognize this in order to take account both of the relative autonomy of the law and of the properly symbolic effect of “miscognition” that results from the illusion of the law’s absolute autonomy in relation to external pressures.100

That is how Bourdieu explained the tension in law between ‘formalism’ and ‘instrumentalism’. In the final analysis, law is to an extent a closed system, developing according to its internal dynamics; and it has the capacity to fool the public into believing that it is really independent from political, economic and social power. Law also has the capacity to incorporate its lawyer critics, and in a footnote Bourdieu explained that … even the most heretical of dissident legal scholars in France, those who associate themselves with sociological or Marxist methodologies to advance the rights of specialists working in the most disadvantaged areas of the law (such as social welfare law, droit social), nonetheless maintain their commitment to the science of jurisprudence.101

That is precisely what I identified above. This has the following depressing effect. For Bourdieu, the function of law in maintaining the symbolic order is not the result of an intervention of external power, but on the contrary the result of innumerable actions by the whole range of participants who do not at all intend to implement that function of law, and may very well be entirely subversive in their motivation. Thus, for example, the subversive efforts of those in the juridical avant garde in the end will contribute to the adaptation of the law and the juridical field to new states of social relations, and thereby insure the legitimation of the established order of such relations.102

That is the fate of the lawyer, academic or practitioner.

4.2 The revolutionary content of post-WW II international law My own position103 is that international law is indeed a special case, quite different from domestic law. There are serious arguments, drawn from English positivism (Austin) and international relations ‘realism’, as to whether there is any such thing. It is my contention that the international law to which Martti 100. Ibid., at 817. 101. Ibid., at 844. 102. Ibid., at 852. 103. Most recently explored in Bill Bowring, ‘Marx, Lenin and Pashukanis on Self-Determination: Response to Robert Knox’, 19 (2) Historical Materialism (2011) 113-127.

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Koskenniemi referred as the ‘gentle civilizer of nations’104 or for an imagined and reactionary version of which Carl Schmitt had such nostalgia,105 and of which the USSR had throughout its existence such a rigidly positivist account,106 was thoroughly transformed in the post-World-War II period. The creation of the United Nations by the victorious powers – all the permanent members of the Security Council with the exception of China were colonial powers at the time – was almost immediately subverted and transformed by the bloody and tumultuous anticolonial struggles. This, I repeat, is why I describe the right of peoples to self-determination as the revolutionary kernel of international law. It is my case that the working-out of struggles for this right dominates the international agenda to this day. The same considerations inspire my materialist account of human rights, which starts with the identification, itself nothing new, of three generations of human rights, each with its inception in the revolutionary events of the 1780s, of the years following 1917 and, especially, of the great anticolonial struggles of the post-World-War II period. Each of these inspiring revolutionary events and the rights associated with them – the civil and political rights of the French Revolution, the social and economic rights of the Russian Revolution, and the third-generation rights, crowned by the right of peoples to self-determination – make available to succeeding generations a ‘symbolic capital’ upon which each may draw. That is where my account resonates with Koskenniemi’s ‘form and strength’ in the citation above. In this way, the rights in question, at first glance no more than forms of words, mere rhetoric, acquire material force when mobilised in struggle. This is what I meant by ‘. . . their proper status as always scandalous, the product of, and constantly reanimated by, human struggle.’107

5. Conclusion: what are lawyers – academic and activist - to do? I am with Paavo Kotiaho when, in his powerful critique of Koskenniemi, he cites with approval Robert Knox108: 104. Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge University Press, 2001). 105. Carl Schmitt, The Nomos of the Earth: In the International Law of the Jus Publicum Europaeum, translated by Gary Ulmen (Telos Press Publishing: New York, 2003). 106. See Bill Bowring, ‘Positivism versus Self-Determination: the Contradictions of Soviet International Law’, in Susan Marks (ed), International Law on the Left: Re-examining Marxist Legacies (Cambridge University Press, 2008) 133-168. 107. Bowring, Degradation, supra note 16, at 112. 108. Kotiaho, ‘A Return to Koskenniemi’, supra note 2, at 11.

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Finnish Yearbook of International Law (Vol. 22, 2011) …. we ought not to turn to the ethical prescripts advocated by Koskenniemi above, but rather follow the tactical guidance given by Robert Knox, and recognize that The shape of the legal form means that pursuing a legal strategy can break up collective solidarity, and renders progressive forces unable to address the systemic causes of social problems. Indeed, to mount a legal strategy is to risk legitimating the structures of global capitalism […] International law, then, must never be pursued because it ‘is law’, but only insofar as its content can advance the aims of progressive constituencies. What must be pursued is a ‘principled opportunism’, where – in order to undercut the individualizing, legitimating perspective of law – international law is consciously used as a mere tool, to be discarded when not useful.109

In his concluding paragraphs, Kotiaho calls for a Marxist analysis of international law, but does not join China Miéville and Robert Knox in following Evgeny Pashukanis’ writings of the early 1920s.110 I have engaged critically both with Pashukanis and with Knox’s take on him in the three texts cited in this article, and will not repeat my arguments here. Suffice it to say that I am continuing to research Pashukanis’ early work for a forthcoming book Law, Rights and Ideology in Russia, and I maintain that Pashukanis, writing in the period of NEP (New Economic Policy) in Soviet Russia with its qualified return to a market economy, foregrounded the persistence of bourgeois law in Russia and thus entirely missed the revolutionary content of the right to self-determination. He became an enthusiastic (uncoerced) supporter both of ‘socialism in one country’ and of ‘peaceful coexistence’, eulogising Stalin, only to fall victim to Stalin’s purges. He was an academic, not an activist lawyer. Which is not to say that the radical or left-wing legal scholar has no role to play, far from it. The power of law to perpetuate misrecognition of real power relations and to perform its vital role of legitimation of the symbolic order of capitalism, which is what Susan Marks refers to as ‘ideology’, must indeed be stripped of its false normativity and subjected to a thorough-going and disillusioned materialist critique. At the same time, an accurate historical account of the development of international law in the 20th century will reveal the actual revolutionary and scandalous content of international law. Which is not to say that law is or can be itself revolutionary. However, it is to be hoped that the scholar or for that matter practitioner, freed of illusion, eyes wide open, will not simply relapse into the armchair, but 109. Robert Knox, ‘Marxism, International Law and Political Strategy’, 22 Leiden Journal of International Law (2009) 413-429. 110. Evgeny Pashukanis, ‘International Law’, reproduced as an annex to China Miéville, Between Equal Rights: A Marxist Theory of International Law (Brill: Leiden, 2005) at 321, 333; and Evgeny Pashukanis, ‘Lenin and Problems of Law’, in Piers Beirne and Robert Sharlet (eds), Pashukanis: Selected Writings on Marxism and Law (Academic Press: New York, 1980).

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will find ways to employ her legal competence and skills modestly in the service of collective resistance and struggle. If not, she will fall into a striking performative contradiction. The political-inspired lawyers will get on with what they are very usefully doing already. The radical legal scholars, on the other hand, have their own important work to do. A good place to start is the immanent critique of some of the illustrious leaders of the debate. In a small way, that is what this essay has attempted to do.

What is to be Done (with Critical Legal Theory)? Robert Knox* Without a revolutionary theory there can be no revolutionary movement. This thought cannot be insisted upon too strongly at a time when the fashionable preaching of opportunism goes hand in hand with an infatuation for the narrowest forms of practical activity. Lenin, What is To Be Done?1

Introduction The relationship between scholarship and political action has always been a burning issue. It is particularly important in the case of scholarship oriented away from the political mainstream. Here, there is no easy route to political effectivity through think tanks, working groups or the various technocratic transmission belts between academia and ‘public policy’. In the context of the renewed wave of leftwing political activism – from the Occupy movement, to the Arab Spring, to the global anti-austerity movements – this question is no longer simply important but also urgent. As such, in writing his piece, Bill Bowring has rendered a great service to those of us who identify as ‘the left’ inside of the international legal academy. His article joins a growing number of pieces designed to address the question *

1.

Many of the ideas in this paper were hashed out in angry discussions about the state of critical legal theory and pie in the sky dreaming about the potential to change things conducted in various pubs across London. So my thanks go to my co-participants in these noble exercises – in particular Tor Krever, Paavo Kotiaho and Owen Taylor – as well as to those who provided the alcohol to facilitate said discussion. Thanks also to Honor Brabazon, Luis Eslava, Tor Krever and the anonymous reviewers of the Finnish Yearbook of International Law for their helpful comments on drafts of this piece. Given the over-zealous pedantry displayed by one reader, I am tempted to blame any errors of style on him or her, alas, however, I am a stickler for tradition, so any errors of style or substance remain mine alone. Vladimir Lenin, What is to be Done? Burning Questions of Our Movement, (Foreign Languages Press: Peking, 1973) at 28.

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of how (or whether) international law might be used to advance the interests of the oppressed and exploited.2 The article is particularly useful for two reasons. Firstly, in focusing on the British ‘branch’ of Critical Legal Studies (CLS), it sheds light on a part of CLS that was much more explicitly rooted in the Marxist tradition, and more focused on the question of political action. Secondly, in focusing on organisations of progressive lawyers, the article addresses an existing gap in the literature. Throughout the piece Bowring strongly criticises CLS, particularly its American variant. Many of his criticisms, especially as regards its eclecticism and its political disengagement are entirely correct.3 In particular, it is clear that the leading critical figures in international legal scholarship cannot meaningfully be said to possess ‘radical’ politics. However, it will be argued here that Bowring’s analysis suffers from several important problems, which ultimately deprive it of much of its force. In particular, it is argued that Bowring has an overly restrictive and narrow notion of ‘practice’, which undermines many of the arguments he makes about its relationship to ‘theory’.

Critical =⁄ Radical Bowring’s understanding of practice is prefigured by his understanding of the two groups that he seeks to analyse. In his opening paragraph, he differentiates between ‘radical, or critical, legal scholars’ whose aim ‘is to problematise and unsettle the law’ and ‘radical, or critical, legal practitioners’ who aim to ‘place their skills at the service of protagonists in the class struggle’.4 There are immediately several problems with this approach. First and foremost, as Bowring seems to later recognise, when speaking of the legal academy one cannot interchangeably use the labels ‘radical, or critical’. Critical legal scholarship is a scholarly ‘movement’ associated with a number of theoretical positions – the indeterminacy thesis, the constitutive nature of law, the fact that law is political, 2.

3.

4.

Robert Knox, ‘Marxism, International Law and Political Strategy’, 22 Leiden Journal of International Law (2009) 413-426; Robert Knox ‘Strategy and Tactics’, 21 Finnish Yearbook of International Law (2010) 193-229; Grietje Baars, ‘Reform or Revolution? Polanyian Versus Marxian Perspectives on the Regulation of the Economic’, 64 Northern Ireland Legal Quarterly (2011) 415-431 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 For a critical account of the apolitical nature of contemporary American CLS see Tor Krever, ‘A Journal of the Legal Left?’ (forthcoming) Unbound; see Owen Taylor ‘Reclaiming Revolution’ 22 Finnish Yearbook of International Law (2011) 259-292 for an account tracing the depoliticised nature of contemporary critical scholarship’s approach to radical social change more broadly. Bill Bowring, ‘What is Radical in “Radical International Law”?’, 22 Finnish Yearbook of International Law (2011) 3-29, at 3.

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etc.5 Whilst these positions do place critical legal scholars outside of the academic mainstream, they do not necessarily indicate any radical political commitment. Indeed, writing as one of those involved in organising the Towards a Radical International Law workshop (whose call for papers was a source of inspiration for Bowring’s piece), I can state that part of the rationale for using the word ‘radical’ was to indicate a political break with existing critical legal theory. This is a fact that Bowring recognises in his accounts of Kennedy’s and Koskenniemi’s politics, so it seems odd that he would make this conflation. This is important because whilst it may be true that the aim of many of the scholars under Bowring’s umbrella term is to ‘problematise and unsettle the law’, many of us have broader aims. Rather than simply orienting ourselves towards ‘unsettling the law’, many scholars are explicitly outward facing, seeking to provide analytical legal tools for progressives invoking the law,6 or cautioning against too enthusiastically embracing the law as a tool for social change.7 Whilst this may not always be successful, the aim is clearly more than simply ‘unsettling the law’. Equally, many progressive legal practitioners do not view themselves as placing their skills ‘at the service of protagonists of the class struggle’8. There are a number of different understandings to which they might hold, such as advancing ‘justice’ and ‘human rights’, or protecting the rule of law.9 Indeed, John Hendy QC, a Vice President of the Haldane Society of Socialist Lawyers, (an organisation that Bowring points to as an example of radical lawyering)10 argued that ‘the notion of a left-wing barrister is an absurdity ... [y]ou don’t ask what someone’s politics ... are before you accept a brief ’ because ‘the cab-rank rule is far more important’.11 5. 6. 7.

Knox, ‘Strategy and Tactics’, supra note 2 at 201-203. Rasulov, ‘The Nameless Rapture of Struggle’, supra note 2 at 290-294. China Miéville, Between Equal Rights: A Marxist Theory of International Law (Brill: Leiden, 2005) at 295-318; Knox, ‘Marxism, International Law and Political Strategy’ supra note 2 and Tor Krever, ‘International Criminal Law: An Ideology Critique’ (forthcoming) Leiden Journal of International Law. 8. Bowring, ‘What is Radical’, supra note 4, at 3. 9. One can see this in the examples of the Barristers’ Chambers that Bowring cites as examples of ‘the massive expansion of radical practice’ – Doughty Street, Garden Court and Tooks Chambers. Doughty street is motivated by the ‘desire for justice’ and aims at the ‘promotion of human rights and civil liberties through the law’ (last accessed February 2013). Garden Court is ‘driven by our strong ethics and a passionate belief in human rights and social justice’ and ‘progression of civil liberties and access for all to social justice’ (last accessed February 2013) . Tooks focuses on ‘protecting the individual against the interests of the state’ () and ‘pushing the boundaries of the law to protect the rights of individuals’, (last accessed February 2013). 10. Bowring, ‘What is Radical’, supra note 4, at 8-9. 11. Russel Fraser and Ripon Ray, ‘Interview: John Hendy QC’, 55 Socialist Lawyer (2010) 1620, at 20.

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What this suggests then, is that positing two relatively homogenous groups – one composed of ‘theorist’ scholars and the other composed of ‘practical’ lawyers – may not be productive. Instead it is better to understand that within each of these two groups, various theoretical understandings of practice, and theoretical attempts to change practice exist – with certain positions cohering across the divide. In particular neither of these groups can be said to be wholly Marxist yet both have self-identified Marxists within them. A corollary of such a position (or perhaps a precondition) is an understanding of both theory and practice (and their relation) which is necessarily broader than Bowring’s argument allows. It is to such a conception that this article now turns.

Wither practice? Bowring’s particular understanding of practice is perhaps best illustrated through his account of Pashukanis. After detailing his political trajectory, Bowring notes that Pashukanis ‘was an academic, not an activist lawyer’.12 One could immediately quibble with this description, and note that Pashukanis was in fact a circuit judge and served as legal adviser to the People’s Commissariat of Foreign Affairs. However, such a quibble obscures a more fundamental fact. One can hardly characterise Pashukanis as simply as an ‘academic’. At the height of his influence, his academic work became orthodoxy in the Soviet state, shaping the outlook of a generation of lawyers. His theoretical positions had direct political implications – impinging on what the revolutionary state’s positions would be towards law and legal regulation in the transition period.13 Thus, Pashukanis’ ‘academic’, ‘theoretical’ work had direct and immediate political and practical consequences, and he consciously understood this. This practical importance is illustrated by the fact that he was executed because his theoretical positions were increasingly at odds with Stalin’s policy of legal consolidation.14 In this context, it seems rather odd to argue that Pashukanis was ‘not an activist lawyer’. As noted above, Bowring initially characterised activist lawyers as those ‘whose aim is to place their skills at the service of protagonists in the class struggle’. Yet this is precisely what Pashukanis’ theoretical interventions aimed to do. In accounting for the relationship between law and capitalism, he sought to intervene politically in the constitution of the Soviet state and its practices 12. Bowring, ‘What is Radical’, supra note 4, at 28. 13. Indeed, as Stephen Cohen notes – and as will be expanded upon below – in the Bolshevik imaginary theorising was an incredibly important activity and as such the Bolsheviks ‘respected theory and ideas as passionately as truth because they believed the two were synonymous, and saw in this their capacity for leadership’, Stephen F. Cohen , Bukharin and the Bolshevik Revolution: A Political Biography 1888-1938 (Wilwood House: London, 1974). 14. Piers Beirne and Robert Sharlet, ‘Introduction’ in Piers Beirne and Robert Sharlet (eds.), Pashukanis: Selected Writings (Academic Press: New York: 1980) at 4-5.

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and guide it towards its ultimate victory. One can disagree substantively with his contribution, but it seems misplaced to argue that this was not a contribution towards the practice of the class struggle. In fact, one can go further than this. In a revolutionary state, where the oppressed and exploited have taken power and positive social transformation is occurring, what exactly does the concept of an ‘activist lawyer’ mean? This is the crux of Bowring’s problematic understanding of practice. Throughout the piece it remains at a purely narrow, defensive level. His examples of progressive legal practice include the representation of defendants accused of public order offences, the provision of monitors for anti-fascist demonstrations, participation in campaigns for human rights and the provision of free representation on legal matters.15 These are all admirable goals, but they are hardly necessarily indicative of radical politics. Most self-confessed liberals could happily sign up to such a programme. Whilst these actions may protect the immediate interests of the oppressed and exploited, one cannot say they self-evidently challenge the conditions responsible for oppression and exploitation in the first place, namely capitalist social relations.

From practice to praxis Such an understanding of ‘practice’ is hardly new in the history of left wing political thought. Indeed, it was one of the most prominent targets of Lenin’s ire in his famous polemic What is to be Done?. In this work, Lenin criticised the ‘Bernsteinian’ trend in social democracy for ‘reducing the working-class movement and the class struggle to narrow trade unionism and to a “realistic” struggle for petty, gradual reforms’.16 Lenin argued that this was tantamount to dissolving the radical distinctiveness of socialism as a political movement. This argument allowed Lenin to distinguish between ‘trade union consciousness’ and ‘Social-Democratic consciousness’ (at the time, ‘Social Democracy was the name for the revolutionary Marxist movement). In the former case, what was at issue was ‘the conviction that it is necessary to combine in unions, fight the employers and strive to compel the government to pass necessary labour legislation’.17 By contrast, Social-Democratic consciousness involved an understanding of ‘the irreconcilable antagonism of their [the exploited] interests to the whole of the modern political and social system’.18 Which meant orienting practice towards overthrowing this system.

15. 16. 17. 18.

Bowring, ‘What is Radical’, supra note 4, at 9. Lenin, What is to be Done?, supra note 1, at 20. Ibid., at 27. Ibid., at 36.

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Taking this schema and further developing it, Antonio Gramsci suggested three different levels of ‘collective political consciousness’ with corresponding forms of practice.19 The first was what Gramsci called the economic-corporate level, where members of specific professional groups realise their common interests and fight for them.20 The second was when ‘consciousness is reached of the solidarity of interests among all the members of a social class-but still in the purely economic field’. The practical outcome of this was reform that remained with ‘existing fundamental structures’.21 The final stage was one which can be termed ‘hegemonic’. Here a subordinate group ‘becomes aware that one’s own corporate interests ... transcend the corporate limits of the purely economic class, and ... must become the interests of other subordinate groups’.22 Consequently such a group will have to pose a ‘universal’ struggle, which transcends the status quo and articulates a new hegemonic order. Lenin and Gramsci are not the only ones to have articulated such a distinction,23 but they have the advantage of posing the issue very sharply. The relevance here should be obvious. When Bowring describes ‘practice’ he reduces it simply to ‘trade union consciousness’ or to Gramsci’s ‘purely economic’ categories. He does not seem to have an equivalent of the radical practice that the two describe. What is it, then, which constitutes this more radical type of practice? It is here that the passage from Lenin cited at the beginning of this article becomes relevant. Lenin argued that what allowed for the production of a distinctively radical (or revolutionary) practice was the existence of a revolutionary theory.24 Indeed, Lenin went further than this, infamously arguing that, left to their own devices, the oppressed will only ever develop trade union consciousness and that Social Democratic consciousness needed to be introduced ‘from the outside’ by ‘educated representatives of the propertied classes’.25 One need not agree with Lenin’s controversial statement to understand its logic. One’s immediate experience of oppression or exploitation is powerful, but 19. Antonio Gramsci, Selections from the Prison Notebooks (International Publishers: New York, 1971) at 181. 20. Ibid. 21. Ibid. 22. Ibid. 23. See Knox, ‘Strategy and Tactics’, supra note 2 at 215-222 and Baars, supra note 2 (where the problem is discussed under the rubric of ‘reform or revolution’) for accounts of others who have operated with such considerations. Within the international legal field specifically Luis Eslava and Sundhya Pahuja provide a detailed typology of the different types of practical standpoints available to international lawyers, noting that at the very least we can find a difference between ‘conservation’, ‘reform’ and ‘revolution’ all of which would result in different legal practices, in ‘Between Resistance and Reform: TWAIL and the Universality of International Law’ 3 Trade Law and Development (2011) 103-130, especially at 110-115. 24. Lenin, What is to be Done?, supra note 1, at 28. 25. Ibid., at 37.

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it is unable to locate that experience within a broader ensemble of social relations. It is only through theoretical reflection that one can understand the ways in which broader logics produce and sustain particular instances of oppression and exploitation. And it is only by understanding these logics that one might formulate practices which could overcome them.26 Gramsci extended this argument to its logical conclusion. He used the term ‘praxis’ to denote this conscious unity of theory and practice. For him, such a conception was so central to Marxism that he dubbed it ‘the philosophy of praxis’.27 In erecting an overly rigid divide between theory and practice, Bowring elides a distinctive type of revolutionary practice. This means that the division of labour which Bowring proposes at the end of his piece is flawed. He argues that politically-inspired lawyers can ‘get on with what they are very usefully doing already’, whereas scholars should engage in immanent critique of other scholarship, and subject law to ‘disillusioned materialist critique’. Yet the argument above suggests that the practice of radical lawyers will itself need to be framed by theoretical reflection, meaning that the theory of radical scholars cannot be simply separated off from practice.

We are all theorists now... Bowring’s overly reified distinction between theory and practice does not just operate on the practical side; it is also problematic in terms of his understanding of theory. Here, once again, it is useful to turn to the work of Antonio Gramsci, particularly his reflections on ‘philosophy’.28 Gramsci argued that it ‘is essential to destroy the widespread prejudice that philosophy is a strange and difficult thing’.29 This was because ‘all men are “philosophers”, since in every one of their actions they have a conception of the world and the relation between its various parts.30 This is as true of practicing lawyers as it is of anyone else. Even engaging in the narrower activities that Bowring describes involves making ‘theoretical’ judgments about the effectiveness of law, its contestability, the political role it can play, the 26. John Sabonmatsu is especially insightful on this point, see The Postmodern Prince: Critical Theory, Left Strategy, and the Making of a New Political Subject (Monthly Review Press: New York , 2004) at 193. 27. Gramsci, Selections, supra note 19, at xiii. It is sometimes argued that this was simply Gramsci’s ‘codeword’ for Marxism, but Peter Thomas has convincingly shown this is not the case, and that in fact the ‘philosophy of praxis’ indicates something specific about Gramsci’s understanding of the Marxist tradition, see Peter Thomas The Gramscian Moment: Philosophy, Hegemony and Marxism (Brill: Leiden, 2009), at 105-108. 28. For a discussion of how this plays out more broadly in theoretical terms see Knox, ‘Strategy and Tactics’ supra note 2, at 211-212. 29. Gramsci, Selections, supra note 19, at 323. 30. Ibid.

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importance of formal equality etc. This is even more pronounced when the aim of these lawyers is ‘serving the interests of the working class and the oppressed’.31 Such a position involves a series of theoretical questions about what the interests of these groups are, whether we mean their immediate interests or their longer term interests and whether or not law can in fact serve these interests. Of course, one might argue, if theory is all pervasive, then the above importance of ‘theory’ is misplaced – practice is always and already praxis. Yet here Gramsci insisted that one must distinguish between what we might call – following Althusser32 – ‘spontaneous philosophy’, and more considered, critical reflection. For Gramsci, if everyone is a ‘philosopher’, the only question becomes: [I]s it better to “think”, without having a critical awareness, in a disjointed and episodic way? In other words, is it better to take part in a conception of the world mechanically imposed by the external environment ... Or, on the other hand, is it better to work out consciously and critically one’s own conception of the world ... ?33

Thus, the ‘theory’ referred to in the previous section is theory in its systematic and self-conscious sense. This becomes especially important because absent this, one’s supposedly concrete practical proposals can slide somewhat into empty abstraction. Thus, at the end of his piece, Bowring puts forward his practical call-to-arms, urging that: However, it is to be hoped that the scholar or for that matter practitioner, freed of illusion, eyes wide open, will not simply relapse into the armchair, but will find ways to employ her legal competence and skills modestly in the service of collective resistance and struggle. If not, she will fall into a striking performative contradiction.34

The problem with such a statement is that it demands further theoretical reflection if it is to be meaningful. Very few people on the (legal) left would disagree with the idea that it is necessary to employ their legal skills in service of collective resistance and struggle. But such a statement begs a number of questions. The main question is of course how exactly one’s skills can be deployed ‘in service of collective resistance and struggle’, and what forms of practice this would entail. This is especially important because there is a world of difference between taking 31. Bowring, ‘What is Radical’, supra note 4, at 9, 15. 32. Louis Althusser, Philosophy and the Spontaneous Philosophy of the Scientists, (Verso: London, 1990). Althusser had his own account of these issues, he argued that theory itself is a specific form of practice, ‘theoretical practice’, which transforms facts and concepts (given to it from other practices) into ‘knowledge’. This knowledge would then be ‘reflected’ or ‘expressed’ in other practices. See For Marx (Penguin, 1969) at 167. Whilst his approach has much in common with Gramsci’s, it suffers from an overly abstract schema which cannot account for the ways in which theory and practice are always and already dialectically intertwined. 33. Gramsci, supra note 17, at 323. 34. Bowring, ‘What is Radical’, supra note 4, at 28-29.

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advantage of legal opportunities that arise in the course of social struggles and framing those social struggles in terms of rights. In order to concretise Bowring’s practical proposal one would need a theoretical account about the nature of law and its relationship to capitalism (and imperialism, exploitation and oppression). The relevance of this task is heightened by a tension running through Bowring’s own argument. In his critique of some of the leading lights of the critical field, Bowring approvingly cites Pierre Bourdieu’s account of the juridical. From Bourdieu, Bowring takes the idea that ‘[l]aw has the capacity to incorporate its lawyer critics’35 by contributing to ‘adaptation of the law and the juridical field to new states of social relations’ and therefore legitimating the established order.36 For Bowring, this represents ‘the fate of the lawyer’, including both scholars and practitioners.37 Yet if this is the ‘fate of the lawyer’, how can one say that legal action serves the interests of the oppressed and exploited? What the quote suggests is that even when legal action serves the short term interests of the oppressed and exploited, in the long term it contributes towards legitimising those very relations that give rise to their oppression and exploitation. As I have argued elsewhere, this disjuncture gives rise to the theoretical problem of the relationship between strategy and tactics.38 In order to work out a practice that can be said to further the interests of the oppressed and exploited in the long term it is necessary to reflect on what law is, whether its legitimating function is intrinsic to its nature and whether it can be overcome. In the absence of this, any ‘practical’ usage of law will remain at best confused and at worst will default to a certain kind of liberal legalism. This applies a fortiori to international law. As he has argued elsewhere,39 for Bowring, international human rights law embeds a revolutionary legacy, serving as ‘symbolic capital’ for future struggles.40 Yet surely Bourdieu’s point holds here as well. Even if the language of international human rights law can be mobilised in struggle, it ultimately serves to legitimate the status quo, and integrate oppressed groups into the structure of global capitalism.41

35. 36. 37. 38. 39.

Bowring, ‘What is Radical’, supra note 4, at 26. Ibid. Ibid. Knox, ‘Strategy and Tactics’ supra note 2. Bill Bowring, The Degradation of the International Legal Order? The Rehabilitation of Law and the Possibility of Politics (Routledge-Cavendish: London, 2008). 40. Bowring, ‘What is Radical’, supra note 4, at 26. 41. Balakrishnan Rajagopal’s International Law from Below: Development, Social Movements, and Third World Resistance (Camridge University Press, 2003) gives an account of how human rights discourse has continually incorporated the resistance of the Third World, and channelled it into the creation and proliferation of an interventionist international bureaucracy. Of course, there have been those who have – despite being critical of human rights – held out that their contradictory nature might open up space for forms of political contestation,

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This is especially true in the case of Bowring’s most cherished right – that of self-determination. As Koskenniemi has argued (in an article not discussed by Bowring), the function of the legal discourse of self-determination42 has been to ‘reconstitute the political normality of statehood’43 in periods of political instability. Whilst it remains pregnant with some kind of ‘revolutionary’ content, it ultimately channels resistance into a form constitutive of the modern global order – the nation-state.44 This is particularly evident in the case of decolonisation, where the achievement of the legal right to self-determination was followed by the rise of neo-colonialism – formal legal independence matched by subtler forms of economic exploitation, which kept imperialism in place.45 Bowring attempts to address this by arguing that ‘international law is ... a special case’ because it was rent with ‘bloody and tumultuous’ struggles.46 Yet this seems to miss Bourdieu’s point. The (domestic) law Bourdieu described was also marked by high levels of social struggles.47 In fact it is precisely because these struggles are conducted through the law that it is able to serve the function that Bourdieu marks out for it. This cannot be what makes international law a ‘special case’. In order for Bowring to make his practical case for international law, it is necessary to engage in further ‘academic’ reflection.48

42.

43. 44. 45. 46. 47.

48.

see for example Costas Douzinas, Human Rights and Empire: The Political Philosophy of Cosmopolitanism (Routledge-Cavendish: New York, 2007). One of the consequences of Bowring’s insufficient theorising of the specificity of legal argument is that he constantly conflates the Bolsheviks’ political programme of self-determination with the legal right to self-determination. In so doing, he misses the determinate anti-imperialist context in which the Bolsheviks raised the slogan, and the analysis that lay behind it, neither of these are present in the legal right. Martti Koskenniemi, ‘Self-Determination Today: Problems of Legal Theory and Practice’ 43 The International and Comparative Law Quarterly (1994) 241-269, at 246. For a detailed historical and theoretical account of this process see Sundhya Pahuja, Decolonising International Law: Development, Economic Growth and the Politics of Universality (Cambridge University Press, 2011) at 44-95. The literature on neo-colonialism is vast, but see Kwame Nkrumah, Revolutionary Path (Panaf Books: London, 1973) at 310-340. Bowring, ‘What is Radical’, supra note 4, at 27. In fact, as Reecia Orzeck has argued, domestic law may in fact be more amenable to such forms of struggle, see Reecia Orzeck, ‘The Difference the Scale Makes: Domestic and International Law through a Class Lens’, unpublished paper, presented at the Seventh Annual Historical Materialism Conference, 2010. This is reinforced by Bowring’s later claim that ‘an accurate historical account of the development of international law in the 20th century will reveal ... [its] revolutionary ... content ... Which is not to say that law is or can be itself revolutionary.’ For this statement to have any content whatsoever it would require an account of the legal form (as opposed to its content), why this form is not revolutionary, and an explanation of the relationship between form and content. All of these questions would have massive implications for whether the ‘symbolic capital’ Bowring alludes to could be usefully deployed.

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Don’t mourn, organise Given the focus on the unity of theory and practice, it would be ironic if these issues could be resolved purely on the intellectual level. This was not the case. For both Lenin and Gramsci, and the Marxist tradition more generally, the issue was also a profoundly practical one, concerning political and organisational questions. Indeed, What is to be Done? is a polemic in which Lenin argued for a particular organisational form for the Russian Social Democratic movement. What is important for this argument is that, for Lenin, the unity of theory and practice was generated through the party – an organisational form in which intellectuals and workers were brought together to form political perspectives.49 The same was true of Gramsci, who argued that the political party was the ‘Modern Prince’, which could intervene in ‘spontaneous’ practical struggles and ‘give them a conscious leadership or raise them to a higher plane by inserting them into politics’.50 It was for this reason that Gramsci considered the political party the method through which the oppressed elaborate ‘their own category of organic intellectuals directly in the political and philosophical field’.51 Given this, it is salutary that Bowring pays a great deal of attention to organisations. However, since he continues to hold ‘theory’ and ‘practice’ as rigidly separate categories, he is unable to understand the organisational form appropriate to a radical legal practice. In Bowring’s account, the question of organisation essentially revolves around taking the discrete categories of ‘theorist’ and ‘practitioner’ and making them speak to each other. This is evident in his description of the Critical Legal Conferences, where the aim is to ‘bring’ radical legal practitioners to the event. The problem is more marked in Bowring’s account of radical lawyering organisations such as the CCR, IADL, NLG and Haldane Society. Obviously, these are all important organisations that do valuable work; however, it is necessary to rethink the degree to which one can really characterise them as ‘radical’. For example, Bowring notes that the aim of the Haldane Society is to lobby for ‘law reforms, civil liberties and access to justice for all’, support ‘national liberation movements against colonialism’ and campaign ‘against racism and all forms of discrimination’.52 As noted above, there is nothing in this list that would be especially offensive to various non-radical liberals. This extends to the

49. Lenin, What is to be Done?, supra 1, at 153-154. 50. Gramsci, Selections, supra note 17, at 199. 51. Gramsci, Selections, supra note 17 at 15. Initially Althusser’s schema did not address this question; simply talking about the ‘reflection’ or ‘expression’ of theory in practice, however, as he recognised in a later introduction that this fusion exists in ‘concrete forms of existence’ such as trade unions and parties, which direct class struggle. See Althusser, Philosophy, supra note 32, at 15. 52. Bowring, ‘What is Radical’, supra note 4, at 9.

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legal practice in which these organisations engage, many of which could happily be supported by civil libertarians or social democrats. In fact, one can go further than this. Whilst it is perhaps true that the lobbying in which such organisations engage can only be done by those loosely on the ‘left’, much of the ‘practical lawyering’ engaged in by the members of these organisations could be done by lawyers with no self-professed political alignment. With the exception of the cost (that is to say, when radical lawyers do pro bono work), the basic legal tactics and actions all remain well-within the professional limits of the legal order. Essentially then, the radicalism of such organisations inheres only in the subjective orientation of their members, and in the fact that the cases these lawyers take on – with the caveat raised above as regards the ‘cab-rank rule’ – can be said to protect the immediate interests of the oppressed and exploited. This is reflected in their organisational character. These are organisations of lawyers who orient towards certain forces of the left – in particular the Trade Unions, ‘centre-left’ political parties such as the Labour Party and the Democratic Party and protest movements – but have no meaningful organisational connection to such forces. The extent of such organisational connections in their ‘practical’ work is that the left will frequently be their clients. Without wishing to belittle the work done by these organisations, it is useful to compare it to three examples from the history of ‘radical lawyering’. The first is the Reichstag Fire trial, where an essentially Nazi-controlled court tried Marinus van der Lubbe, Ernst Torgler (leader of the Reichstag Community Party group) and Georgi Dimitrov, Simon Popov and Tanev (members of the international Communist movement staying in Berlin) for burning down the German Reichstag.53 The Nazis are now generally acknowledged to have had (at the very least) a significant part in starting the fire, and intended to use it and the trial to discredit the Communist movement and exaggerate the threat it posed to the German state. Although much of the trial was conducted in legalistic language, it is most famous for Dimitrov’s political defence of his actions. He took every opportunity to cross-examine witnesses, accusing them of being in the pay of the Nazis, and goading Goering into to threatening him with murder.54 Above all, Dimitrov used the trial not as a device to prove his individual innocence, but to destroy the political credibility of the Nazis and politically defend the Communist Party. Famously, when Goering declared the goal of the regime was to fight against the Communists, Dimitrov responded: 53. John Mage and Michael Tigar ‘The Reichstag Fire Trial, 1933–2008: The Production of Law and History’ 60 Month Review (2009) (last accessed December 2012). 54. Ibid.

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“Yes, of course, bravo, bravo, bravo! They have the right to fight against the Communist Party, but the Communist Party of Germany has the right to go underground and to fight against your government; and how we fight back is a matter of our respective forces and not a matter of law.”55

The second example, is that of Jacques Vergès, the (then) radical French attorney who was closely associated with the Front de Libération Nationale (FLN) of Algeria, a radical anti-colonial movement that sought to liberate Algeria from French colonial domination. Vergès engaged in systematic theorising about the role of legal argument in relation to social struggle and put this into practice through a number of radical legal tactics.56 The most discussed aspects of these practices were Vergès’ various attempts to directly politicise trials, engaging in grandstanding activities, and denouncing the legitimacy of ‘justice’ emanating from colonial countries etc. However, there were also a number of smaller roles that he played which were also important. In particular, he highlighted the importance of lawyers as serving as a means of communication between members of the FLN. They carried messages (and orders) to imprisoned members from both the ‘outside’ organisation and other imprisoned members. This was only possible because of the particular privileged relationship that exists between lawyer and client.57 The final example is perhaps more ‘black letter’ than the preceding ones, but nonetheless remains on a continuum with them. One of the most famous activities of the Black Panther Party was the armed patrols in which they engaged. Essentially, Party members would watch the police in order to prevent them engaging in violence against the black community, whilst brandishing firearms. Obviously, the police were not especially fond of such tactics, and would attempt to move them along. Against this, Huey Newton – who had taken night school law classes – would note his Second Amendment right to bear arms, as well as legal precedent for standing a reasonable distance from police officers. Bobby Seale offers a vivid account of how this became an aggressive political tactic: “Who do you think you all are anyway?” Huey said to the pigs. And the other pigs are on the sidewalk harassing all the brothers and sisters who have gathered around: “You people move on down the street!” Huey started interrupting. “You don’t have to move down the street! Don’t go anywhere! These pigs can’t keep you from observing. You have a right to observe an officer carrying out his duty.” 55. Ibid. 56. For an overview of Vergès’ ‘strategy of rupture’ see Knox, ‘Strategy and Tactics’ supra note 2 at 225-227; Martti Koskenniemi, ‘Between Impunity and Show Trials’, 6 Max Planck Yearbook of United Nations Law (2002) 1-35 and Emilios Christodoulidis, ‘Strategies of Rupture’, 20 Law and Critique (2009) 3-26. 57. Jacques Vergès, De La Stratégie Judiciaire, (Les Éditions de Minuit: Paris, 1968) at 190-198. He also describes this experience in the documentary Terror’s Advocate.

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Finnish Yearbook of International Law (Vol. 22, 2011) And these pigs, they listened to this shit. See, Huey’s citing law and shit. “You have a right to observe an officer carrying out his duty. You have a right to. As long as you stand a reasonable distance away, and you are a reasonable distance. Don’t go anywhere.”58

What is significant about all of these actions is that their radical nature inheres directly within them. In each instance, there is clearly action on the ‘legal plane’, but action that goes beyond the accepted and recognised parameters of the law, in order to further the struggle.59 In these instances, radical politics is manifested directly in the actions of those invoking the law. Indeed – particularly in the case of the first two examples – these tactics might well be frowned upon in strictly legal terms, and could result in the defence failing, or a lawyer being subject to professional or penal sanctions. Each of these actions therefore is one which could not be ‘apolitically’ done by any practicing lawyer, yet they nonetheless remain identifiably within the legal realm. This is a markedly different vision of legal radicalism to that practiced by the organisations that Bowring describes. What this points to is a fundamental difference in orientation. On the one hand, we have a lawyer who is ‘working’ for a political organisation and on the other, we have a militant whose struggle has extended to the legal field. With the former, the character of the legal action is dictated by the legal field, and politics enters into play by using this logic to ‘win’ for the left. In the latter, legal tactics are dictated by a broader political logic, which may at times be unconventional or even counterproductive in legal terms. This is not purely a question of subjective orientation. The common factor in each of these examples is that the members belonged first-and-foremost to disciplined political organisations (indeed neither Dimitrov nor Newton were lawyers in the professional sense). Their actions within the legal field were dictated by the organisations to which they belonged.60 58. Bobby Seale, Seize the Time: The Story of the Black Party and Huey P. Newton (Black Classic Press: Baltimore, 1991) at 89. 59. As Honor Brabazon succinctly puts it, there is a difference between ‘the use of law for politics and the use of law as politics’. Whereas the latter involves political objectives being subordinated to the procedural logic of the law, in the former case, law is subordinated to political objectives, and so it is invoked in a way contrary to its intended use. See Honor Brabazon, ‘Occupying Legality: The Selective Use of Law in Latin American Occupation Movements’, forthcoming in Bulletin of Latin American Research. Such a position dovetails with what I have elsewhere termed ‘principled opportunism’, whereby ‘law should never be invoked as an independent consideration: an intervention should never be conducted directly in the name of legality’, see Knox, ‘Strategy and Tactics’, supra note 2, at 222. 60. Eslava and Pahuja posit a similar argument, their categorisations are based on the relationship between an individual’s sense of ‘justice’ and its relation to law. Hence, for them – as here – the revolutionary occupies ‘liminal or border position between inside and outside the law’, invoking it when necessary but not being defined by it. However, owing to their rather individualist and

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Bringing this together, we can now begin to see the shape of a radical legal praxis and its organisational character. Essentially, in the type of radical party envisaged by the Marxist tradition, theory and practice can be brought together in an organisational form. There is no rigid separation between theory and politics, because theory is essential for analysing the structural character of the world order, and formulating the strategic perspectives for its overthrow. These are then mediated through the practical struggles of the organisation into tactical perspectives. A similar process occurs with law. Theoretical reflection on the relationship between law and capitalism determines the overall strategic orientation towards law, and helps comprehend the limits of legal struggle. This theoretical reflection must of course draw from the ‘practical’ activities of members of the organisation. Yet these practical activities are necessarily framed by the theoretical and political orientation of the organisation as a whole. As such, the more immediate ‘tactical’ issues of legal struggle are not determined by the logic of the legal field, but rather through collective political deliberation, framed by theoretical, strategic and political perspectives. This may result in a decision to adopt legalistic tactics (because winning an immediate victory may be the overriding concern), or it may not, but that decision is governed by collective political decision-making. It is in this way that ‘theory’ and ‘practice’ are brought together. Here the key difference lies not so much in whether one is a theorist or practitioner, but rather in the different strategic political choices made by those who operate primarily in the legal field.

Conclusion: What is to be Done? There is of course an obvious response to the above considerations. Whilst it is all well and good to speculate about such organisations, they are in rather short supply in the contemporary world. Indeed – one could argue – the organisations that Bowring pays attention to were in fact historically linked to such types of political parties (in particular the various Communist Parties). This objection is correct. However, it is only correct in the short term. A key lesson from the Marxist tradition is that we cannot rigidly separate the short-term from the long-term. The internal focus, they fail to note the vital importance of political organisation in creating the space for this ‘outside’ position. See Eslava and Pahuja, ‘Between Resistance and Reform’ supra note 23, at 112. Of course, this organisational form is not just limited to political parties, and so – for example –Brabazon has detailed the way in which Bolivian landless workers mediate their legal struggles through the Landless Workers Movement (MST), see Honor Brabazon ‘Legal Aspects of Agrarian Reform and Resistance in Contemporary Bolivia’, unpublished paper, presented at the Towards a Radical International Law Workshop, London, 2011.

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‘long-term’ is ultimately made up from an accumulation of short-term moments. Thus, if we are to take our strategic commitments seriously, they must manifest themselves in our tactics. What this means is that, even if such an organisation is not immediately on the cards, it is vital to think about the steps one might take to build one. The question then becomes what these steps might look like. One of the main aims of this piece has been an attempt to cast doubt on the idea that our starting point should be the division between ‘practitioners’ and ‘theorists’ in the ‘legal field’. Instead, it is more productive to start from the idea of radicals (who share political and theoretical commitments, at least at some inchoate level) who operate within the legal profession and then think about the type of interventions they can make. Such a position points to the need for a broader engagement with political actors as a whole. Here, once again, it is useful to turn to Gramsci. Alongside his well-known idea that everyone was a philosopher, there lurks the idea that everyone is also a jurist. Gramsci argued that since every person creates and modifies norms in their everyday existence, they are a type of legislator.61 The only difference between these everyday legislators and ‘official’ legislators is the degree of coercion that can be exercised to secure compliance and concessions that can be granted to secure consent. Equally, although Gramsci does not say this, we can say that everyone is constantly navigating a complex series of legal rules, making judgments about their validity and – because all men are also philosophers – implicitly making a number of theoretical assumptions about the nature and function of law. Hence, in a sense, we are all lawyers. This is especially true of political movements. Outside of defensive legal actions such as trials, there is constant recourse to the language of legality, to specific legal provisions, to the idea of the rule of law etc., even amongst those who consider themselves politically radical. It is this ground which seems especially fertile for radical legal actors to make a contribution – given their more considered reflection and sustained practice in law. Such a contribution would necessarily encompass both the strategic and tactical dimensions of legal struggle. In this way the ‘theorists’ and ‘practitioners’ that Bowring identifies would be brought together in common conversation around a concrete project, facilitating the kind of rapprochement for which he calls. Although Bowring may place undue emphasis on the distinction between ‘theorists’ and ‘practitioners’, one cannot deny that in the real world there is a specific division of labour between legal academics and legal ‘practitioners’, meaning that they have skills and training suited to specific types of practices.62 61. Gramsci, Selections, supra note 17 at 265-266 62. Rasulov, ‘The Nameless Rapture of the Struggle’, supra note 2, at 280-281. One should note

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Therefore, it seems prudent to reflect on what sort of interventions academics might make specifically in order to further this kind of project. A correlate of the above focus on the question of organisation is the question of the form that interventions will take. In order to reach particular audiences, particular forms will be needed. Thus, what is suitable for an academic audience – written in a particular style, with close focus on referencing and only accessible to those already part of a university network – may not be best placed to reach wider political forces. In order to reach a broader audience it is necessary to prioritise writing as accessibly as possible, in fora that are open access and relatively widely read.63 Equally, such practices are not just limited to ‘writing’, radical political movements regularly run debates, talks and educational meetings – and again one’s contribution to such meetings ought to be calibrated to the audience. As noted above, in terms of content, it is already the case that a whole host of juridical issues are continually discussed by radical political movements. Interventions are therefore easily made here. In particular, focus can be placed on the issues of law’s structural interdependence with capitalist social relations, as well as the concrete instances of the law’s complicity with capitalist and imperialist domination. Given the routine nature with which imperialist actions are denounced in distinctly legalistic terms, radical legal scholars could make a strong intervention on this front. As above, this will have important implications for the strategic and tactical deployment of legal language and legal argument. This is not to say that conferences, articles and papers are not important. They serve an important function in sharpening perspectives, and encouraging debate which can then be ‘translated’ for different audiences. Historically, such debate might have been carried out within radical political organisations – who could use their resources to subsidise such sustained thinking – but this is no longer the case. Moreover, in a rather cynical vein, for those of us who are academics, such practices are a sine qua non for remaining so. However, the perspective outlined here is one that cuts against Bowring’s conclusion that we should start from ‘the immanent critique of some of the illustrious leaders of the debate’. Ironically, by insisting too strongly on his division between theory and practice, Bowring has condemned critical legal scholars to the very armchair from which he sought to liberate them.

however that this is always a blurry distinction. Academics are responsible – at least in part – for the ‘training’ of legal practitioners and many academics also act as legal practitioners. 63. In this vein, Rasulov’s call that we should reshape ‘the landscape of ‘pop jurisprudence’ and ‘pop political theory ... among the broader international-law minded public’ is well-taken’, see Rasulov, ‘The Nameless Rapture of the Struggle’, supra note 2 at 282.

Assessing the Impact of the Global Financial Crisis on Transnational Financial Law and Regulation Edward S. Cohen* AbstrAct: The global financial crisis that began in 2007 has highlighted and challenged the practice of hybrid governance in contemporary capitalism. Hybrid governance, the complex interaction between public and private agents in the making and implementation of law and regulation, has been central to the ways in which interdependent global financial markets are been structured and managed. The crisis seemed to reveal weaknesses in this practice, and set off ongoing struggles among and between private and public agents to re-structure financial law and regulation. In this article, I argue that the result of this struggle is likely to be a shifting of the balance of power in favor of public actors, but a survival of hybrid governance practices and networks in financial law-making. The latter remain essential structural elements of the contemporary financial system, and of the global economy more generally. Keywords: financial law, financial crisis, hybrid governance, public/private power

The financial crisis that began in 2007-08 has opened the door to the critical role of public-private hybrid institutions and regimes in global regulatory capitalism. These forms of regulation and governance have been particularly central to the world of global financial law and practice where, for the past two decades, an intricate set of increasingly shared understandings, norms, institutions, and networks blurred the line between public authority and private interests and priorities. By demonstrating the inability of these arrangements to provide the stability they promised, the financial crisis has led policy-makers, experts, and parts of the broader public to question the wisdom and legitimacy of such patterns of financial law and governance at the national and transnational levels. In response, national financial authorities and regulators have attempted to assert more effective control and direction of the financial flows that shape their *

Edward S. Cohen is Associate Professor of Political Science at Westminster College, New Wilmington, PA, USA. His current research centres on the politics of transnational commercial law and regulation. He can be contacted at [email protected] .

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political-economic interests, generating a growing plurality of norms and strategies in transnational financial law. At the same time, however, private actors and institutions remain central in shaping the development of financial practice, and are engaged in focused strategies to use and shape the emerging patterns of financial law and regulation. The outcomes of these responses to the financial crisis remain uncertain, but the structure of transnational financial law – the relationships between public and private power and regulation, the balance between harmonization and plurality – will rest on the push and pull among and between these agents and their strategies. This article situates the financial crisis in the context of the role of hybrid governance in contemporary capitalism, and thus begins with a discussion of these key concepts, with an emphasis on their unique dimensions in the areas of finance and financial law. I then turn to an exploration of the basic regime of transnational financial law and practice as it stood at the beginning of the crisis, and identify the ways in which these have been challenged by the crisis. My discussion here focuses on four key elements of this regime – the close intertwining of public and private actors in opaque transnational networks, the reliance on the principle of self-regulation, the key role of private experts and expertise, and the movement towards harmonization of financial law and regulation. The paper then turns to an attempt to evaluate the potential impact of the financial crisis on each of these elements and their inter-relationships. I suggest that, in response to the crisis, we are seeing a pattern of increasing assertions of public/ state authority in an attempt to rework the balance between the power of public and private actors as part of a restructuring of the regime of financial law and regulation. These moves have not displaced the centrality of hybrid governance but have begun to shift the dynamics within its practice, generating real disruptions in the pre-crisis regime of financial law. They have introduced new sources of pluralism, new tensions between national and international legal and regulatory projects, and presented new constraints and challenges for private actors intent on shaping financial law and practice. The substance of financial law in the coming years will be determined by the ways in which these political dynamics play out. This paper, then, focuses on the political structures and dynamics that shape financial law. While there is some discussion of substantive principles and rules, the emphasis is on the political and institutional relationships through which law is made and implemented.

1. Hybrid Governance and Contemporary Global Capitalism The practice of “hybrid” governance – the subtle mixing of public and private agents in the making and enforcing of law and regulation – plays a key role in

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contemporary capitalism. Its role has been highlighted by three distinct literatures. As Levi-Faur usefully argues, the structure of political and economic power that has emerged over the past three decades at the national and global levels is best understood as “regulatory capitalism”.1 In the place of earlier debates regarding the “growth” or “retreat” of the state, this conception denotes a particular set of structures of governance and dynamics of rule. Regulatory capitalism is based on an understanding of the relationship between the state and non-state actors (especially business and markets): states have retained many of their capacities to shape the political economy, but encourage private agents and institutions to play a more active role in the actual development, interpretation, and enforcement of the legal and regulatory rules through which the contemporary political economy is governed.2 This structure of governance generates networks that link public and private actors in close relationships of power, interest, and ideology, and these networks in turn play a decisive role in the development and implementation of legal and regulatory norms and rules. At the same time, scholars of international political economy (IPE) have noted the central role that hybrid governance often plays in contemporary capitalism as a global or transnational system.3 The same pattern of cooperative relationships between private and public actors is especially prominent in areas where the providers and subjects of regulation operate simultaneously within and across borders, and where the speed of economic flows and pace of innovation is especially heightened. IPE scholarship has added to this form of analysis an emphasis on the key role of national and transnational networks that link public and private actors around common goals, projects, and understandings and through this actuate the system of hybrid governance in particular issue areas. A third, emerging literature on law and global political economy emphasizes the role of these networks in bringing together “public” and “private” and in providing the central context to observe the actual workings of “hybridity”.4 These literatures, then, point us in the same direction by highlighting – from different directions 1. 2.

3.

4.

David Levi-Faur, ‘The Global Diffusion of Regulatory Capitalism’, 598 Annals of the American Academy of Political and Social Science (2005) 12-32. John Braithwaite, ‘Neoliberalism or Regulatory Capitalism’, RegNet Occassional Paper No. 5, Regulatory Institutions Network, Australian National University (2005) and Alasdair Roberts, The Logic of Discipline: Global Capitalism and the Architecture of Government (Oxford University Press, 2010). A. Claire Cutler, Virginia Haufler and Tony Porter (eds.), Private Authority and International Affairs (State University of New York Press: Albany, 1999), Jean-Christophe Graz and Andreas Nolke (eds.), Transnational Private Governance and Its Limits (Routledge: Abingdon, 2008) and Rodney Bruce Hall and Thomas J. Biersteker (eds.), The Emergence of Private Authority in Global Governance (Cambridge University Press, 2002). Gralf-Peter Calliess and Peer Zumbansen, Rough Consensus and Running Code: A Theory of Transnational Private Law (Hart Publishing: Oxford, 2010), Sol Picciotto, ‘Regulatory Networks and Global Governance’, W.G. Hart Legal Workshop, Institute of Advanced Legal

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– the crucial role of hybrid networks of public and private agents in driving the governance of contemporary global capitalism.5 But the discussion of hybrid governance needs to be situated more clearly in the context of three structural features of contemporary transnational capitalism, which help determine the shape and substance of the relationships of power and authority that constitute hybrid governance. These features are often noted though not theorized enough in the existing literature, and they are essential to understanding the context of hybrid governance in global finance: 1. The transnational spaces that define the global economy, in many if not most cases, were first created by the political, legal, and regulatory choices of powerful states, but left to private actors to populate and structure. The latter has been accomplished at the initiative and with the direction of business firms, associations, and professionals (lawyers, accountants, etc.) working through and around existing but often weak political structures.6 Examples of this process abound in areas such as financial innovation, infrastructure and extractive industry investments, the creation of product production chains, and commercial law practice.7 To an important degree, the governance practices of regulatory capitalism at the international level develop as responses to the emergence of these kinds of transnational spaces. But this marks them at the outset with a set of tensions and inequalities. Private actors have already structured these spaces around practices that embody a certain set of norms, rules, and priorities, to which regulatory structures have to adjust if not fully accept.8 Networks of public and private actors often grow out of these intersections, and can help manage the different priorities, but they are often embedded in structured spaces already defined by private actors. 2. Second, in key areas of contemporary transnational capitalism – finance, resource exploration, law and accounting – these spaces are partially constituted by certain sorts of knowledge or expertise.9 It is not simply that certain kinds of expertise are necessary to understand a particular industry or practice, but that this expertise helps to create the very industries, conglomerations of property rights, and forms of contracting that define the field that becomes the object of regulatory projects. The world of derivates and collateralized debt obligations,10 transnational money markets,11 auditing practices, forms of biotechnology, and Studies, University of London (2006), and Saskia Sassen, Territory-Authority-Rights (Princeton University Press, 2006). 5. Gunnar Folke Schuppert (ed.), Global Governance and the Role of Non-State Actors (Nomos: Baden-Baden, 2006). 6. Sassen, Territory-Authority-Rights, supra note 4. 7. John Braithwaite and Peter Drahos, Global Business Regulation (Cambridge University Press, 2000). 8. Susan Strange, The Retreat of the State (Cambridge University Press, 1996). 9. Sigrid Quack, ‘Law, Expertise and Legitimacy in Transnational Economic Governance: An Introduction’, 8 Socio-Economic Review (2010) 3-16. 10. John Cassidy, How Markets Fail: The Logic of Economic Calamities (Farrar, Straus & Giroux: New York, 2009) and Gillian Tett, Fool’s Gold (Free Press: New York, 2009). 11. Tony Porter, ‘Risk Models and Transnational Governance in the Global Financial Crisis: The

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commercial contracting and dispute resolution structures12 are just some of the major examples of this phenomenon. Control over these forms of expertise, then, is a key part of any actor’s ability to exert regulatory authority over transnational economic spaces. Over the past three decades much of this expertise has been housed in, and indeed has been created by, the private agents which have created the markets and industries in the first place. Where there exists significant and potentially independent academic expertise in the particular area, such as finance, accounting, commercial law, and the biological sciences, the same private actors have demonstrated the ability to enroll much of it to advance their own projects and understandings. The production and reproduction of such expert knowledge, then, is embedded in the same already-structured spaces whose rules and priorities have often been defined prior to the involvement of public agents attempting to govern the same spaces. 3. The third feature is the particular geo-political-economic context in which this transnational order has emerged. The major private commercial interests, expert communities, and regulatory networks in this system have flourished in the context of the advance of a political economic project centred on the opening of domestic and international markets, the deepening of trade and investment links between states, and the restructuring of states into what Philip Cerny has called “competition states,” dedicated to the advancing of national interests through strategic immersion in transnational economic relationships.13 This project has been led by the major states of the “Global North,” centered on the US with the support of key public and private actors from the UK, EU, Japan, and Australia, and has underpinned much of the resulting structures of contemporary capitalism and hybrid regulatory governance.14 When these structures are consolidated, hybrid governance practices and regimes have developed a degree of autonomy and authority in relationship to the specific geo-political context of their origins. But a significant change in geo-political power relationships and dominant projects may have the potential to “pull the rug out from under” these communities and spaces, and it remains to be seen how resilient they would be under such conditions.

Together, these structural features set the context for the practices of hybrid governance. These practices have emerged as states and international networks of regulators have identified key problems for particular sectors, developed legal and regulatory projects to govern these sectors, and then become increasingly Cases of Basel II and Credit Rating Agencies’, in Eric Helleiner, Stefano Pagliari and Hubert Zimmermann (eds.), Global Finance in Crisis (Routledge: London, 2010) 56-73. 12. Vokmar Gessner (ed.), Contractual Certainty in International Trade (Hart Publishers: Oxford, 2009). 13. See Philip G. Cerny, Rethinking World Politics: A Theory of Transnational Neopluralism (Oxford University Press, 2010) for the most recent statement of his argument. 14. Sassen, Territory-Authority-Rights , supra note 4. The term ‘Global North’, which I will use in the subsequent discussions, is taken from Terence Halliday and Bruce Carruthers, Bankrupt: Global Lawmaking and Systemic Financial Crisis (Stanford University Press, 2009).

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intertwined with the private networks of actors and experts that had been created prior to or simultaneously with the regulatory networks. The public-private networks that drive these regimes can be seen as “transnational policy communities” which work in formal and informal contexts to pursue the combined aims of advancing the development of, while ensuring some sort of oversight regarding, key commercial spaces.15 There are always tensions and contests for power within these policy communities, between public and private agents and amongst groups of public and private agents, and the substance of law and regulation reflect the ways in which these contests are resolved. As such, both public and private power are needed to mobilize effective legal and regulatory governance projects.16 The crucial analytical question, then, is to define the nature and sources of “power” in the making of transnational hybrid law and regulation. As a first step, I am using the terms “law” and “regulation” in broad senses, to refer to the rules and practices that both enable and limit the functioning of specific markets and the institutions/actors within each market. These rules and practices refer to the definition of property rights, the structures of contracts, accepted patterns of business operation, the typical patterns of public policy, and systems of dispute resolution. They determine who is eligible to do business in a given market, how business will be conducted, and how public actors will use their authority in relation to market agents. While the determination of the boundaries and differences between “law” and “regulation” may be central to the answering of certain questions, I do not spend time on the issue in this context. In particular, as will be clear, the distinction has been neither particularly clear nor foundational in the arena of global finance. “Power,” then, is the ability of both public and private agents to shape the substance and implementation of these rules and practices and thus to ultimately shape both the structure of the market and specific outcomes within a given market space. In this sense, I understand power in hybrid governance as both relational and structural, but focus mostly on the latter.17 How do the dynamics of power work out in transnational hybrid governance? I suggest that there is a fundamental imbalance of resources that works generally to the benefit of private corporate agents in the transnational context. These agents have a number of structural advantages: 15. Edward S. Cohen, ‘Constructing Power Through Law: Private Law Pluralism and Harmonization in the Global Political Economy’, 15 Review of International Political Economy (2008) 770-799, and Eleni Tsingou, ‘Regulatory Reactions to the Global Credit Crisis: Analyzing a Policy Community Under Stress, in Eric Helleiner, Stefano Pagliari, and Hubert Zimmermann (eds.), Global Finance in Crisis: The Politics of International Regulatory Change (Routledge: London, 2010) 21-36. 16. Dirk Lehmkuhl, ‘Control Modes in the Age of Transnational Governance’, 30 Law & Policy (2008) 336-363. 17. Eric Helleiner, ‘Structural Power in International Monetary Relations’, European University Institute (EUI) Working Paper RSCAS 2005/10 (2005).

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In most cases, they have used their opportunities to create transnational markets to embed in these spaces the legal practices and understandings that define acceptable action and set the contours of the opportunities and problems public actors respond to and the options available to them. Private actors are able to create and/or enroll the forms of legal and commercial expertise central to the operation of transnational markets and spaces. Public agents are often if not usually in a reactive position, forced to rely on the same expertise in making and enforcing law and regulation. Private corporate actors control key economic resources – capital in its many forms, including investment, and credit – on which states rely for their own goals. Private transnational actors can use strategies of legal and regulatory arbitrage to define their own terms of action.

Public actors, primarily states, do have their own resources. The ultimate legitimacy and enforcement of legal rules in transnational commerce still depends to a great degree on states (acting alone or through international institutions), a fact of which private agents are acutely aware. In some circumstances, states can and do mobilize substantial expertise of their own, though this is often drawn from the same professions – economics, accounting, law – which private actors have done much to enroll. States have substantial fiscal and monetary resources, including the ability to create money/credit through central banks. And states can use forms of international collaboration – informally and through institutions – to combat private arbitrage strategies. For the most part, however, these resources have been used in a reactive manner, and subject to the terms of practices already defined by private agents.18 To be sure, as I have noted, in most transnational commercial fields private and public agents work together to “govern” markets. Indeed, for some scholars of the question it no longer pays to distinguish “public” and “private” in the operation of transnational policy communities, as they tend to meld together in practice.19 While there are many contexts in which this is accurate, I believe that the “public”/”private” distinction must remain central to the analysis of contemporary forms of (hybrid) governance, for two general reasons. Empirically, a tension between public (especially state) and private actors can be found in many fields of transnational commercial governance. While recognizing the need to cooperate, actors on both sides of this divide often have different projects, priorities, and understandings that can and do lead to important tensions and conflicts in contexts where a policy community is strained. In such conditions, a 18. David L. Levy and Aseem Prakash, ‘Bargains Old and New: Multinational Corporations in Global Governance’, 5 Business and Politics (2003) 131-150. 19. Tsingou, ‘Regulatory Reactions’, supra note 15.

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dynamic is often generated in which the relative balance of power between public and private agents is reconstructed, with important implications for the substance of law and regulation. Normatively, state actors are often the only agents with adequate resources to challenge the attempts of private corporate agents to create structures of law and regulation that protect private interests at the expense of the interests of the public broadly construed. This is particularly important in an area such as global finance, where civil society actors have proven to have little presence and few resources to counter the influence of private agents. I am aware of the great ambiguity in the terms “public” and “private” (and in the general equation of “public” with “state” actors), and the case of global financial governance will illustrate this in some detail. But I retain this framework because it remains essential to explaining and evaluating the patterns of hybrid governance in the contemporary global economy. To sum up this section, then, key structural features in transnational hybrid governance regimes have worked to privilege the power of private actors over public actors in the transnational policy communities in which legal rules and practices are constructed. As long as the structural conditions described above are in place, public agents tend respond to practices of property, contract, and credit defined by private actors, to depend on private actors for practical and legal expertise, and find it in their interests to let the latter drive the legal practice of most economic sectors. But this balance can be disrupted by emergent trends within a sector and/or by crises which open up opportunities for actors to reconfigure their relationships while providing access to previously excluded interests. In the process, public actors can assert resources and authority in ways that re-configure the overall balance of power within such hybrid policy communities. It remains to be seen, however, whether public actors can accomplish this, or whether their responses to change remain limited by the continuing power of private corporate interests.

2. Global Financial Law and Regulation before the Crisis The world of contemporary global finance began to take shape in the late 1970s, and was the result and product of a number of key political, economic, and technological changes.20 In the following discussion, I break down the analysis of pre-crisis global finance into two dimensions. First, I examine the emergence and basic features of global finance, in light of the structural features of contemporary global capitalism discussed above. Second, I analyze in some detail the nature of the regime of hybrid governance that emerged by the 1990s to provide legal and 20. This account is based generally on Tony Porter, Globalization and Finance (Polity Press: Cambridge, 2005), Sassen, Territory-Authority-Rights, supra note 4, as well as the sources cited below.

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regulatory structure to the global financial order, with an emphasis on the power of private actors in this regime. In this context, I explore four key dimensions of pre-crisis hybrid governance, indicate their linkages to the structural conditions of contemporary capitalism, and thus establish a baseline for evaluating the significance of the global financial crisis for the future of hybrid governance in global finance.

2.1. The Challenge of Contemporary Global Finance The world of global finance as we know it began with the decisions of major states to open up new spaces and flexibilities for financial markets that had long been tightly controlled by law and regulation. The pressures on existing state regulatory structures had been developing since the 1960s as the result of financial market innovation, but the real opening for global financial markets did not come until the policy changes beginning in the late 1970s. The collapse of the classic Bretton Woods system, the “Big Bang” that opened up the City of London as a source of global financial innovation, and the gradual process of reforms that dismantled the New Deal system of financial regulation in the US all created a context in which capital could flow much more freely across borders, financial institutions could develop new international structures of operation, and limits on the types of financial products these institutions could offer were lifted.21 These policy changes, moreover, were driven by the attempts of the US and UK to use the real and potential power of their respective financial industries to advance their national power in the changing global economy. Indeed, one central result of the new market openings was the (re-)emergence of London and New York as centres of unmatched financial resources, expertise, and power – able to operate and generate significant profits increasingly independently from the “national” economies to which they were ostensibly tied – enabling their respective banking and investment powerhouses to create, extend, and transform markets of transnational reach and coordination.22 At the same time, these new spaces, markets, and institutions were constituted and made possible by new kinds technologies and knowledges centered in the financial markets themselves. In particular, the combination of advanced and globally-linked computer networking, new “sciences” of financial and risk analysis, and new legal techniques enabled global financial institutions to rapidly invent and disperse financial innovations, create new markets and institutions, and generate new sources of profit while promising the ability to carefully monitor and control the potential risk of the new markets. Together, these developments 21. Ethan Kapstein, Governing the Global Economy: International Finance and the State (Harvard University Press, 1994). 22. Sassen, Territory-Authority-Rights, supra note 5, Herman Schwartz, Subprime Crisis: American Power, Global Capital and the Housing Bubble (Cornell University Press, 2009).

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led to the constitution of a deeply interconnected, rapidly changing, and increasingly wealthy global financial industry, which was able to use these technologies to structure the assumptions, practices, and power relationships through private initiative. While the choices of states opened new spaces for and encouraged the growth of global finance, then, the industry rapidly developed sources of power and expertise that states found it difficult to control. Indeed, many observers consider the spread of transnational financial institutions, markets, and actors to be the definitive feature of the past two decades in global capitalism, to the point that this period has been termed one of “finance capitalism”.23 It is certainly accurate to suggest that the dynamics noted above – the creation of transnational spaces by private actors and the central role of expertise in constituting markets and spaces – have been most systematically and deeply developed in the area of global finance. As such, contemporary global finance posed a number of new and complex challenges for financial law and regulation at the domestic and international levels. A first group of challenges came directly from the markets themselves. The innovation unleashed by the new worlds of global finance created all sorts of relationships, strategies, institutions, and products for which regulators had no established rules or tools adequate to the tasks of oversight or control. Closely connected to this phenomenon, regulators quickly began to fall behind markets in their ability to match the technical analysis and capacities of private actors in these new practices. Rapidly increasing private salaries and neglect of key agencies by legislatures and executives only exacerbated this problem. At the same time, while capable of significant wealth creation and central to the competitive positions of the UK and US, emerging global financial practices were subject to regular and significant crises – the Third World debt crisis, the S & L crisis in the US, the near collapse of Long Term Capital Management, the Asian financial meltdown of 1997-98, the dot-com boom and bust, the Enron and related collapses – that threatened to undermine an increasingly interconnected transnational financial system.24 These kinds of crises demonstrated that states were increasingly dependent for their own economic stability on an emerging set of financial practices which they seemed unable to fully understand let alone control. As regulators attempted to figure out responses to these developments, though, they faced a second group of challenges growing out of the practices of state power itself. In the US, the division of authority over financial markets inhibited cohesive regulatory responses. Internationally, the existing structure of institutions and rules – the IMF system, the Basel institutions for central bank cooperation, OECD processes, etc. – proved inadequate as a vehicle to govern the new markets, 23. John Cioffi, Public Law and Private Power: Corporate Governance Reform in the Age of Finance Capitalism (Cornell University Press, 2010). 24. Schwartz, Subprime Crisis, supra note 22.

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but the creation of new coordinating institutions was hampered by differences in national interests and regulatory style and ideology among the major states. Perhaps most importantly, global finance became increasingly central to political economic power in the US and UK, for whom a growing emphasis on “free markets” and “self-regulation” as key legal and regulatory principles served to advance the interests of national political economic power. The construction of a regulatory framework for global finance would require ways to overcome the tensions between the promotion of finance and the management of risk, competing national interests, and the limits of existing state and international capacity. In these dimensions, then, the evolution of global finance matches the broader dynamics of contemporary capitalism outlined in the previous section. But there is unique dimension to the dynamics of private-public power relationships in the area of finance. The creation and control of money is a central element of “stateness” (or sovereignty) as it has been understood in the modern era. When banks/financial institutions are empowered to create credit, they are acting with the implicit support and “aura” of the state and are in an important sense endowing these relationships with public authority. They are on the one hand creating new forms of property rights, the holders of which then have claims on the state and thus on the actions of regulatory actors. On the other hand, the creation of credit – the central mechanism of liquidity in a capitalist economy – becomes even more difficult for the state to control, rendering it particularly dependent on the choices of private actors for the stability of the national and global economy.25 In this sense, private agents in global finance have particularly powerful resources to mobilize in their dealings with states, further complicating the challenges of regulation and the dynamics of power within public-private regulatory networks. As transnational hybrid governance has emerged in finance, it depends on a context in which financial and legal expertise and authority is used to “already-structure” and imprint on these spaces forms of rights, obligations, and power that may derive from public authority but face it in an ambiguous way.

2.2. The Emergence of Transnational Legal and Regulatory Regimes The elements of a system of financial governance did emerge by the 1990s, and it was based on four fundamental elements. The first was the stabilization of a set of formal and informal transnational networks and institutions that brought together public and private actors from key parts of the global north.26 These began primarily as inter-governmental organizations of regulatory officials – the Basel Committee on Banking Supervision (BCBS), the Bank for International 25. Duncan Wigan, ‘Credit Risk Transfer and Crunches: Global Finance Victorious or Vanquished?’, 15 New Political Economy (2010) 107-123. 26. Anne Marie Slaughter, A New World Order (Princeton University Press, 2004).

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Settlements (BIS), the International Organization of Securities Commissioners (IOSCO), etc. – along with more informal regulatory cooperation. Here, we have an example of a phenomenon highlighted by Saskia Sassen, the use of pre-existing institutions to advance a fundamentally different regime or project for governance.27 By the later 1990s, the establishment of the Financial Stability Forum under the aegis of the G-7, working along with the International Monetary Fund (IMF), added an additional supervisor or coordinating layer to this structure. But this set of regimes also came to develop and work through extensive coordination with networks of key private actors – large financial institutions, key financial industry organizations (the Institute of International Finance (IIF), the International Swaps and Derivatives Association (ISDA), and formal (i.e. the Group of Thirty) and informal groups of academic and professional experts – that had already emerged as corporate and expert actors attempted to structure transnational spaces on their own initiative.28 Together, this “transnational policy network”29 was characterized by significant cooperation among, and movement between, the public and private sectors, participation restricted to only the most influential industry actors and public sector regulators, and little oversight from public authorities – nationally or internationally – outside of the complex and opaque world of finance. This pattern of entwined public and private networking dominated financial law and regulation before the crisis, but left open the question of which actors would dominate the substance of financial law. The second key element was the increasing role of industry self-regulation as a guidepost for financial governance.30 This came in two related forms. One was the incorporation of industry-developed standards – and in some cases the solicitation of such standards – as the basis of standards regulators would promote and enforce in that particular sector or industry. The most well known example of this is the provision in the “Basel II” agreements, developed by the BCBS in 2004, which placed substantial reliance on the internal risk-assessment models of the wealthiest and most “sophisticated” global banks as defining the standards that all banks should follow to ensure financial soundness.31 But there are other cases of this as well, such as the standards developed by the private International Auditing and Assurance Standards Board (IAASB) for the auditing of public forms, which were promoted as global standards by the G7 beginning in the 27. Sassen, Territory-Authority-Rights, supra note 4. 28. Barry Eichengreen, ‘Governing Global Financial Markets: International Responses to the Hedge-Fund Problem’ in Miles Kahler and David Lake (eds.), Governance in a Global Economy (Princeton University Press, 2003) 168-198. 29. Tsingou, ‘Regulatory Reactions’, supra note 15. 30. Layna Mosely, ‘Private Governance for the Public Good? Exploring Private Sector Participation in Global Financial Regulation’, in Helen Milner and Andrew Moravcsik (eds.), Power, Interdependence and Non-State Actors in World Politics (Princeton University Press, 2009) 126-145. 31. Porter, ‘Risk Models’, supra note 11.

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late 1990s.32 The other form of the emphasis on self-regulation was more or less direct – the delegation of responsibility for the development and enforcement of standards to a private sector institution. Most important in this area is the role of ISDA in developing the standard form contracts – especially the ISDA “Master Agreement” – that have governed the creation and trade in derivatives since the late 1990s.33 This emphasis on self-regulation had three major effects: it deepened the role and increased the weight of private actors in the increasingly intertwined public-private networks already described, allowed these actors to gain further initiative in creating structures of property rights and claims, and ensured that the substance of the emerging standards and rules facilitated the aims and understandings of the financial industry itself. The third element of these regimes was the unique role played by financial expertise, much of it located outside of public institutions. By the late 1990s, it had become clear that the explosion of financial innovation among private firms was quickly outstripping the ability of most policy-makers to understand what was going on in the various markets. In addition, a good deal of this innovation was reliant on fast-developing academic theory in the area of finance, which was closely monitored by and quickly integrated into the strategies of banking and investment firms. This expertise promised at the same time to identify heretofore unknown profit opportunities, while ensuring that risk was distributed throughout the system to those institutions most able to understand and manage it. Increased reliance on this form of knowledge brought key experts into the relatively small and tight-knit networks of those public and private actors with the ability to understand and recognize their importance.34 The inevitable effect, though, was to further shift the balance of power in the direction of the private agents in these networks, and support the growing inclination of regulators to defer to the judgments of these agents in determining what kinds of strategies best promoted stability and growth in the global financial order. The fourth element in the pre-crisis regime was a complex dialectic of legal competition and harmonization. The most important institutions and markets in the financial system were based in London and New York, and structured their organizations, strategies, and contracts through the legal regimes of these two jurisdictions. These included not only the better known ISDA standard contracts, but the whole range of contracting, trading, and investment practices that came 32. Eric Helleiner and Stefano Pagliari, ‘Crisis and the Reform of International Financial Regulation’, in Eric Helleiner, Stefano Pagliari and Hubert Zimmermann (eds.), Global Finance in Crisis: The Politics of International Regulatory Change (Routledge: London, 2010) 1-17. 33. Glenn Morgan, ‘Market Formation and Governance in International Financial Markets: The Case of OTC Derivatives’, 61 Human Relations (2008) 637-660. 34. See the accounts in Cassidy, How Markets Fail, supra note 10 and Yves Smith, ECONned (Palgrave Macmillan: New York, 2010).

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to define the world of global finance.35 As a result, much of the substance of international financial law in practice derived from these two jurisdictions, and the general deference of regulators to private initiative meant that these legal regimes played a central role in defining the principles, rules, and understandings that shaped public regulation of finance as well. In multilateral regulatory contexts such as Basle/BCBS and the OECD, the UK and US governments actively promoted the legal regimes of their respective financial capitals, supplementing and supporting the activities of their own private institutions.36 Private sector actors, in turn, regularly used contracting and capital-raising strategies in a flexible way to take advantage of the differences of regime to advance profit-maximizing strategies. From the perspective of non-Anglo-American jurisdictions, however, both London and New York law shared common principles of financial structure and practice that were spreading rapidly around the globe. Indeed, the Basel agreements, the spread of standard ISDA contracts, the movement for a unitary global accounting regime, and similar contemporary processes amounted to a sustained project of legal harmonization in finance, driven by the public/private networks discussed above and which proceeded in tandem with continuing plurality and competition. These two dynamics were held together, however, by transnational networks dedicated to advancing and securing the common features of an Anglo-American model of financial law and practice. Here is another instance of the complex interplay of public and private power in the political economy of global finance. By encouraging the “private” setting of rules and standards in the marketplace, US and UK officials worked indirectly to advance the domination of financial law by their own national models, helping to ensure their power as states in the global financial order. Together, this regime provided a seemingly reasonable response to the challenges facing public authorities in the context of the quickly changing global financial system.37 Public authorities at the national level seemed unable to match the expertise of private agents and their policy tools seemed to consistently fall behind the constant flood of new financial inventions, markets, and strategies, but needed to develop some framework for stabilizing the increasingly risky and interconnected global financial markets. In response, the construction of a variety of formal and informal transnational policy networks – working in close collabo35. John Flood, ‘Capital Markets: Those Who Can and Cannot Do the Purest Global Law Markets’, in Richard Appelbaum, William Felstiner and Volkmar Gessner (eds.), Rules and Networks: The Legal Culture of Global Business Transactions (Hart Publishing: Oxford, 2001) 249-272. 36. In the US case, the situation is a bit more complex, as the regimes established in New York law are closely connected with the legal structures established by national regulatory agencies – especially the Securities and Exchange Commission (SEC) in Washington. 37. Louis W. Pauly, ‘Global Finance, Political Authority, and the Problem of Legitimation’, in Robert Bruce Hall and Thomas J. Biersteker (eds.), The Emergence of Private Authority in Global Governance (Cambridge University Press, 2002) 76-90.

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ration with the key financial institutions that generated new markets and would best understand their operation – provided a workable approach to governance. The inevitable result of these kinds of arrangements, as Picciotto and Haines emphasize, was the increasing centrality of the interests, power, and understandings of private actors.38 But this proved to be an advantage as well. Increasing deference and delegation to private agents fit well with the broad emphasis on “self-regulation” and “collaborative” regulation that dominated the understandings of the role of the state during this era. As importantly, these regimes relied on the active promotion of models of financial practice and regulatory governance that reflected the norms and interests of the two states most central to this system – the US and UK. In turn, these models received the imprimatur of the leading financial “experts” who were at the same time key to the construction of these markets and practices. All told, the combination of elements or principles of the pre-2007 global financial order seemed to many to solve the governance dilemmas posed by this regime, while advancing the interests of the key public and private actors involved and protecting this order from any significant political economic challenge. This proved especially appealing, as financial institutions, markets, and power were increasingly driving the larger global political economy. The reforms of the 1970s onward had opened up the ability of financial agents to mobilize unprecedented amounts of private capital, which seemed the key to increased globalization and the rising levels of wealth and innovation it promised (and seemed to be delivering). The generation of this capital and credit, as Wigan points out, translated into immense new powers for financial institutions and markets, which faced states in most cases as faits accompli. It seemed fortunate that this complex system could be effectively governed through the delegation of power to hybrid networks of participants and regulators in which these same institutions and markets could be relied upon to secure order and efficiency.

3. The Financial Crisis: Immediate Sources The broad outlines of the global financial crisis that began in 2007 are now widely known, though there remain important debates concerning the weight of the different contributing factors. In the widest perspective, the conditions for the crisis were set up by years of massive financial flows from surplus-generating export economies (China and East Asia, Japan, Germany) into the consistent deficit-generating importing and consuming economies, especially the US but also the UK and other middle-sized economies. For observers such as Martin Wolf, 38. Sol Picciotto and Jason Haines, ‘Regulating Global Financial Markets’ 26 Journal of Law and Society (1999) 351-368.

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such flows over-determined the crisis, as they inevitably create financial bubbles which eventually burst and destroy the credit systems of the host countries.39 In the deeply interconnected global financial system, it was inevitable that this credit crisis would then spread (if unevenly) throughout the major economies. But not all “bursting bubbles” generate the kind of systemic crisis we have seen since 2008. While the global imbalances of capital flows were essential to the form and timing of the crisis, then, most analysts also point to the need to emphasize the specific features of the financial political economy in the US and (to a lesser extent) the UK. These states were at the centre of the crisis, were the base from which it spread around the global system, and key elements of contemporary US and UK financial practices were crucial to the depth and breadth of its impact. Beginning in the 1980s and taking off in the 1990s, the US financial system had been revolutionized as a result of the tearing down of the legal and weakening of the regulatory frameworks that unleashed a variety of restructurings and innovation.40 The instability that this could cause had already become apparent in the “Dot Com” boom and bust of the late 1990s and the corporate finance scandals (most famously involving Enron) in the early 2000s.41 But the real dynamics of the ultimate crisis were linked to the changing market for home mortgage financing in the ensuing years (although the origin of the process dates back to the later 1990s). Flush with incoming investment flows and viewing housing values as invulnerable to sharp declines, major banks and related financial institutions began creating and disseminating new mortgage-based credit products as tools for generating large and quick profits. In some areas, this involved offering mortgages at ever easier terms to ever more marginal borrowers, encouraging housing speculation and filling their loan portfolios with increasingly unreliable loans. But the mortgage boom spread beyond marginal buyers, as banks encouraged all sorts of speculative housing construction and purchasing in order to sell more products. By the middle of the decade, in turn, most mortgage loans were sold off quickly by their originators to intermediaries who would package and sell them as mortgage-backed securities (more on that presently), leaving the originators less and less concerned about the 39. Martin Wolf, Fixing Global Finance (Expanded edn. Johns Hopkins University Press, 2010), a similar emphasis is made by Menzie D. Chinn and Jeffry A. Frieden, Lost Decades (W.W. Norton: New York, 2011). For a more critical approach, which emphasizes the role of weak regulatory frameworks rather than imbalances, see Claudio Borio and Piti Disyatat, ‘Global Imbalances and the Financial Crisis: Reassessing the Role of International Finance’, 5 Asian Economic Policy Review (2010) 198-216. 40. This discussion is only meant to be a survey of a set of complex dynamics. For more in depth analyses of the crisis, see Cassidy, Why Markets Fail, supra note 10, Chinn and Frieden, Lost Decades, supra note 39, Raghuram Rajan, Fault Lines (Princeton University Press, 2010), Schwartz, Subprime Crisis, supra note 22, Smith, ECONned, supra note 34, and Tett, Fool’s Gold, supra note 10. 41. Bethany McLean and Peter Elkind, The Smartest Guys in the Room: The Amazing Rise and Scandalous Fall of Enron (Penguin: New York, 2003).

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credit-worthiness of the loans themselves. As finance kept flowing in to the US system and a fever took on the housing market, the process accelerated until even some voices within the financial system began worrying about the formation of a bubble.42 The bubble finally burst in 2007, bringing with it declining housing values, waves of borrowers defaulting on mortgages and subsequent foreclosures, and thus severe damage to the balance sheets of most major American financial institutions. A similar process took place in the UK, Iceland, Ireland, Spain, and other countries that had also experienced property bubbles. This crisis took on larger and more dangerous dimensions, however, because of the range of financial innovation developed on the back of the mortgage market. During the 2000s the bundling and securitization of mortgage loans had become the fastest growing and perhaps dominant sector of the asset-backed securities market. Mortgage-backed securities (MBS) were bought and sold by every variety of financial institution and investment fund not only in the US, but throughout the global financial system. Crucial to this process was the establishment of a “common wisdom” which asserted that such securities were extremely safe investments, almost immune from the fluctuations in value of other financial instruments. This sentiment was cultivated by sellers and ratified by the fact that “everyone else” was buying them, but also had deeper sources. The dominant view in financial economics – a discipline that had exploded since the 1980s and was deeply integrated into the self-understanding of market participants – was that MBS were reliable investments because housing and property values would never suffer severe declines and (more generally) because markets are inherently efficient and thus correctly price all financial instruments. This understanding, in turn, was incorporated in and reinforced by the consensus among the major credit rating agencies, which consistently granted MBS triple-A ratings, implying the lowest level of risk possible in an investment vehicle. (Of course, there were all sorts of issues related to conflicts of interests in the making of these ratings. Moreover, complex financial structuring of MBS tended to hide the role of highrisk mortgages in the “bundles” on which the securities were based.) To add fuel to the potential fire, major insurance institutions and banks began selling creditdefault swaps (CDS, or insurance on the MBS) to purchasers of MBS, ensuring that they would be compensated for any losses in the values of these securities. This market itself was supported by the then common wisdom concerning the stability and reliability of the securities themselves. By 2007, trillions of dollars in MBS and CDS were on the balance sheets of financial institutions and investors around the globe, the value of which was 42. A good example of this is the case of Raghuram G. Rajan, who raised such questions in 2005 in his capacity as then chief economist at the IMF. For his more retrospective and developed analysis of the crisis, see Rajan, supra note 40.

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based on the continued increase in value of residential (and some commercial) real estate in the United States. As a result, the collapse of the real estate bubble meant not a problem contained to the US housing market, but threatened the solvency of the global financial system and many of its key parts by generated a crisis of liquidity and solvency – and a resulting freezing of credit – that brought to the US and Europe the deepest recession since the 1930s. The implications for the legal and regulatory regimes of global finance seemed clear. The crisis demonstrated that this set of arrangements and principles could not deliver on its main promise, to provide stability and control in the inherently risky context of closely intertwined and fast-moving financial markets. As it turned out, no key institution or actors within the regime fully understood the nature of the risk and instability that was being created or had anticipated ways to deal effectively with a large-scale crisis of credit and liquidity. Moreover, the crisis showed both that the “consensus” financial expertise that drove the system was fundamentally flawed, and that some of the very mechanisms of self-regulation that were relied upon to provide stability – i.e. Basel II’s use of the banks internal risk assessment models – in fact proved pro-cyclical, worsening the instability once it emerged. As the depth of the problem became clear, it seemed to many that fundamental change was necessary and likely in the structure of financial law and regulation.

4. The Financial Crisis: Initial Responses and Outcomes From the Fall of 2007 through much of 2008, policy-makers in the US and Europe – and at multilateral institutions such as Basel, the G-7, and OECD – scrambled to understand the crisis and develop clear responses.43 Initial uncertainty regarding the nature and depth of the crisis was soon replaced by a sense of gravity as credit markets froze and major financial institutions went bankrupt or were on the verge of insolvency. In the US, months of wavering responses – intervention to save Bear Sterns but then letting Morgan Stanley fail – was replaced by intense activism on the part of the Department of the Treasury and Federal Reserve Bank.44 This new posture culminated in the enactment of the “TARP” (Troubled Asset Relief Program) program in October, 2008, which started out as a program to off-load “bad loans” from bank balance sheets but eventually focused on an agenda of recapitalizing and consolidating major financial institutions. Meanwhile, the Treasury and the Federal Reserve had already began – and then continued – a policy of injecting large sums of credit into the financial system more broadly, 43. For solid overviews of the policy responses, see Eric Helleiner, ’International Financial Reform After the Crisis: The Costs of Failure’, 9 Socio-Economic Review (2011) 568-573; Helleiner and Pagliari, ‘Crisis and the Reform’, supra note 32, and Tsingou, ‘Regulatory Reactions’, supra note 15. 44. Andrew Ross Sorkin, Too Big To Fail (Allen Lane: London, 2009).

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which aimed at stabilizing various financial institutions and specific financial markets (such as that for commercial credit). In the UK, the initial focus was on nationalizing and stabilizing failing financial institutions while also injecting more credit into the financial system.45 EU policy-responses were unstable, with deep disagreements between various states, conflict between the EU and the European Central Bank (ECB) which resisted any loosening of credit, attempts to stabilize certain banks through state guarantees (i.e. Ireland), and attempts to identify specific “bad actors” such as hedge fund speculators, accounting firms and practices, credit rating agencies, and auditors. At the multilateral level, halting attempts were made at the Basel Committee and G-7 to coordinate policy responses while some of the key structures of pre-crisis financial governance were re-evaluated. What have been the substantive outcomes of these responses? To this point, we can identify three major developments: 1. Substantial global imbalances in flows between creditor and debtor states were the enabling condition of the crisis, and to this point little has been done to successfully address these. The division between surplus-generating exporting states and deficit-plagued importing states shows no sign of weakening. Despite a general recognition of the impact of this problem and some small moves to realign currencies, disagreements over the cause of the problem – virtuous savers vs. artificial suppression of consumption, for example – and real differences of interest generated by imbalances have hampered any real progress towards a multi-lateral solution. Indeed, these differences continue to emerge in attempts to generate international responses to stabilize the financial system and plague a variety of regional (i.e. the EU) and bi-lateral (i.e. US and China) relationships at the heart of any reconstruction of the global economy. As a result, the initial promise many saw in the formation of the G-20 and associated institutions has faded.46 2. Moreover, an indirect result of the financial crisis was the acceleration of the shift of relative financial power and resources to surplus-generating export economies in Asia – especially China – as well as the sovereign wealth funds of major oil exporting states. While the core states of the global financial system suffered the brunt of the crisis, financial systems in the former types of states were much less implicated in the dynamic sectors of global finance and thus less vulnerable to their collapse. Moreover, the surplus-generating export states were able to sustain significant levels of economic growth while capital-importing states in the global centre suffered deep recessions. (The former also helped to sustain demand for 45. My discussion of UK policy responses here and below is based on George A. Walker, ‘Financial Crisis – UK Policy and Regulatory Response’, 44 The International Lawyer (2010) 751-789. 46. For an early presentation of this view, see Martin Wolf, “Why G20 Leaders Will Fail to Deal with the Big Challenge,” Financial Times, 31 March 2009, (visited 2 July 2012). See also Wolf Fixing Global Finance, supra note 39, at 193-214.

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Finnish Yearbook of International Law (Vol. 22, 2011) oil, gas, and other energy sources, helping to bolster the financial resources of energy-exporting states.) In the short term, these dynamics seem to have further embedded the imbalance of financial flows while complicating efforts to address the problem.47 3. By the end of 2011, on the other hand, it did seem that the efforts to inject capital into the financial system at national and international levels had succeeded for the moment in stabilizing and reconstituting the key institutions and markets in the global financial system. Infusions of capital, organized institutional rescues and/or consolidations, and moves to revive public confidence seem to have stopped the hemorrhaging of capital and allowed the remaining institutions to strengthen their balance sheets. This is particularly true in the US, where the redirection of the TARP funds and related policies focused directly at re-capitalizing the major banks and financial institutions, and to some degree in the UK. But much caution is in order here. On the one hand, the revival of bank health has not been accompanied by the kind of revival of lending and credit-creation many policy-makers had hoped for. Here, regulators seemed to have saved the basic structure of the system, only to be frustrated by the resulting continued power of financial actors to shape the terms of economic activity. On the other hand, it is not clear how deep and lasting the stability and liquidity of major financial firms will prove over time. There is still a large hangover of bad mortgage lending throughout the system, and key European banks seem particularly vulnerable to its continuing impact. The lack of much direct action to stabilize bank balance sheets, combined with the deeping impact of exposure to the emerging sovereign debt crises throughout the EU, raise serious and continuing questions for the stability of the global financial system. The looming impact of the Basel III regulations may indeed serve to intensify these problems.48 More generally, there has yet to be any clear reckoning with the structure and role of contemporary finance in the larger political economy of states and the international economic order more generally. Many risky financial practices continue to flourish, and it remains unclear exactly what dangers these pose for established and emergent financial institutions and markets.

5. Impact of the Crisis and Responses on Financial Law and Regulation What impact has the crisis and the initial responses had on the system of hybrid governance in global financial law and regulation? They have generated deep strains on the autonomy and legitimacy of hybrid policy networks and communities, which come from two major directions. On the one hand, the failure of 47. International Monetary Fund, How Did Emerging Markets Cope in the Crisis? (Washington DC, 2010), (visited 2 July 2012). 48. See the debate/conflict discussed in note 63 below.

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the financial governance system to provide stability and prevent financial panics has raised fundamental questions in the eyes of states and other public actors regarding the claims to expertise and responsibility on which the public-private networks have relied to secure their authority. This is the combined crisis of “political” and “pragmatic” legitimacy that Glenn Morgan has described well.49 At the same time, the crisis has coincided with – and to some extent advanced – the emergence of some states of the global south as key players in the governance of the global economy, as recognized in the new status of the G-20 and its related implications. Together, these developments have the potential to challenge the structural conditions under which transnational hybrid governance in finance has proliferated. In the following sections, I present an overview of the structural impact of the financial crisis to this point, organized around the four major features of the pre-crisis system of financial governance presented above. After the initial moves to shore up the basic stability of financial institutions and markets through the injection of major amounts of credit, policy-makers, industry actors, and experts began the task of rethinking and reshaping the framework of rules governing contemporary finance, in both its substantive and structural dimensions. To evaluate the changes that have occurred to this point, the analysis emphasizes two central dimensions of the previous structure of financial governance – the balance of private and public power, and the global distribution of financial power among major states. I argue that the structure of hybrid financial governance has been stressed by the growing assertiveness of public agents and institutions and the emergence of new sources of financial power, but retains much of its centrality in shaping the response to the crisis. The ability of many key hybrid policy communities and institutions to resist challenges to their power, I suggest, is rooted in the ways in structural and strategic power of private actors – particularly the control over credit, access to law and policy-making sites, and control over expertise – have enabled them to significantly shape the nature of the responses to the crisis. It remains to be seen, however, how these sources of private power will adapt to the changing structural conditions of global finance.

49. Glenn Morgan, ‘Legitimacy in Financial Markets: Credit Default Swaps in the Current Crisis’, 8 Socio-Economic Review (2010) 17-45 distinguishes between “political” legitimacy as a claim to expertise or representative-ness as a ground for exercising power, and “pragmatic” legitimacy as a claim to power based on the capacity to generate results – in this case, generating wealth and credit.

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5.1. The Relative Power of Public and Private Agents The initial reaction of states to the crisis marked an unprecedented assertion of public power in the recent history of global finance. While states had intervened to save the system in specific cases over the previous two decades – the Mexican currency crisis in 1994, the almost-collapse of the hedge fund Long-Term Capital Managemnt in 1998, the aftermath of the September 11 attacks – the size and scope of the actions in 2007/08 dwarfed these earlier episodes. The combination of massive (often coerced) infusions of capital into financial institutions, de facto nationalization of firms, forced mergers of firms, and a general turn to unprecedented sources of authority for these actions amounted to a shock to a system of hybrid cooperation in which public actors were expected to defer to private power and purposes. As Helleiner and Pagliari have shown, this assertiveness of state actors has generated a great deal of resistance from and tension with private financial actors and institutions.50 At the same time, the development of divergent national, regional, and transnational approaches to address the crisis has further strained the previously smooth cohesion of transnational networks. A similar pattern has emerged in the subsequent attempts to develop modified legal and regulatory structures to stabilize global finance over the long term. In these contexts, however, established public-private hybrid networks have been able to use the process of reform to recover their initiative and have played a more active role in shaping emergent structures of financial law. The major developments to this point have been in the global north. In the US, the Dodd-Frank legislation enacted a number of goals and principles – create a structure for public “clearing house” registration of derivatives exchanges and contracts, severely constrain the ability of financial institutions to conduct proprietary trading with investor deposits, the creation of an agency directly responsible for protecting the interests of consumers, reform the structure and role of credit-rating agencies in the financial markets, and create a regulatory mechanism (outside of established insolvency/bankruptcy law) for the orderly restructuring or liquidation of insolvent financial institutions that are considered “too big to fail”.51 Much of the exact detail of these arrangements, though, will be determined by the slower process of the development of specific regulations by key federal agencies, which has and will be the subject of enormous political pressure and conflict. The situation in Europe remains more uncertain. In the UK, regulatory authority over the financial industry has been recentralized in the Bank of England and there has been much attention to the role of bonuses in shaping the risky 50. Helleiner and Pagliari, ‘Crisis and the Reform’, supra note 32. 51. For a systematic review of Dodd-Frank and its implications, see Viral Acharya,Thomas F. Cooley, Matthew F. Richardson, Ingo Walter and Myron Scholes (eds.), Regulating Wall Street: The Dodd-Frank Act and the New Architecture of Global Finance (John Wiley & Sons: Hoboken, 2011).

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behavior of financial executives. More recently, the Vickers Commission Report recommended more radical steps that would force banks to “fence off” their regular consumer and business services activities from their more speculative investment strategies.52 The EU has been developing a broad set of proposals which range from centralizing the structure of financial law and regulation to substantive provisions that increasingly seem to track the main principles of US reform legislation – more transparency and limitations on derivatives trading, limitations on proprietary trading, etc.53 The EU reform effort, however, has been complicated and slowed by the ongoing sovereign debt crises touched off by the financial crisis, which has intensified already existing conflicts between states trying to maximize the benefits to their national financial institutions in any new regulatory structure, and generated much domestic conflict over the emphasis on austerity measures. It remains to be seen whether these tensions will undermine efforts for a EU regulatory framework, and there is some evidence already that EU-wide hybrid networks are under strain as a result of these conflicts while banks seem to be increasingly re-focused on their domestic markets. These measures have been accompanied by important multilateral initiatives. Working through the BCBS, regulators in the major economies have agreed on a new set of stricter reserve requirements, capital adequacy ratios, and leverage ratios for banks – referred to informally as “Basel III” – to reduce the amount of systemic risk in the financial system and to better prepare banks to survive future crises. The implementation of these standards is gradual and subject to much conflict at the level of national and EU authorities, which has pit regulators concerned with financial stability against the major international financial institutions, who claim tighter regulations (such as higher reserve requirements) will hurt economic growth. Despite strong protests from industry, it seems for the moment that regulators are going to pursue the implementation of this tighter regulatory framework, which does seem likely to have a significant impact on the ability of banks to pursue some especially risky strategies.54 Closely connected to these initiatives has been increased official encouragement of the ongoing process 52. For a good initial overview of the Report and its potential impact, see Patrick Jenkins, et al., “Vickers Plan Shakes up City,” Financial Times, 12 September 2011, (visited 2 July 2012). 53. James K. Jackson, The Financial Crisis: Impact On and Response By the European Union (US Congressional Research Service: Washington DC, 2009) and Karel Lannoo, ‘The EU’s Response to the Financial Crisis: A Mid-Term Review’, Centre for European Policy Studies Policy Brief 241 (Brussels, 2011), (visited 2 July 2012). See also the essays in the special issue of the 47 (5) Journal of Common Market Studies (November, 2009). 54. For the arguments of financial institutions, see Institute of International Finance, The Cumulative Impact on the Global Economy of Changes in the Financial Regulatory Framework (Washington, DC, 2011). For an example of how regulators are responding the claims of banks, see Macroeconomic Assessment Group, Assessment of the Macroeconomic Impact of Higher Loss

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to adopt internationally uniform accounting standards, both as a way to reduce regulatory arbitrage by private actors and to further limit risky financial activity. Meanwhile, the basic structure for international financial regulation has undergone some key changes. In response to the crisis and simultaneous emergence of new financial powers, in 2008 the G-7 was officially replaced by an expanded G-20 designed to be the central source for global coordination of economic and financial policy. At the same time, the FSF was reconstituted as the Financial Stability Board (FSB), as a way of expanding its membership and broadening its substantive concerns in the area of systematic financial stability and deepening cooperation with institutions such as the BIS, OECD, IMF and World Bank. The official goal of this new “architecture” is to constrain the resort to unilateral and nationally divergent responses to international problems. But the more significant aspect is the recognition of the growing financial importance of the growing economies in China, India, and Brazil, and (less directly) the sovereign wealth funds (SWFs) of major resource exporting states. Unlike the economies at the heart of the financial world, these states have not experienced any significant impact of the financial crisis, and have financial systems that are more closely controlled by public agencies and modeled on very different principles of financial governance. As such, the entry of these actors more directly into the process of legal and regulatory governance over the global financial systems could pose significant challenges to the structures that have sustained hybrid governance over the past three decades. What does seem clear, though, is that the hybrid networks and sources of private power remain active and central to the ongoing processes of legal and regulatory reform. As Tsingou puts it, the transnational financial policy community that dominated financial law and regulation prior to the crisis has been “stressed” but not “broken.”55 After a short period of retrenchment and defensiveness, and in the context of more assertive state action, the surviving international financial firms and markets have regained a good deal of their influence, at the international and national levels. The largest banks, industry organizations, and allied experts have continued to play a major part in shaping the development and implementation of financial sector reforms in both the US and EU, pursuing a variety of strategies including public relations campaigns, development of legislation, and lobbying and legal action designed to determine the actual shape of new legal and regulatory regimes as they are implemented.56 They have been especially active in attempting to limit the depth and scope of the reforms proposed by the Basel Absorbency for Global Systematically Important Banks (Bank for International Settlements: Basel, 2011). 55. Tsingou, ‘Regulatory Reactions’, supra note 15, at 22. 56. For a good example, see Eric Dash and Nelson D. Schwartz, ‘As Reform Takes Shape, Some Relief on Wall St.’, The New York Times, 23 May 2010.

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Institutions. Major international banks and industry representatives (IIF, ISDA) have been consistently and publicly vocal in asserting the importance of finance for national and global economic dynamism, the need for legal and regulatory approaches that are accommodating of their profitability, and the dangers posed for national and international prosperity of any measures the industry itself perceives to be threatening to its autonomy and flexibility. In the EU, these groups have been able to enroll the aid of key states in resisting the implementation of Basel III regulations, as the ongoing efforts of France and Germany illustrate.57 As the previous discussion makes clear, private institutions and agents do seem to have lost some of their power relative to public actors. For the moment, though, this seems to have amounted to a shift in the balance of influence with hybrid governance practices, not their replacement with a clear alternative model. Indeed, many of the public agents directing the process of reform at the national and international levels were already players in these hybrid networks before the crisis.58 Moreover, the reality that the substance of much legal and regulatory change is to stabilize and reset – rather than to fully remodel – the structure and place of global finance inevitably means the continuing centrality of private power within practices of hybrid governance. Private power may have been weakened, but it is being exercised in familiar ways within networks that have not changed as much as might be expected.

5.2. The Principle of Self-Regulation In the abstract, the celebration of self-regulation as the path to financial stability was one of the earliest casualties of the financial crisis. Broad ideological commitments to “market efficiency” and “self-regulation” were quickly replaced by a sense that stricter public regulation that limits risk-taking is necessary for ensuring the long-term stability of the financial system. This shift in understanding has been reflected both in the initial responses to the crisis and in the slower process of developing new legal and regulatory frameworks for financial governance. But the limits of change noted above are present in this area as well. Despite the broad proclamations regarding the “failures” of self-regulating markets, the existing patterns of policy change still rely on the centrality of private markets – with better regulation – to efficiently allocate finance on the national and international levels. 57. For an updated account, see ‘Editorial: Basel III – The Case for the Defence,’ Financial Times, 23 January 2012, (visited 2 July 2012). 58. In the US example, the current Treasury Secretary Timothy Geithner, the former Treasury Secretary who drove the TARP initiative Henry J. Paulson, and the Federal Reserve Chair Ben Bernanke were all key players in the governance of the US and global financial systems before the crisis.

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While frustrated by the more limited deference they now face, major financial institutions and their industry associations (ISDA and IIF are good examples here as well) remain deeply involved in the processes of legislation and regulatory rule-making through which new governance frameworks are being constructed. This can be seen as rather remarkable, given the clarity and depth of the failure of the previous regulatory order and widespread popular distaste for the financial industry, but it reflects the same resiliency of the hybrid networks described in the previous section.

5.3. The Role of Private Experts and Expertise As much as it challenged a general faith in market efficiency, the financial crisis seemed to deal an even more fatal blow to the field of financial economics and the experts associated with it. In the initial aftermath of the crisis a number of influential analyses presented focused and widely-praised critiques of the intellectual foundations of the pre-crisis world,59 and there was much talk about a revival of Keynesianism.60 At the same time, some of those who had earlier raised questions about the stability of contemporary finance – i.e. Naseem Taleb, Robert Schiller, and Raghuram Rajan – were now lauded for their vision and were widely invoked in policy discussions. But subsequent years have seen the continued influence of established financial policy expertise in shaping public and elite discourse concerning financial regulation. Many of the same academic and industry experts (including consulting institutions) that had helped create the intellectual “common sense” of the pre-crisis era remain central actors in advising and evaluating the policy responses to the crisis. Indeed, policy-makers and financial institutions argue that only these actors and experts have the detailed and specific understanding of contemporary financial practices necessary to stabilize existing institutions and “unwind” the various agreements and contracts that have so damaged the balance sheets of financial institutions. In addition, state actors – especially the US Treasury and Federal Reserve – have used these experts to enable them to both understand the problems of financial markets and to manage the extensive public investments in banks in order to ensure that the state minimizes potential losses (or actually profits, as in the case of US sales of MBSs on the portfolios of rescued financial institutions). These dynamics illustrate in a very useful way the continued power of established hybrid policynetworks. While their general public legitimacy may have suffered from the crisis, management of the financial order they have created requires the kinds of 59. Tett, Fool’s Gold, supra note 11, Cassidy, How Markets Fail, supra note 10, and Smith, ECONned, supra note 34. 60. As exemplified in the sudden success of Robert Skidelsky, Keynes: The Return of the Master (Public Affairs: New York, 2009).

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expertise only they possess. The structural centrality of this expertise continually empowers established hybrid networks, now as essential actors in the resolution of the crisis which their expertise played a key role in generating. A similar dynamic is playing out in the multilateral arenas of the BCBS and IMF, where discussion of the causes of the crisis and acceptable responses remains dominated by diagnoses and alternatives that focus on specific failures in the areas of liquidity and risk-exposure while avoiding any larger inquiry into the fundamental structure place of finance in the larger global political economy. This pattern is also reflected in broader discussions of macro-economic policy, where an initial revival of Keynesian-style analysis of finance and economic crisis has been (for the moment) successfully sidelined by a revival of traditional monetary and fiscal orthodoxy. To be sure, within the field of financial economics there is now a developing reconsideration of theories and methods, and consumers of this expertise may be more skeptical of its claims.61 Perhaps more importantly, the ongoing conflict over the proposed Basel III regulations seems to show that national and international regulators are increasingly willing to assert their own expert judgment in response to efforts by private agents to mobilize traditional expert knowledges.62 To this point, then, the general pattern here is the same as we have seen in the previous sections: an initial shock and challenge to the main features of hybrid governance in finance has left its mark and weakened its foundations, but they continue to play a central part in the re-structuring of the global political economy.

5.4. Dynamics of Harmonization and Fragmentation? In the two decades before the crisis, hybrid governance networks had been pushing the global financial system towards some convergence around generally AngloAmerican norms of financial rules and practices. While this push coexisted with significant resistance from states with different regulatory structures, ongoing competition between the US and UK for ascendancy in financial markets, and continued legal and regulatory arbitrage by private agents, we did see significant movement towards harmonization in the governance of transnational markets. What impact(s) has the financial crisis had on these dynamics? At the broadest level, the direction of legal and regulatory development has shifted from a more facilitative approach to financial markets to one of establishing new and more effective forms of control, and current dynamics have been reshaped by this change. Thus, what we are now seeing are processes of regulatory and legal

61. George A. Akerlof and Robert J. Shiller, Animal Spirits (Princeton University Press, 2009). 62. See the material discussed in note 64 below.

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convergence and divergence in the development of new governance structures, and these dynamics have been transformed by the impact of the crisis itself. There are two broad dimensions to this discussion, the process of financial governance within the global south, and the impact of emerging financial power outside of that core set of states. As the earlier discussion indicates, the tensions between harmonization and divergence remain among the core states, though they play out in a different context. From 2008 on, major states and regulatory institutions have been engaged in a two-level process, advancing national responses to the crisis while pursuing attempts (through the Basel institutions, the EU, and elsewhere) to coordinate and harmonize new governance structures. Initial evidence suggests that the emerging regulatory frameworks in North America and Europe are converging on broad principles designed to strengthen the solvency of remaining financial institutions, limit risky strategies by these institutions, create new or reforming existing gatekeeping institutions around these institutions, and promoting more transparency in markets, all with the goal of preventing a repeat of the kind of crisis just experienced. What began as a set of improvised and varied responses have coalesced over the past couple of years around these principles and some key rules. A good example is the gradual move of EU reform efforts towards rules and institutions that parallel the structure created by the Dodd-Frank legislation in the US. In many cases, this harmonization push has been supported and sustained by the transnational hybrid networks, practices, and institutions established under the previous regime, which have to a great degree driven the substance of these projects.63 But pressures for divergence remain, and are rooted in some important underlying dynamics and changes resulting from the crisis. By weakening US and UK financial institutions but also spreading the impact broadly, the financial crisis generated a number of fault lines among these states and with them opportunities for other states to assert themselves and for new conflicts to arise. The vulnerabilities in their domestic financial industry put pressure on a key source of economic power in the US and UK, and the industry itself has been playing on this issue to push both states to resist pressures – especially those coming from multilateral bodies and the EU – to put even tighter controls on financial markets and institutions.64 There is particular tension here between the UK and EU, as the former refuses to compromise in regulatory attempts it perceives 63. See Tsingou, ‘Regulatory Reactions’, supra note 15, Porter, ‘Risk Models’, supra note 11, and Andreas Nolke, ‘The Politics of Accounting Regulation: Responses to the Subprime Crisis’, in Eric Helleiner, Stefano Pagliari, and Hubert Zimmermann (eds.), Global Finance in Crisis (Routledge: London, 2010) 37-55. 64. See, for example, the recent comments by Jamie Dimon, CEO of JPMorganChase, regarding the developing Basel III rules. See Tom Braithwaite and Patrick Jenkins, ‘JPMorgan Chief Says Bank Rules ‘Anti-US’,’ Financial Times, 12 September 2011.

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as directed at the power and supremacy of London as a financial centre.65 US policy-makers are similarly under pressure to ensure that the implementation of the Dodd-Frank rules do not harm New York in its competition with London for financial power.66 Within the EU, the ongoing sovereign debt crisis occurring simultaneously with the development of new rules for the financial industry has led to tensions between Germany and France, and between them and the Mediterranean states in fiscal crisis, in which each actor is attempting to best position their own financial sectors and norms. These conflicts coexist, meanwhile, with occasional cooperation between these states to resist some of the Basel III rules. There has even been some protest from states that did not experience the financial meltdown (i.e. Canada) that some of the new multilateral rules would unfairly burden their own financial sectors. And there remains the constant issue of the direction of domestic politics in each state, where publics across the North Atlantic world remain very skeptical of the financial industry and policies that seem to let key institutions and actors “get away” with the damage they have caused. These conflicts make sense in light of two fundamental features of the postcrisis context. First, the cohesion and push towards harmonization of the previous two decades was driven by a set of transnational networks in which the US (or perhaps Anglo-American) model of financial practice, financial expertise, and hybrid governance dominated the discussion and drove legal and regulatory practice. By challenging the dominance and weakening the power of Americanbased financial institutions and markets, the crisis allows alternative models and their advocates to assert their own approaches to financial governance within and beyond the still active governance networks.67 Second, the shift in focus from law and regulation that facilitates private actors to an emphasis on constraining some of their choices – in the context of a plurality of models derived from various national models – inevitably opens the door to more diversity of options and thus points of conflict. We do not yet know how these competing dynamics of harmonization and divergence will play out. In light of the pluralistic pressures in the global north, the continued pressures from private agents to weaken multilateral rules while looking to preserve options for legal and regulatory arbitrage, and the uncertainties of domestic politics, the persistence of transnational policy 65. See Hubert Zimmermann , ‘Varieties of Financial Governance? British and German Approaches to Financial Market Regulation’, in Eric Helleiner, Stefano Pagliari, and Hubert Zimmermann (eds.), Global Finance in Crisis (Routledge: London, 2010) 121-136 for useful background. 66. This tension may even take a new direction. The recent revelation of major losses by a JPMorganChase trading unit in London led some US politicians and regulators to criticize UK regulators and markets for creating conditions that destabilize US markets and regulatory efforts. Agence France-Presse, ‘“Inadequate” Controls led to JPMorgan Loss: Regulator’, 6 June 2012, (visited 10 October, 2012). 67. Layna Mosely, ‘An End to Global Standards and Codes?’, 15 Global Governance (2009) 9-15.

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networks and their continued ability to pursue a project of regulatory harmonization is evidence that the latter option remains a vibrant possibility. The evaluation of these dynamics, however, is complicated by the emerging power of new actors in global finance and financial governance.68 The rise of Asian capital markets, financial institutions, and sovereign wealth funds – and especially China – casts a long shadow over the traditional dynamics of the North Atlantic financial sphere. Private financial institutions are increasingly focusing their investment in these areas of the global economy, and regulators from Asia – especially China – now play a growing role in shaping the regulatory playing field faced by financial actors. It remains unclear, however, how these developments will shape the patterns and structures of global financial governance. There are a number of reasons for thinking that any attempts to harmonize legal and regulatory structures will become more difficult. The very presence and number of new actors can make any sort of consensus among states more difficult to achieve. Many of the choices of these actors to this point indicate a focus on manipulating existing rules and dynamics to promote national interests with little concern for the larger structure of the global economy; as Andrew Walter points out in the contest of China, most emerging players continue to act as “rule-takers” rather than “rulemakers.69 Moreover, the key emerging actors have grown up in financial systems that are quite different from established practices in the global north, with an emphasis of tight state control and direction of markets and financial institutions, close links between political and financial officials, limited transparency, and a lack of reliance on legal frameworks for financial practice or regulation.70 While these states may be more comfortable with the recent trend towards more public control of finance, their policy traditions and institutions remain far removed from those models still shaping debate and action in global north. In addition, with the exception of some common educational backgrounds, few leading officials and bankers in these new states are closely integrated into the hybrid networks that have governed global finance to this point. Combined with their relative success in protecting their own systems from the global crisis and ability to profit as it deepened, there would seem to be little incentive for these agents to engage actively in global regulatory harmonization projects. The failure so far of the new G-20 and its associated institutions to make progress towards a new global “financial architecture” would seem to support this kind of conjecture. 68. Eric Helleiner, ‘Regulation and Fragmentation in International Financial Governance’, 15 Global Governance (2009) 16-22. 69. Andrew Walter, ‘Chinese Attitudes Towards Global Financial Regulatory Cooperation: Revisionist or Status Quo?’, in Eric Helleiner, Stefano Pagliari, and Hubert Zimmermann (eds.), Global Finance in Crisis (Routledge: London, 2010) 153-169. 70. Two important works that engage the diversity of financial systems in different ways are Curtis Milhaput and Katharina Pistor, Law and Capitalism (University of Chicago Press, 2008) and Halliday and Carruthers, Bankrupt, supra note 14.

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But this picture remains incomplete, as two major considerations would seem to push emerging financial powers in a different direction. First, there is the longer-term consideration that the economic success of China in particular has depended upon the ability to export goods and access capital from a broadly “liberal” global political economy. While its own domestic institutions may look very different, it is unclear whether its national economy could continue to prosper in the absence of the kind of facilitative environment it has enjoyed over the past decades. Second, for all their internal wealth and resources the emerging states continue to access the capital, expertise, and connections of the major global centre-based financial institutions and as a result have ever deepening relationships with key regulatory agencies in these states. In both senses, then, these states, markets, and institutions remain dependent to one extent or another on the health and stability of the established global financial system. This could generate deeper involvement in the project of re-constituting the governance of global finance, but the direction of this is uncertain. As Miles Kahler has put this case, ‘(n)either the global position of Asian economies nor their domestic politics are likely to produce a coherent alternative to the market-friendly and liberalizing norms that govern the international economy.’71 While sympathetic to tight controls over finance domestically, states such as China may conclude that they need a more lightly controlled global financial sector to generate new sources of capital and/or that their domestic systems need to be restructured in a more “Western” direction to continue to support stable growth over time.

6. Conclusions Where do these considerations leave the analysis developed earlier? The system of hybrid governance in global financial law and regulation was based upon a larger systemic structure which empowered private agents and expertise to create markets and property rights in a supportive and relatively light regulatory environment focused on the principles of market efficiency and self-regulation. Over two decades, private agents used this structure to deepen their ability to shape markets, create and define new forms of wealth and property, and define the agendas and alternatives facing financial law and regulatory policy. This power – and with it the structures of hybrid governance – were consolidated in the Anglo-American context, spread with increasing (but limited) success around the rest of the core global economies, and began to be diffused (though with much resistance) throughout the global political economy by the late 1990s. The global financial crisis beginning in 2007 has significantly challenged but 71. Miles Kahler, ‘Asia and the Reform of Global Governance’, 5 Asian Economic Policy Review (2010) 178-193 at 190.

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not yet undermined the system of hybrid governance and private power. States at the global north have responded to the crisis by increasing their power and control in national and multilateral contexts, instituting new sorts of controls on financial markets and institutions, and deferring less to private actor preferences. At the same time, new states have gained financial power in the context of the crisis, and are challenging (in one form or another) the structure and substance of the hybrid networks on which the previous global financial order was based. But private financial power remains a real and crucial factor in shaping global financial law, regulation and practice, and the networks, institutions, and expertise developed before the crisis remain central participants in current struggles over the emerging direction of financial governance. The discussion above suggests two possible paths in which these struggles could develop.72 The first would be a gradual consolidation of a new, now more global consensus around a practice of hybrid governance of the financial sector in which state actors – working separately and multilaterally – exercise more control over private financial institutions and markets. The basic principle here would be to consolidate the emerging risk-reduction regimes being pursued by states and the Basel institutions, bring emerging financial powers/actors into these regimes, and thus stabilize the global financial system. In general, this would be a gradualist and reformist approach that extends trends of more public assertiveness that have developed over the past few years. But it would involve some significant action. Emerging financial powers in Asia and elsewhere would have to buy into models of global financial governance that remain more market-centred than they are used to domestically, with unknown implications for domestic financial structure and governance. In return, they would need much more influence over the major multilateral institutions and decisions in global finance, and some confidence that this new consensus would help direct increasing amounts of private capital to their own economies on terms they can determine. The achievement of any such new consensus and governance structure would be a tall order. We have already seen the difficulty faced by the G-20 institutions in integrating new financial actors into the multilateral governance structure. Moreover, from the point of view of these actors there may be little incentive to play this game: they have been prospering by refusing to defer to private actors and rejecting the core states’ models of financial practice, and may see no reason to compromise…especially if it could be seen to threaten important domestic political goals. At another level, the creation of this kind of governance model 72. My discussion here is meant to identify “ideal-typical” (in the Weberian sense) alternative models of political development. In practice, we are likely to see some sort of mixture of the features of these two (and perhaps other) models and thus a much messier picture than this discussion presents.

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at the global level would require the consolidation of a new kind of economic/ legal/regulatory expertise available to policy-makers, one more consonant with a focus on risk reduction and skepticism of private action that has dominated the global arena to this point. On both points, this model’s success would require a willingness and ability to overcome the plurality of models, interests, and outlooks that the increasingly global financial system has helped generate. Critical observers would be well justified in remaining skeptical about the likelihood of solving all the collective action problems faced by this alternative. The second potential path would be one in which this pluralism, diversity, and conflicting interests – combined with enhanced public powers over finance – would generate a fragmented system of global finance and financial governance. National states – within and beyond the global north – would develop their own models of financial control that heavily direct national financial systems towards the promotion of national interests, while attempting to manipulate the global system towards the same ends. Transnational networks and institutions would become attenuated, with only occasional and situational collaboration possible. On the national level, finance would be subordinated to political controls in ways not seen since the 1970s. But this would not necessarily lead to the full subordination of private power, agents, and markets at the global level. This “nationalization” of control over finance could deepen the degree of pluralism of rules, principles, and law in the field of global finance generally. This would provide private financial actors will all sorts of options to practice regulatory and legal arbitrage and thus find new opportunities for assert their own interests on the transnational level. To be sure, states could in principle suppress global finance as we have known it, as they did in the 1930s and 1940s. But two considerations stand as obstacles to this result. First, the connections between financial markets and financial resources across national boundaries are much deeper than they were at earlier points in modern capitalism. It may be possible to break these, but the intense “financialization” of global capitalism in the past three decades may make the costs to national states – in terms of access to capital and pursuit of global economic power – too great to attempt this. Second, and as a result of these developments, states would likely find it in their interests to try and access and manipulate (rather than destroy) the substantial resources and expertise held by private financial institutions and markets. In this scenario, the assertion of public power at multiple plural points in transnational finance need not imply a zero-sum decline of private power, but rather its reconstitution in new structures and contexts. Both of these scenarios leave a crucial role for private agents in the governance of global finance, even in the face of the crisis generated to a great degree by the irresponsibility of these actors and the deference they received in the system of hybrid governance. How can we best understand this result? The key, I suspect,

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is context of the plurality of fields and jurisdictions in the global economy, which gives financial institutions and markets the unique ability to generate structures of rights, property, claims, and obligations that benefit but also constrain states. Duncan Wigan’s path-breaking analysis of the financialization of contemporary capitalism, on which this argument is based, suggests that the position of the financial system is such that financial institutions, markets, and experts are able to create forms of property and power that continually outstrip the abilities of states and inter-governmental networks to structure the system on their own.73 This situation creates for financial institutions and markets what he calls “(t)he exorbitant privilege of financial production”74 which allows for these agents the power to create new sources of capital and determine the terms on which it will be used. As a result, these agents are likely to continue to control the expertise necessary to manipulate their own actions, and even more importantly the processes of credit creation upon which economic growth depends. To go back to Morgan’s terms,75 private financial actors will retain “pragmatic” legitimacy in the eyes of national and international regulators, whatever the limits of their “political” legitimacy. Whatever the emerging shape of the global financial political economy, these structural conditions may make engagement with networks of private agents essential to any practice of national and global financial governance that does not radically transform the system of capital creation. Hybrid governance may indeed be with us, in one form or another, for the foreseeable future.

73. Duncan Wigan, ‘Financialisation and Derivatives: Constructing and Artifice of Indifference’, 13 Competition and Change (2009) 157-172 and Wigan, ‘Credit Risk’, supra note 25. 74. Wigan, ‘Credit Risk’, supra note 25, at 116. 75. Morgan, ‘Legitimacy’, supra note 49.

From Molehills to Mountains (and Myths?): A Critical History of Transitional Justice Advocacy Pádraig McAuliffe* AbstrAct: At a time when transitional justice discourse is increasingly divided between advocates who celebrate its inherently progressive evolution and champion its constant expansion, and more agnostic theorists and practitioners who counsel against perceived utopianism and urge a more sceptical empirical assessment of the ever-greater claims made for its mechanisms, it is worthwhile examining how the phenomenon has developed in the years since its foundation in the late 1980s. In just over two decades, it has emerged from relatively circumscribed foundational debates over the efficacy of any accountability response in transitional societies to undergo an often bitter doctrinal ‘truth versus justice’ debate over best practice and on to the present-day’s extraordinarily assertive and quasi-hegemonic discourse absorbing and assimilating wildly divergent policies of peace-building, development and psychosocial therapeutics. As the field becomes a contradictory body of ideas, attitudes and practices to which only the title ‘transitional justice’ gives coherence, this constant revolution has stimulated an observable reaction among scholars and professionals who inveigh against the unjustified idealism that has hitherto characterised the field, and who counsel empirical assessment of the virtuous effects more easily presumed than proven. This article employs a critical, four-stage historical treatment of the interaction between advocacy and transitional politics. It concludes that transitional justice’s development is best understood not as an evolutionary process, but rather as a series of principled and evermore creative adaptations to still-pervasive political limitations. Its apparent utopianism might better be comprehended as the search for diverse and discrete heterotopias. Keywords: transitional justice, international criminal law, truth commissions, restorative justice, human rights

*

Pádraig McAuliffe lectures at the School of Law, University of Dundee, UK. E-mail: [email protected].

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1. Introduction The most widely accepted definition of transitional justice is that of ‘the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation,’ but it has not always been defined so widely or so ambitiously.1 While the process whereby a coterie of individuals and institutions coalesced to outline the common concepts and objectives of a distinctive and self-conscious field of policy-making and research activity called ‘transitional justice’ had been ongoing since the very late 1980s, it was only twenty years ago that the term made its first appearance.2 Though initially conceived in a relatively limited manner as the study of tools for establishing stability in transition from authoritarian rule to liberal democracy around the time of the Cold War’s dénouement, in the space of two decades transitional justice has developed by an apparently geometric progression. Popularised by the mid-1990s,3 within a decade it was firmly ensconced in the popular imagination,4 official peacebuilding discourse5 and foreign policy.6 In the past ten years, the nature of the claims made for transitional justice have become ever-more expansive as it moved from its historically exceptionalist origins to the mainstream.7 Transitional justice 1. 2.

3.

4.

5. 6. 7.

The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, Report of the UN Secretary-General, UN Doc. S/2004/616, of 3 August 2004, at para. 8. Arthur and Teitel are in loose agreement over its provenance. Arthur traces the genesis of the phrase to correspondence in late 1991 (Paige Arthur, ‘How “Transitions” Reshaped Human Rights: A Conceptual History of Transitional Justice’, 31 Human Rights Quarterly (2009) 321367 at 329), while Teitel claims that she coined the phrase ‘transitional justice’ in 1991 (Ruti Teitel, ‘Editorial Note – Transitional Justice Globalized’, 2 International Journal of Transitional Justice (2008) 1-4 at 1. Tricia Olsen, Leigh Payne and Andrew Reiter, Transitional Justice in Balance: Comparing Processes, Weighing Efficacy (United States Institute of Peace: Washington DC, 2010) at 9, as well as Arthur, ‘How “Transitions” Reshaped Human Rights’, supra note 2, at 330, cite Neil J Kritz’s three volume edited collection (Neil J. Kritz (ed.), Transitional Justice: How Emerging Democracies Reckon with Former Regimes, Volume I: General Considerations (United States Institute of Peace Press: Washington, DC, 1995) as a significant milestone in the dissemination and promotion of the concept. Alexandra Barahona De Brito, ‘Truth, Justice, Memory and Democratization in the Southern Cone’ in Alexandra Barahona De Brito, Carmen González-Enríquez and Paloma Aguilar (eds.), The Politics of Memory: Transitional Justice in Democratizing Societies (Oxford University Press, 2001) 119-160 at 157. Panel on UN Peace Operations, Report of the Panel on United Nations Peace Operations (The Brahimi Report) UN Doc. A/55/305-S/2000/809 of 21 August 2000, at para. 13. For example, even by 1996 accountability had become a mainstay of the US State Department’s foreign policy Naomi Roht-Arriaza, ‘Combating Impunity: Some Thoughts on the Way Forward’, 59 Law & Contemporary Problems (1996) at 93. Kieran McEvoy, ‘Beyond Legalism: Towards a Thicker Understanding of Transitional Justice’, 34 Journal of Law and Society (2007) 411-440 at 412.

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is routinely described as being as essential to peace-building as demobilisation, disarmament or elections,8 as ‘the centre-piece of social repair’9 and as ‘the first real test for democratic statehood.’10 It is no exaggeration to suggest that it now dominates debates on democratisation, reconstruction and regime change.11 Issues that had achieved only the most cursory of considerations before the fall of the Berlin Wall may now determine the possible accession of Turkey and Serbia to the EU.12 It is now inconceivable that the head of a truth commission could credibly claim that he had no awareness that this type of investigation had taken place (as the director of Chad’s commission did in the early 90s)13 or that the architect of a domestic transitional justice process could plausibly complain that he had no information on analogous processes (as Argentina’s President Alfonsin once did).14 The language of trials and truth commissions is now ubiquitous, perhaps best illustrated by Cote d’Ivoire’s president-elect Alessane Ouattara’s insistence that Laurent Gbagbo would face justice and that a truth and reconciliation commission would be established to investigate atrocities committed during the national conflict literally within minutes of storming the latter’s underground bunker at the presidential residence in Abidjan in April 2011.15 Bell describes the growth of the phenomenon best when she notes the ‘dramatically compressed trajectory’ of this ‘incredibly fast field.’16 This article presents a critical history of transitional justice advocacy less Whiggish in its understanding of how transitional justice developed than a prevailing consensus that the field is improving, evolving and effecting significant change. As it moved from theory to practice, justification to operation, and abstractions to individuals, the interaction of advocacy with transition has yielded results that the architects of justice mechanisms would not have predicted, expected or sometimes desired. Once transitional justice moved from the question of whether something should be done to how it should be done, even the roughest blueprints from prior practice foundered on the rocks of the transitional political context. 8. 9. 10. 11. 12. 13. 14. 15. 16.

David Mendeloff, ‘Truth-Seeking, Truth-Telling and Postconflict Peace-building: Curb the Enthusiasm?’, 6 International Studies Review (2004) 355-380 at 355-356. Laurel E. Fletcher and Harvey M. Weinstein, ‘Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation’, 24 Human Rights Quarterly (2002) 573-639 at 577. Kristin Bohl, ‘Breaking the Rules of Transitional Justice’, 24 Wisconsin International Law Journal (2006) 557-585 at 559. Ibid., at 557 and McEvoy, ‘Beyond Legalism’, supra note 7. Teitel, ‘Editorial Note’, supra note 2, at 4. Daan Bronkhorst, Truth and Reconciliation: Obstacles and Opportunities for Human Rights (Amnesty International Dutch Section: Amsterdam, 1995) at 99. Neil J Kritz, ‘Where We Are and How We Got Here: An Overview of Developments in the Search for Justice and Reconciliation’ in Alice H. Henkin (ed.), The Legacy of Abuse: Confronting the Past, Facing the Future (Aspen Institute: Washington DC, 2002) 21-45 at 22-23. David Smith, ‘Laurent Gbagbo’s humiliating fall’, The Guardian, 11 April 2011. Christine Bell, ‘Transitional Justice, Interdisciplinarity and the State of the “Field” or “NonField”’, 3 International Journal of Transitional Justice (2009) 5-27 at 6-7.

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Difficulties in applying past models or idealised archetypes to given transitional contexts have required constant innovation and adaptation. These innovations have at times yielded beneficial outcomes in terms of justice, truth and restoration, but have also generated additional dilemmas and made manifest underlying issues the various mechanisms have not addressed. The primary reason transitional justice has expanded has not been because of its success —as Linton argues, ‘in historical context, the global record of accountability for atrocity has been abysmal, whether at domestic or international level.’17 It has mushroomed because the theory and practice of transitional justice has consistently failed to fully capture real world complexities, and in attempting to remedy this has adopted new mechanisms, perspectives and goals. Transitional justice’s history is as much one of compensation as augmentation; for all the attempts to understand, improve and spread it, is not concerned with the pursuit of unattainable utopias, but is instead better understood as the search for diverse, context-specific heterotopias as theorists and practitioners grapple with ambivalence, animus and the unknown. Similar points have been made before, of course – Sriram has argued that the compromises of transitional justice are better understood as serving interim purposes than permanent goals,18 Roht-Arriaza accepts that the globalised diffusion of ideas has bowed to political ecology of the state concerned19 and Teitel accepted that her genealogical treatment of transitional justice captured critical cycles rather than a progressive history.20 Nevertheless, this circumspection is somewhat at odds with a significant proportion, if not a majority, of writing in the area which understands transitional justice’s expansion as a story of inevitable progression where lessons of the past will yield a less imperfect and more inclusive practice. This article argues that it is more productive to think of transitional justice not in terms of a simplified evolutionary narrative of long-term improvement and progress but rather in terms of conjunctures, i.e. discrete periods of opportunity or crisis when certain general conditions in different parts of the world coincided to either encourage or check its enlargement. It presents a four-stage history of transitional justice advocacy. Stage I, the era of peace versus justice, occurred when idealist approaches advanced by some governments and scholars using moral, political and legal arguments for dealing with past human rights violations were met by realist approaches of other governments and scholars emphasising the dangers of trial, truth and lustration. It was followed by Stage II, the era of ‘truth 17. Suzannah Linton, Putting Things Into Perspective: The Realities of Accountability in EastTimor, Indonesia and Cambodia (Maryland Series in Contemporary Asian Studies: Maryland, 2005) at 82. 18. Chandra Lekha Sriram, Confronting Past Human Rights Violations: Justice Vs. Peace in Times of Transition (Frank Cass: London, New York, 2004) at 203. 19. Naomi Roht-Arriaza, ‘The New Landscape of Transitional Justice’ in Roht-Arriaza and Marrizcuena (eds.), Beyond Truth Versus Justice, supra note 40, 1-16 at 5. 20. Ruti G. Teitel, ‘Human Rights in Transition: Transitional Justice Genealogy’, 16 Harvard Human Rights Journal (2003) at 94.

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versus justice.’ Here, the utility of transitional justice was generally accepted but differences emerged over how it should be done. This in turn led to the Stage III ‘beyond truth versus justice’ where a holistic approach impressing the need for combining mechanisms won out, but in so doing dramatically expanded the scope of transitional justice’s inquiry and activity. This diversification responded to the variety of contexts where human rights broadly understood have been denied, and replaced supposedly one-size fits all approaches that marked the truth versus justice era of the 1990s, to the extent that this particular phase might better be described as the ‘do everything, engage everyone’ era.21 This period of optimistic and accelerated development in turn paved the way for Stage IV, a post-euphoria era of doubt. This current period is a time when scholars, activists and (perhaps most importantly) funding agencies increasingly question whether transitional justice can actually justify claims about its ability to mediate transition, heal communities and rebuild society. After a period of rapid growth, scholars are now attempting to systematise knowledge about the causal relationships between transitional justice and its various overarching aspirations (peace, democracy, socio-economic justice, human rights, rule of law) and the micro-goals which contribute to them (retribution, restoration, redistribution, deterrence, reconciliation, social pedagogy) in a literature previously dominated by anecdote, analogy and hypothesis. The results paint a more equivocal picture of the causes and consequences of transitional justice’s growth. It must be conceded that the stages presented are best viewed as Weberian ideal types rather than hermetic or exhaustive categories that neatly and perfectly describe the growth of transitional justice. At any given stage, previous issues are being re-argued and re-defined while the seeds of future debates are apparent.22 However, this historical process of foundation, contestation, valorisation, and apprehension helps to identify the connections among broad orientations while allowing for exceptional developments. This piece does not critique the vast literature of transitional justice, but rather reviews it as on-going cycles of critique and counter-critique. It demonstrates how transitional justice went from humble beginnings to a dominant position in the discourse on periods of macro- and micro-level processes of socio-political change, accumulating along the way certain misapprehensions (the titular ‘myths’) about how it has developed, the impact it has had on transitioning societies in the past and the impact it can have in the future. Before examining how these stages emerged and made their 21. Paul Gready, ‘Reconceptualising Transitional Justice: Embedded and Distanced Justice’, 5 Conflict, Security and Development (2005) 3-21 at 7. 22. For example, probably the best work on the peace versus justice debate is Sriram’s relatively late 2004 book, supra note 18. Calls for systematic empirical analysis of transitional justice couples with a scepticism about its larger claims are apparent as early as 2002, for example Fletcher and Weinstein, ‘Violence and Social Repair’, supra note 9, at 601.

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equivocal contributions to the development of transitional justice, it is necessary to examine briefly the generally progressist (and sometimes messianic) manner in which theorists and practitioners have understood the field and their role in it.

2. The Self-Presentation of Transitional Justice 2.1 Evolution and Utopianism? As a set of assumptions, transitional justice has transcended (some may say decamped) its origins in human rights, law and political science to incorporate significant input from fields as diverse as anthropology, the arts, constitutionmaking, development studies, economics, education, epigraphy, gender studies, healthcare, history, psychology, sociology and theology, at a conservative estimate. If an inflationary tendency is commonly observed in popular academic fields, transitional justice may be said to have enjoyed superinflation. From initially modest questions like what justice initiatives can take place in transition or what is legally permissible, the scope of inquiry has become progressively more ambitious. Can a stable order ever emerge from instability? Should accountability accept exceptional departures from ordinary standards of justice or should it exemplify them? Should confrontation be formal or informal? Should there even be confrontation? Does a focus on civil and political abuses unduly circumscribe its emancipatory potential? The aspirations of transitional justice advocates include psychosocial healing of victims, construction of shared historical narratives, restoration of the rule of law, reform of institutions, reintegration of antagonists in communities, the end of impunity and socio-economic revision.23 As Andriu points out, these goals are startlingly ambitious – ‘nothing less than the transformation, or the regeneration, of a whole society.’24 In reaching these conclusions, transitional justice has experienced a remarkable proliferation of scholarly literature25 and has retrospectively 23. No-one can agree on what the goals should be. To take just two examples, Kritz sees transitional justice’s main purposes as ‘truth, justice, rule of law, and durable peace’ (Neil Kritz, ‘Policy Implications of Empirical Research on Transitional Justice’ in Hugo van der Merwe, Victoria Baxter and Audrey R. Chapman (eds.), Assessing the Impact of Transitional Justice: Challenges for Empirical Research (United States Institute of Peace Press: Washington, DC, 2009) 13-22 at 14), while Lundy argues non-impunity, recompense and restoration of dignity, institutional reform, national-building and reconstitution of shared narratives as among the main goals (Patricia Lundy and Mark McGovern, ‘Whose Justice? Rethinking Transitional Justice From the Bottom Up’, 35 Journal of Law & Society (2008) 265-292 at 267). 24. Kora Andriu, ‘Transitional Justice: A New Discipline in Human Rights’, Online Encyclopedia of Mass Violence (2010), (References to online sources are accurate as of 4 October 2012) at 3. 25. Andrew Reiter’s Transitional Justice Bibliography at last count counted included 2,369

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claimed a number of writers from the pre-transitional justice era for its canon.26 It has reached back into history and claimed the Athenian proceedings against the Thirty Tyrants in 413 BC,27 Saint-Just’s treatment of Louis XVI28 and the Bonapartist treason trials after the 1815 Hundred Days29 as valid frames of reference. Transitional justice now appears to have transcended its composite words. It no longer simply refers simply to justice during times of change from war or repression to peace and democracy, but applies to processes aimed at dealing with the present every bit as much as the past. It is now thought to apply unproblematically to justice processes in mature and long-consolidated democracies attempting to repair instances of past human rights abuses, to civil-civil transitions, to ongoing conflicts which show no signs of resolution and to authoritarian regimes consolidating their rule.30 It may be, as Levinson suggests, that ‘every society is in transition,’ but this begs the obvious question of whether the fashionable vocabulary of transitional justice has any limits.31 Though there are some who claim that transitional justice conceives regime change as too self-contained32 and that it needs to become ‘thicker’,33 an observer of the phenomenon’s infancy when it struggled to articulate its values or realise its opportunities in the face of indifference and recalcitrance would be astonished to see it go so far, so fast, so soon. Internationally-supported processes of peace-building and democratisation are unthinkable without processes of

26.

27. 28. 29. 30. 31. 32. 33.

entries of scholarly work related to the subject of transitional justice, , but once omitted, updated and non-English language texts are fully included, the number may be as much as double this estimate. Notable examples include Hannah Arendt, Eichman in Jerusalem: A Report on the Banality of Evil (first published in 1963) (Penguin Books: New York, 1977) and Judith N. Shklar, Legalism, Morals, and Political Trials (Harvard University Press, 1964); as well as Karl Jaspers, On the Question of German Guilt (Capricorn Books: New York 1961) and Otto Kirchheimer, Political Justice: The Use of Legal Procedure for Political Ends (Princeton University Press, 1961). Jon Elster, Closing the Books: Transitional Justice in Historical Perspective (Cambridge University Press, 2004) at 3-23. Mark Osiel, ‘Why Prosecute? Critics of Punishment for Mass Atrocity’, 22 Human Rights Quarterly (2000) 118-147 at 132. Gary Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton University Press, 2000) at 5. John Torpey (ed.), Politics and the Past: On Repairing Historical Injustices (Rowman & Littlefield Publishers: Lanham, MD, 2003); Pádraig McAuliffe, ‘Transitional Justice’s Expanding Empire: Reasserting the Value of the Paradigmatic Transition?’, 2 Journal of Conflictology (2011) 32–44. Quoted in Elizabeth Kiss, ‘Moral Ambition Within and Beyond Political Constraints: Reflections on Restorative Justice’ in Robert I. Rotberg and Dennis Thompson (eds.), Truth v. Justice: The Morality of Truth Commissions (Princeton University Press, 2000) 68-98 at 92. Eric A. Posner and Adrian Vermeule, ‘Transitional Justice as Ordinary Justice’, 117 Harvard Law Review (2004) 762-825 at 762-763. McEvoy, ‘Beyond Legalism’, supra note 7.

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accountability and restoration since the UN Secretary-General’s seminal Rule of Law and Transitional Justice Report in 2004.34 There was nothing inevitable about this emergence. It is necessary to guard against what Bergson calls ‘the illusions of retrospective determinism,’ the tendency to regard actual historical outcomes as more probable than alternatives that seemed real at the time. It was far from clear in transitional justice’s very modest and uncertain beginnings that it would attain the popularity it did, while its record of heavily qualified success in practice is not commensurate with the degree of attention it receives. Nevertheless, there is significant evidence in the literature of that academic proclivity which psychologists call hindsight bias, the presumption that what actually happened to transitional justice was inevitable and natural. Its accelerated aggrandisement tends to be understood as a Whiggish narrative of potentially endless and linear progress. Laplante, for example, speaks of how transitional justice constantly evolves, incorporating a sense of enlightened adaptive momentum.35 Teitel, too, has used the language of evolution.36 McEvoy, as well as Sikkink and Walling, notes an ‘upward trajectory.’37 Criminal tribunals, especially international ones, have always been presented in a progressist manner,38 while it is argued that truth commissions are in a process of continual improvement by building on the lessons of preceding commissions.39 From its earliest days, the transitional justice movement has operated on the basis that it, and the goals that underlie it, ‘are by definition a good thing.’40 The inclusion of multiple mechanisms is considered to manifest an intrinsically beneficial holism, the participation of victims is esteemed as inherently restorative. That transitional justice has moved beyond the mere avoidance of amnesty, forgone the truth versus justice debate or incorporated issues of socio-economic justice are deemed unreservedly progressive developments. Curbing the enthusiasm for transitional justice has always proven a difficult task – since its earliest days, even the limited, liminal nature of it the word transitional has served either to self-legitimise its practices or to undermine 34. UN Secretary-General, Rule of Law and Transitional Justice, supra note 1. 35. Lisa J. Laplante, ‘On the Indivisibility of Rights: Truth Commissions, Reparations, and the Right to Development’, 10 Yale Human Rights & Development Law Journal (2007) 141-177 at 152. 36. Ruti Teitel, ‘Transitional Justice in a New Era’, 26 Fordham International Law Journal (2003) 893-906 at 899. 37. McEvoy, ‘Beyond Legalism’, supra note 7, at 412; Kathryn Sikkink and Carrie Booth Walling, ‘The Impact of Human Rights Trials in Latin America’, 44 Journal of Peace Research (2007) 427-445 at 433. 38. Frédéric Mégret, ‘The Politics of International Criminal Justice’, 13 European Journal of International Law (2002) 1261-1284 at 1262; Immi Tallgren ‘The Sensibility and Sense of International Criminal Law’, 13 European Journal of International Law (2002) 561-595 at 584. 39. Laplante, ‘On the Indivisibility of Rights’, supra note 35, at 176. 40. Ellen Lutz, ‘Transitional Justice: Lessons Learned and the Road Ahead’ in Naomi Roht-Arriaza and Javier Marrizcuena (eds.), Transitional Justice in the Twenty-First Century: Beyond Truth Versus Justice (Cambridge University Press, 2006) 325-341 at 339.

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criticism of it.41 Even the traditional historical presentation of transitional justice as a beneficial product of the post World War II boom in humanitarianism held only in check by the iniquities of the Cold War reinforces this narrative.42 The tendency Kennedy notes of humanitarians to present their policy-making as the grand story of the progress of law against power and reason against ideology is more pronounced in transitional justice than in most analogous fields.43 Little wonder, then, that Mani observes that the mechanisms applied are ‘considered to be ubiquitously good, or at least so well intentioned and firmly grounded both morally and legally that their outcome cannot but be positive.’44 However, this surfeit of idealist ambition and optimism has opened transitional justice to the criticism that it is chimerical, quixotic and ‘claims too much’.45 Unfounded utopianism has formed a potent frame of reference for analysis of transitional prosecutions and truth commissions46 and forms the background to the growth of criticism of transitional justice, examined in Chapter 6. The most obvious example is the rapid cycle of adulation and obsolescence seen in municipal use of universal jurisdiction at the time of the Yerodia, Habré and Pinochet processes. Once viewed by its advocates as a means of fundamentally changing world politics, it is now stigmatised as ‘self-feeding hype generated by NGOs, activist lawyers and judges, academics conferences and papers, and mass media.’47 It is possible that one day the impassioned promotion of national memory projects, anti-statist justice-from-below projects or integration of transitional justice with land reform will attract similar opprobrium. The concern must be that idealism in transitional justice may enable a ‘realist’ backlash – it may even be welcome.

41. Arthur, ‘How “Transitions” Reshaped Human Rights’, supra note 2, at 329. 42. Teitel, ‘Genealogy’, supra note 20, at 69-94. 43. David A. Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (Princeton University Press, 2004) at 141. 44. Rama Mani, ‘Rebuilding an Inclusive Political Community After War’, 36 Security Dialogue (2005) 511-526 at 514-515. 45. Fletcher and Weinstein, ‘Violence and Social Repair’, supra note 9, at 601. 46. Regarding trials, Akhavan notes that ‘the antiseptic strictures and internal finality of the legal process make it a particularly tempting instrument for creating a false sense of closure within a self-absorbed utopia.’ (Payam Akhavan, ‘The International Criminal Court in Context: Mediating the Global and Local in the Age of Accountability’, 97 American Journal of International Law (2003) 712-721 at 721). See also John Bolton, ‘The Global Prosecutors: Hunting War Criminals in the Name of Utopia’, 78 Foreign Affairs (1999) 157-164. Colm Campbell and Catherine Turner note the ‘creeping utopianism’ in claims for the benefits of truth commissions in ‘Utopia and the Doubters: Truth, Transition and the Law’, 28 Legal Studies (2008) 374-395 at 375. 47. Luc Reydams, ‘The Rise and Fall of Universal Jurisdiction’ in William Schabas and Nadia Bernaz (eds.), Routledge Handbook of International Criminal Law (Routledge: New York, 2010).

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2.2 Idealists and Realists, Cascades and Masquerades Of course the tension between the idealists and the realists (or maximalists and minimalists)48 in transitional justice is one that has been present since its earliest days when structural factors relating to the balance of power and availability of moral, human and political capital constrained the ability of the state to deal with issues of the past. Indeed, it was the uniqueness of the dilemmas and their solutions that made transitional justice distinctive. Teitel captured the schematised antinomy by loosely describing the idealist position as one where universalist conceptions of justice applied regardless of balance of power considerations as a necessary precursor to political change, in contrast with a realist position where justice in transition was the epiphenomenal and inevitably compromised product of political or institutional constraints.49 Though the importance of law and transitional justice’s ultimate aspirations have changed in subsequent debates, it has always been accepted that accountability policies depend on beliefs as well as politics, that they can be both ideational and epiphenomenal.50 Teitel reconciled the idealist and realist arguments, arguing that justice is extraordinary and constructivist – it is ‘alternately constituted by, and constructive of the transition,’ maintaining order but enabling transformation.51 Because the positions can be reconciled, surprisingly little attention has been given to the issue of which of the two positions has exercised the greater influence. For example, Bell is no doubt correct when she describes the development of transitional justice practice as stochastic, i.e. it is both a product of predictable patterns and random development.52 However, this elides the fundamental question of whether foreseeable conditions like the balance of power or haphazard vicissitudes like the strength of civil society, the degree of international assistance or simple luck have had the greater influence. At first glance, one might view the proliferation of transitional justice mechanisms, the expansion of their goals and their place in peace-building, democratic theory and human rights discourse as evidence that on balance, the idealists have triumphed. On the other hand, the apparent gap between the promise of transitional justice and its actual output, allied to the lack of any perceptible increase in satisfaction on the part of those it intends to serve, tends to suggests that political constraints have exerted greater influence (or the ideas are misguided). A prime example of the uncertainty is the debate over the existence of what Lutz, Sikkink and Walling have called ‘the justice cascade.’53 Building on Sun48. Olsen, Payne and Reiter, Transitional Justice in Balance, supra note 3, at 16-18. 49. Ruti Teitel, Transitional Justice (Oxford University Press, 2001) 3-4. 50. Alexandra Barahona de Brito et al, ‘Introduction’ in De Brito et al (eds.), The Politics of Memory, supra note 4, 1-39, at 14. 51. Teitel, Transitional Justice, supra note 49, at 6. 52. Bell, ‘Field’, supra note 16, at 15. 53. Ellen Lutz and Kathryn Sikkink, ‘The Justice Cascade: The Evolution and Impact of Foreign

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stein’s description of a norm cascade, namely a rapid, dramatic shift in the legitimacy of norms and actions on behalf of those norms,54 they argue that the endeavours of a transnational transitional justice advocacy network successfully opposed the defiance of recalcitrant governments stimulated a ‘rapid shift toward recognising the legitimacy of human rights norms in international and regional action to effect compliance with those norms.’55 They argue that ongoing norm penetration, public debate and pressure that human rights activists can muster at international and domestic level have mitigated the unwillingness of nascent democracies (who care about what other states are doing and global normative trends) to deal with issues of the past. Through statistical analysis they note a discernible increase in the judicialisation of transitional politics as manifest in increased numbers of trials and truth commissions, and assert it is unlikely to be reversed.56 Along similar lines, Sriram has argued that the past twenty years has seen a ‘revolution in accountability’ towards the creation of trials and truth commissions to deal with past human rights abuses.57 A shift towards the recognition of the legitimacy of the norms they have identified is undeniable, as indeed is the demand at national and international level for justice. These are inevitable by-products of the emergence of a vast advocacy network of professionals and NGOs, more of which anon. The widespread acceptance of a cascading trend toward increased international, regional, and domestic action to enforce this responsibility is by no means unanimous.58 Olsen, Payne and Reiter argue that if the justice cascade should prove true, as a matter of logic ‘the domestic considerations that drive minimalists to support amnesties, and moderates to endorse truth commissions, would yield to the accountability norm and the international and local pressures advancing it.’59 However, statistical analysis they conducted in 94 transitions analysed between 1970 and 2007 suggests that this demand has not translated into an observable adjustment by states to difficult (and sometimes repugnant) policies

54. 55. 56. 57. 58.

59.

Human Rights Trials in Latin America’, 2 Chicago Journal of International Law (2001) 1-34; Sikkink and Walling, ‘The Impact of Human Rights Trials’, supra note 37. Cass Sunstein, Free Markets and Social Justice (Oxford University Press, 1997). Lutz and Sikkink, ‘The Justice Cascade’, supra note 53, at 4. Sikkink and Walling, ‘The Impact of Human Rights Trials’, supra note 37, at 433. Chandra Lekha Sriram, ‘Revolutions in Accountability: New Approaches to Past Abuses’, 19 American University International Law Review (2003) 310-429. For example, it is accepted or discussed approvingly in, inter alia, Alexandra Barahona de Brito, ‘Transitional Justice and Memory: Exploring Perspectives’, 15 South European Society and Politics (2010) 359-376; Sriram, ‘Revolutions in Accountability’, supra note 57, at 396; Alexandra Huneeus, ‘Norms Trickling Down: Of Judges, the Justice Cascade and Pinochet Era Cases in Chile’, 5 Santa Clara Journal of International Law (2007) 352-357; Daniel Levy, ‘Recursive Cosmopolitization: Argentina and the Global Human Rights Regime’, 61 British Journal of Sociology (2010) 579-586 at 582; and throughout in Roht-Arriaza and Marrizcuena (eds.), Beyond Truth Versus Justice, supra note 40. Olsen, Payne and Reiter, Transitional Justice in Balance, supra note 3, at 99.

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of accountability or restoration.60 The cascade argument may claim too much, representing an increase in transitions, as opposed to a greater relative frequency of transitional justice. They point out, inter alia, that states are no more likely to conduct trials than they were thirty years ago (indeed, they argue transitional trial was most popular in the 1970s), that nothing was done in 34 out of the 94 transitions assessed, and that use of truth commissions is declining in relative terms.61 They furthermore cite Mallinder’s statistical examination of amnesty that demonstrates an increase in the use of amnesty, which remains the most popular mechanism applied.62 Literature review and statistical analysis of transitional justice therefore raise logical but contrary hypotheses, though some clarity is available in the thicket of argument and counterargument, even allowing for the large differences in methodology. Calculating the growth of transitional justice by the number or frequency of mechanisms is an imperfect methodology; indeed, the authors accept that such quantitative analyses say nothing about their real strength.63 Instead of a justice cascade, they appear to conclude that there exists a justice balance between sometimes contradictory policies like accountability and amnesty. The greatest impact of norm socialisation is instead observable in qualitative terms – a noticeably more holistic, multi-mechanism, context-specific approach has become the norm (examined in Chapter 5). The extent to which this is the product of principled actors refining norms and steering the state remains unclear because of differing strengths of the mechanisms and the distinct possibility that variety may be used to compensate for the weakness of certain mechanisms. Though the expansion of transitional justice suggests the triumph of accountability advocates in the diffusion of models of appropriate/mandatory action, practice demonstrates a more complex picture.

2.3 The Role of Advocacy The role of advocacy is therefore worth considering. Because the growth of transitional justice has appeared natural and inevitable, few of its advocates or detractors have thought to examine precisely how it went from being an amorphous and reactive series of disparate activities in a few countries at the end of the 1980s to the proactive, globalised sin qua non of state-building and democratic consolidation within a dozen years. Though there have been histories and genealogies of transitional justice as a phenomenon incorporating centuries of classical, Westphalian, post-war, post-Communist and post-New World Order

60. Ibid., at 27, 97, 98, 100-105. 61. Ibid., 99-104. 62. Louise Mallinder, Amnesty, Human Rights and Political Transitions: Bridging the Peace and Justice Divide (Hart Publishing: London, 2008) Ibid., at 26, 27. 63. Olsen, Payne and Reiter, Transitional Justice in Balance, supra note 3, at 103.

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developments,64 the separate issue of transitional justice’s intellectual and organisational history from its earliest days to the present has been under-examined.65 Much is presumed, but little is known, about whether or how advocates influence governments who initiate processes of transitional justice. For example, while transitional justice advocates often present themselves as fighting against governmental indifference to impunity, the historical record shows that many democratising governments are already favourably disposed towards justice and the rule of law because accountability and inquiry are hallmarks of functioning states. Many transitional states have rejected accountability not because it fundamentally rejects the premise of justice, but rather because the transition itself is little more than a chimera. The role of activism is rarely one of clear success or failure – at times practitioners are pushing against an open door, while on other occasions the prospects for effecting accountability or restoration are largely illusory. Sometimes the global transitional justice community has had a significant bearing on the government’s policy of reckoning with the past, but this should be presumed to be a uniform phenomenon. A detailed examination of how transitional justice has been perceived, advocated and organised over time not only explains its puzzling expansion, but presents a different picture to generalised assumptions of evolution and utopianism. It must first be explained why this is a study of transitional justice advocacy, and not one of scholarship nor of practice. Defining what advocacy is and who advocates are is a complex task given the absence of any established rules for recognition, but some clarity may be found by drawing on the conceptual framework of an epistemic community outlined by Haas as ‘a network of professionals with recognised expertise and competence in a particular domain and an authoritative claim to policy-relevant knowledge within that domain or issue64. As noted above, Elster, Bass and Osiel have presented transitional justice in even longer historical perspective. Teitel presents a three-stage genealogy of transitional justice, beginning with an internationalised, postwar phase (most notably the Nuremberg/Tokyo trials) whose progress was suspended by the vagaries of the Cold War. The second phase begun with the acceleration of the ‘third wave’ transitions that began in 1974, which paved the way for accelerated discourse of justice in conflict resolution but which depended primarily on national mechanisms hindered by national politics. This progress in turn led to a third, globalised, ‘steady-state’ phase of transitional justice which departed from a preoccupation with past violence to treat conditions of persistent conflict, laying the foundation for a normalised law of violence where transitional justice became commonplace as opposed to exceptional (Teitel, ‘Genealogy’, supra note 20). 65. It should be pointed out that Paige Arthur’s 2009 article ‘How “Transitions” Reshaped Human Rights: A Conceptual History of Transitional Justice’ (supra note 2) though invaluable and one to which this article is indebted, is something of a misnomer – it offers an unparalleled chronicle and critique of how transitional justice was initially conceptualised at the founding conferences of transitional justice between 1988 and 1994 and concludes with a brief, fourpage recapitulation of some examples of how the initial conceptual boundaries of transitional changed since (359-363).

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area.’66 One may dispute how recognised this expertise is or how authoritative the claims to knowledge are, but focusing on the concept of advocacy captures something of origin of the transitional justice community in what he observes as the typical variety of academic or professional backgrounds linked primarily by a set of unifying characteristics for the promotion of collective amelioration.67 Transitional justice discourse is dominated by a combination of both scholars and practitioners – there is a very significant overlap between them. Those most influential in practice frequently write and those most influential in the academy frequently practice, in the overwhelming majority of cases accepting and advertising the utility of transitional justice with the common purpose of improving how it operates and how it is understood. For example, M. Cherif Bassiouni and Theodor Meron coupled leading roles in founding and judging at the ICTY with vigorous exhortations on the value of international criminal accountability,68 while José Zalaquett served on the Chilean Truth and Reconciliation Commission but was also one of the main early theorists of transitional justice. 69 In the reverse direction, eminent practitioners like Priscilla Hayner and Alex Boraine became scholars founders of the International Centre for Transitional Justice.70 The fluidity between practitioners and scholars has at times led to unduly romantic ideas of transitional justice’s value, and does little to assuage the risk of bias. As Miller argues, because scholars and practitioners tend to become consultants to new justice projects rather than external critics of the enterprise, the role of advocates is not yet fully understood.71 It is perhaps unduly pejorative to describe transitional justice as an ‘industry’ as some have done,72 but it captures something of the essence of the professional body of researchers, administrators, lawyers, practitioners, donors and employees engaged in support activities that promote and implement it. It is estimated that there are over 2,500 current and former staffers at the ad hoc tribunals for Rwanda and Yugoslavia.73 The figures for transitional justice activists globally are likely to be many multiples of this 66. Peter M. Haas, ‘Introduction: Epistemic Communities and International Policy Coordination’, 46 International Organization (1992) 1-37 at 3. 67. Ibid. 68. Leslie Vinjamuri and Jack Snyder, ‘Advocacy and Scholarship in the Study of International War Crimes Tribunals and Transitional Justice’, 7 Annual Review of Political Science (2004) 345-362 at 348. 69. See Jose Zalaquett, ‘Balancing Ethical Imperatives and Political Constraints: The Dilemma of New Democracies Confronting Past Human Rights Violations’, 43 Hastings Law Journal (1992) 1425-1438. 70. Vinjamuri and Snyder, ‘Advocacy and Scholarship’, supra note 68, at 348-349. 71. Zinaida Miller, ‘Effects of Invisibility: In Search of the ‘Economic’ in Transitional Justice’, 2 International Journal of Transitional Justice (2008) 266-291 at 290. 72. For example Kimberley Theidon, ‘Editorial Note’, 3 International Journal of Transitional Justice (2009) 1-4 at 3; and Tshepo Madlingozi, ‘On Transitional Justice Entrepreneurs and the Production of Victims’, 2 Journal of Human Rights Practice (2010) 208-228 at 225. 73. Kritz, ‘Policy Implications’, supra note 23, at 14.

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number. It has spawned numerous centres (most notably the International Center for Transitional Justice, Norway’s Institute for Justice and Reconciliation as well as university institutes such as those at Harvard, Ulster, Oxford, Minnesota and Notre Dame), at least two dedicated journals (International Journal of Transitional Justice and the Transitional Justice Review) and an established circuit of conferences. The impact of advocacy is widely assumed. After all, transitional justice was born of the interactions of scholars, human rights activists and policy-makers, and they have retained their centrality74: ‘Transitional justice operates through the actions of a series of groups: policy makers who plan and implement the institutions; victim groups defined by commissions or courts; the larger citizenry implicated, but not named, by a final report or court decision; scholars who write the literature about specific country contexts or the phenomenon in general; and practitioners who work for nongovernmental organizations (NGOs) that consult on the possible manner of transition.’75

Depicted as typical norm entrepreneurs who attempt to convince a critical mass to embrace new norms,76 these very mobile groups and individuals have not been slow to advertise their impact. Transitional justice advocacy is often presented in heroic terms, speaking truth to power on behalf of disenfranchised masses, selflessly enduring rocky relationships with the state77 and reacting against the cynicism and betrayal of values inherent in the sovereign control of international affairs.78 The putative justice cascade has been characterised as the work of NGOs acting as activists, advertisers and pressure groups, starting with the efforts of small groups of activists domestically and mushrooming into a transnational network that fundamentally changed the environment in which state actors work.79 Speaking, like so many humanitarian groups, in the vocabulary of absolute normative commitment,80 it is argued that only through pressure from victims groups and NGO networks were states ‘goaded’ into creating justice mechanisms and making them effective.81 For example, NGOs have taken credit for the creation of the ad hoc courts by persuading liberal members of the Security Council of their 74. Arthur, ‘How “Transitions” Reshaped Human Rights’, supra note 2, at 324. 75. Miller, ‘Effects of Invisibility’, supra note 64, at 271. 76. Martha Finnemore and Kathryn Sikkink, ‘International Norm and Political Change’, 52 International Organisation (1998) 887-917 at 895. 77. Eric Brahm, ‘Transitional Justice, Civil Society, and the Development of the Rule of Law in Post-Conflict Societies’, 9 International Journal of Not-For-Profit Law (2007) 1-4 at 1. 78. Akhavan, ‘Mediating the Global and Local’, supra note 46, at 721. 79. Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions are Changing World Politics (W.W. Norton & Co.: New York, 2011) at 96-128; Brahm, ‘Civil Society’, supra note 77, at 3; Sriram, Confronting Past Human Rights Violations, supra note 18, at 24. 80. Kennedy, Dark Sides of Virtue, supra note 43, at 332. 81. Naomi Roht-Arriaza, ‘Institutions of International Justice’, 52 Journal of International Affairs (1999) 473-491 at 491.

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necessity,82 while a South African TRC (SATRC) road show has very influentially advertised it as a role model for other truth through ‘travelling salesmen’ such as Desmond Tutu and Alex Boraine.83 Undoubtedly, the cross-fertilisation of ideas has helped develop ideas of good practice among the proliferation of transitional justice mechanisms.84 For example, the Chilean TRC was designed as a conscious middle-path between the experiences of Uruguay and Argentina,85 the seminal 1992 Salzburg conference was specifically arranged to discuss what Eastern European transitions could learn from South American experiences86 and the Special Court for Sierra Leone was guided by pre-existing plans for Cambodia’s Extraordinary Chambers.87 Kritz may exaggerate only slightly when he contends that ‘a government’s decision to pursue a particular mechanism often depends less on well-grounded and proven policy considerations than on whether the junior member of staff writing the policy memo has some experience with the South African TRC or another transitional justice process.’88 However, for all the diffusion of experience, each transition displays infinite uniqueness. As the realists anticipated, the best-laid plans must interact with political reluctance, resource constraints and persistent apathy in the target communities. As a result, advocates have not always been employed in championing transitional justice. Among the foremost early theorists of transitional justice were Carlos Nino and Jaime Malamud-Goti, the recruited ‘advisor-philosopher’ architects of Argentina President Alfonsin’s accountability programme. Though the junta trials were explicitly premised on subordinating politics to ethics, they ultimately ended up drafting sophisticated rationalisations for their retreat in the face of military recalcitrance.89 Rhetorical commitment frequently does not translate into action, and the least effectual of mechanisms may be chosen in preference to more powerful processes. In many transitions, the reason why there is such a perceptible gap between the assertions of advocates and popular support for transitional justice is because much-trumpeted international commitments

82. Bass, Stay the Hand of Vengeance, supra note 29, at 33; Robert Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (Cambridge University Press, 2005) at 52; Jack Snyder and Leslie Vinjamuri, ‘Trials and Errors: Principle and Pragmatism in Strategies on International Justice’, 28 (4) International Security (2003) 5-44 at 42. 83. Luc Huyse, All Things Must Pass Except the Past (Van Halewyck: Kessel-Lo, 2009) at 152. 84. Miller, ‘Effects of Invisibility’, supra note 71, at 271-272. 85. Naomi Roht-Arriaza, ‘Role of International Actors’ in de Brito et al (eds.), The Politics of Memory, supra note 4, 40-64 at 43. 86. Bronwyn Anne Leebaw, ‘The Irreconcilable Goals of Transitional Justice’, 30 Human Rights Quarterly (2008) 95-118 at 100. 87. Neha Jain, ‘Conceptualising Internationalisation in Hybrid Criminal Courts’, 12 Singapore Yearbook of International Law (2008) 81-95 at 85. 88. Kritz, ‘Policy Implications’, supra note 23, at 14. 89. Osiel, ‘Why Prosecute?’, supra note 28, at 141-142.

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may not translate into national action. Civil society will often get involved after pacts are agreed, the ancien regime has fled, or power is shared: ‘The area of justice is the one in which civil groups are usually the least effective in shaping the course of talks, and where the two protagonists in the conflict act most expediently to protect their interests. It is one of the most elitist of all the issues in transitional negotiations, and the one in which leaders are most likely to reach a deal over the heads of ordinary people.’90

If, as Brahm suggests, civil society is typically weak, disorganised and lacking independence in transitional states,91 it may be that the process of articulating demands for justice helps NGOs more so than vice-versa.92 Civil society plays a valuable role in implementing, monitoring, scrutinising and advancing national ownership in most transitional justice mechanisms, but is rarely causally significant in the decision about which mechanisms to adopt.93 Advocates may act as counterweights to groups seeking immunity and raise the political cost of not prosecuting, but these considerations may nevertheless operate on the margins of political decision-making when there is a realistic prospect of peace being jeopardised.94 Where the transition is less imperilled, democratising, liberalising states may choose to pursue justice and truth not because of pressure from advocates, but because this is what democratising and liberalising states do. Transitional justice advocacy has more often taken the form of justifying and improving weak mechanisms rather than materially determining the creation of strong programmes. As chapters 4 and 5 go on to illustrate, practitioners and NGOs have rarely succeeded in forestalling amnesty, but have sometimes prospered in limiting its effect. It is presumed in the literature that the growth in restorative justice is due to the flaws of a strictly retributive paradigm, but it might equally be explained by the reluctance of governments to allow retributive

90. Richard A. Wilson, ‘Justice and Legitimacy in the South African Transition’ in De Brito et al (eds.), The Politics of Memory, supra note 4, 190-217 at 198. 91. Brahm, ‘Civil Society’, supra note 77, at 1. 92. For example, Alexander argues that truth commissions “can also have a positive impact on strengthening civil society, inspiring the creation of organisation and initiatives, such as victim support groups.” (Jane Alexander, A Scoping Study of Transitional Justice and Poverty Reduction (Department for International Development: London, 2003) at 33), while de Greiff notes a strong catalytic role for transitional justice measures in stimulating the development of civil society (Pablo de Greiff, ‘Theorizing Transitional Justice’ in Melissa Williams, Rosemary Nagy and Jon Elster (eds.), Transitional Justice (New York University Press, 2012) forthcoming, 1-30 at 24). 93. Mirielle Affa’a-Mindzie, ‘Transitional Justice, Democratisation and the Rule of Law’ in Chandra Lekha Sriram and Suren Pillay (eds.), Peace Versus Justice? : The Dilemma of Transitional Justice in Africa (James Currey: Suffolk, 2010) 113-134 at 118. 94. Diane F. Orentlicher, ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Legal Regime’, 100 Yale Law Journal (1991) 2537-2615 at 2549; and Bass, Stay the Hand of Vengeance, supra note 29, at 33-35.

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justice.95 The most celebrated examples of activity by advocates such as clandestine, church-sponsored NGO reports on human rights abuses in Brazil and Guatemala, private prosecutions in Chile and Greece or pushing for universal jurisdiction in the Pinochet case occurred because civil society was unsuccessful in making normative change a political reality. The story of transitional justice is as much one of unintended consequences as it is of deliberate actions, let alone of historical necessity. In terms of Sunstein’s typical three stage norm cascade,96 transitional justice advocates firstly have called attention to issues by naming, interpreting and dramatising them, and secondly have advanced the socialisation of the norms of accountability, truth and restoration towards a universal rhetorical acceptance. However, the third stage where this logic of appropriateness becomes deeply imbued in law, bureaucratic rules and professional standards that states unquestioningly conform out of conviction and habit has been conspicuous by its absence in too many transitions.97 Ever since initial debates over whether to pursue truth and accountability or to do nothing was resolved in favour of the former, it has been assumed that ideas have won out over pragmatism. A review of transitional justice’s history reveals that ideas certainly matter, but considerably less than is commonly assumed. One of the key-tasks is to de-romanticise the role of civil society, activists and scholars.

3. Stage I: Peace Versus Justice Though transitional justice as a distinctive, self-conscious policy-making process dates only to the late 1980s, it is widely accepted that the post-World War II trials at Nuremberg, Tokyo and the domestic European trials that complemented them mark the historical starting point of the phenomenon.98 It is commonly accepted that the process of internationalising transitional accountability was foreclosed by the emergence of the Cold War which entrenched Westphalian philosophies of non-interference by deferring to the judgement of national governments as the most apt means of addressing past human rights abuses.99 The Cold War’s end meant that the rhetoric of human rights was no longer hostage to superpower politics, that the services of friendly tyrants could be dispensed with and, conse95. 96. 97. 98.

Andriu, ‘A New Discipline’, supra note 24, at 9. Sunstein, Free Markets and Social Justice, supra note 54. Finnemore and Sikkink, ‘International Norm and Political Change’, supra note 76, at 904-905. Eg Andriu, ‘A New Discipline’, supra note 24, at 4; Arthur, ‘How “Transitions” Reshaped Human Rights’, supra note 2, at 342; McEvoy, ‘Beyond Legalism’, supra note 7, at 415; Martha Minow, Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence (Beacon Press: Boston, 1998) at 27-28. 99. Christopher Joyner, ‘Redressing Impunity for Human Rights Violations: The Universal Declaration and the Search for Accountability’, 26 Denver Journal of International Law and Policy (1998) 590-624 at 593-594.

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quently, that crimes of the near or distant past could be examined. The fact that it also unleashed a number of wars in unstable transitions previously held in check by US-USSR antagonism would later to prove equally important in stimulating transitional justice’s development.100 There is a risk, however, that this presentation of transitional justice overemphasises the significance of the post-war ‘quaint irrelevance’ of international criminal law.101 While its origins lay in inter-state conflict, internationalisation has never been the defining feature of the field, either in terms of what we understand as transitional or what we understand as justice. Debates in the south European transitions of the 1970s were very much domestic in nature102 and, as will be seen, transitional justice had advanced in Argentina in the late 1980s with little reference to international criminal law.103 Nevertheless, it is clear that by the late 1980s the universal language of human rights had begun to permeate political discourse in states where Cold War authoritarianisms were losing their grip, forming the basis for moral opposition to existing regimes.104 In the decade after the development of human rights monitoring mechanisms in the Council of Europe, OAS and UN, the Helsinki Accords, and the emergence of Amnesty International and what became Human Rights Watch (and in particular after the post-1985 surge in human rights treaty ratifications),105 it was clear that debates over accountability in South America would employ the language of human rights to a greater extent than the second-wave transitions of the 1970s,106 particularly in light of the Inter-American Court of Human Rights’ Velasquez Rodriguez decision confirming the state’s extensive duty to investigate and punish human rights violations.107

3.1 The Transitional Straightjacket In this first stage, the debate was largely framed by what Przeworski calls the ‘transitions by extrication’ in South America and later in Eastern Europe where the ancien regimes, though discredited and isolated, retained a significant degree of institutional support in the army and civil service nomenklatura which could 100. Ken Jowitt, New World Disorder: The Leninist Extinction (University of California Press, 1993). 101. Mégret, ‘Politics of International Criminal Justice’, supra note 38, at 1261. 102. Most notably, after the military regime was removed in Greece in 1973, 400 members of the military and police were tried on charges of torture. 103. De Brito et al, ‘Introduction’, supra note 50, at 23. 104. Key texts include Samuel P. Huntingdon, The Third Wave: Democratization in the Late Twentieth Century (University of Oklahoma University Press, 1991), Guillermo O’Donnell, Philippe Schmitter and Laurence Whitehead, Transitions From Authoritarian Rule: Prospects for Democracy (Johns Hopkins University Press, 1991). 105. Lutz and Sikkink, ‘The Justice Cascade’, supra note 53, at 15. 106. De Brito et al, ‘Introduction’, supra note 50, at 22-23. 107. Velasquez Rodriguez v. Honduras, Inter-American Court of Human Rights (1988) Ser. C, No. 4, paras 161-182. Found in 9 Human Rights Law Journal (1998) 212-242.

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be employed to destabilise or overthrow the new liberalising governments.108 At the time, both advocates and politicians were preoccupied with the formidable question of how to balance legal and moral imperatives of accountability for past political violence with the constraints imposed by transitional power-balances. Whereas today transitional justice advocates concern themselves with peacebuilding, social healing and socio-economic reform, their initial aspirations were premised on the fundamental but considerably more circumscribed value of non-recurrence through consolidation of liberal democracy. There was nothing new about transition of course, it being as perennial as political organisation itself. However, transition had historically proceeded in purely political terms with a merely nominal or non-existent role for law.109 Transition changed in terms of quality and quantity after the eclipse of Cold War stasis. In this period, there was an observable broad international consensus in favour of liberal democracy as the best political settlement,110 which interacted with (i) an unprecedented quantity of transitions (over one third of all transitions between 1970 and 2007 occurred in the years 1990-1992)111 and (ii) the aforementioned permeation of human rights standards to foreground issues of justice. As Teitel argued, ‘a depoliticized legalist language of right and wrongs, duties and obligations, is supplanting the dominant political language based on state interests, deliberation and consensus.’112 While the paradigmatic transition is generally framed by two modes of regime change, namely a compact (understood as negotiated compromises between antagonists) or a rupture (understood as the overthrow or defeat of one side of a political or military conflict),113 the former was by far the more common in the South American and Eastern European transitions in Stage I of transitional justice. These transitions typically had three phases – the abertura (opening) where some liberalisation is forced by pressure from below (civil society) and abroad, followed by the actual process of transition defined politically by pacts, agreements, elections, referenda, constitutions, and peace treaties, and finally consolidation where danger of revanchism recedes and institutions of democracy take root.114 Moving from abertura to democratic consolidation was the dominant normative lens through which all dilemmas of 108. Adam Przeworski, Democracy and the Market: Political and Economic Reforms in Eastern Europe and Latin America (Cambridge University Press, 1991) 67ff. 109. Francois DuBois and Adam Czarnota, ‘The Transitional Rule of Law’, 24 Alternative Law Review (1999) 9-19 at 9. 110. Lutz and Sikkink, ‘The Justice Cascade’, supra note 53, at 17. 111. Olsen, Payne and Reiter, Transitional Justice in Balance, supra note 3, at 103. 112. Ruti G. Teitel, ‘Humanity’s Law: Rule of Law for the New Global Politics’, 35 Cornell International Law Journal (2002) 355-387 at 372. 113. Fionnuala Ní Aoláin and Colm Campbell, ‘The Paradox of Transition in Conflicted Democracies’, 27 Human Rights Quarterly (2005)172-213 at 180. 114. Jorge Heine, ‘All the Truth But Only Some Justice? Dilemmas of Dealing With the Past in New Democracies’ in William A. Schabas, Edel Hughes and Ramesh Thakur (eds.), Atrocities

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transition would be viewed, but what at the time seemed most significant was the consciousness of how precarious or expedient law specifically could be in mediating the shift between the two.115 If transition was not uncommon in the past, then neither was accountability. As noted earlier, criminal justice processes had been seen in Nuremberg, Tokyo and post-war Western Europe as well as Greece and Argentina before the late 1980s, as were truth commissions in the likes of Argentina and Uganda. However, these responses were incoherent and haphazard – there were no institutions or blueprints. In the aforementioned transitions, substantive conceptions of justice had occasionally been realised, but in too many others transitions justice was merely a ‘Sunday belief,’ one that could command subjective assent without affecting actual behaviour to accomplish it.116 Before the 1980s the need to deal with the past was frequently not apparent in many transitions,117 while in others there appeared simply to exist a binary choice between lynching, executions or impunity through blanket amnesty.118 Transitional justice was not invented ab initio in the late 1980s - the challenge that now appeared was to translate the previous mélange of isolated activities or inactions into a legally coherent field of related, particularised bargains. It was apparent that the unique set of dilemmas and modalities of justice in transition differed greatly from those of ordinary justice on account of its potential to maintain order, transform or endanger it, hence it was necessary to develop an ‘intellectual framework’ to clarify policy options that had hitherto been missing in states which eschewed or pursued justice in the past.119

3.2. Understanding Justice in Transition Though these policy options could loosely be categorised as ethical, practical and legal,120 the degree to which the first and second quandaries dominated discussions gives the lie to later claims that transitional justice was initially perceived as a sub-discipline of international law.121 Indeed, it is worth noting that the and International Accountability : Beyond Transitional Justice (United Nations University Press, 2007) 65-79 at 68. 115. Richard Lewis Siegel, ‘Transitional Justice: A Decade of Debate and Experience’ 20 Human Rights Quarterly (1998) 431-454 at 433; Lutz, ‘Lessons Learned’, supra note 40, at 326. 116. Elster, Closing the Books, supra note 27, at 81. 117. Kritz, ‘Policy Implications’, supra note 23, at 14. 118. Jelena Subotic, ‘The Paradox of International Justice Compliance’, 3 International Journal of Transitional Justice (2009) 362-383 at 362. 119. Arthur, ‘How “Transitions” Reshaped Human Rights’, supra note 2, at 327. 120. José Zalaquett, ‘Confronting Human Rights Violations Committed by Former Governments: Principles Applicable and Political Constraints’ in Alice H. Henkin (ed.), State Crimes: Punishment or Pardon – Papers and Report of the Conference (Aspen Institute: Wye, Maryland, 1989) 23-70 at 26. 121. McEvoy, ‘Beyond Legalism’, supra note 7, at 439.

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1988 Aspen Institute conference on state crimes, which is widely regarded as the place where transitional justice was initially structured as a field, occurred as a conscious response to Argentina’s ‘Full Stop’ Law dictating the end of investigation and prosecution against people accused of political violence during military rule.122 As this article goes on to argue, this set a pattern of transitional justice as a reactive, creative response to political constraints from which it has rarely escaped. The fulcrum of the debate was whether it was prudent or not to pressure nascent democracies to undergo potentially destabilising processes of accountability.123 Transitional politics, more so than transitional justice, was the dominant paradigm. It involved the sacrifice of the rule of law for its antithesis, impunity, in the interests of stability. Former Argentine President Alfonsin summarised the dilemma best: ‘Our common sense seems to support both positions; that a voluntarily committed act is deserving of punishment, and that the social consequences of applying this punishment must be considered. It would be irrational to impose a punishment when the consequences of doing so, far from preventing future crimes, may cause greater social harm than that caused by the crime itself or by the absence of punishment.’124

The nature of what became widely known as the peace versus justice debate125 was such that even committed democrats and human rights activists acquiesced to limited criminal sanctions, amnesty and impunity.126 This arose from what Elster calls ‘hard constraints’ produced by negotiated transitions where justice is a bargaining chip, with impunity traded for justice. It was recognised that insistence on justice could delay a peace that otherwise looked inevitable by ‘stiffening the will to resist’ of authority figures in negotiations.127 In such a context, pursuit of justice was deemed unfeasible, perhaps best exemplified by the Chilean dictator Augusto Pinochet’s warning ‘Touch one hair on the head of my soldiers, and you

122. Arthur, ‘How “Transitions” Reshaped Human Rights’, supra note 2, at 349. 123. Diane F. Orentlicher, ‘“Settling Accounts” Revisited: Reconciling Global Norms with Local Agency’, 1 International Journal of Transitional Justice (2007) 10-22 at 12. 124. Raul Alfonsin, quoted in Sriram, Confronting Past Human Rights Violations, supra note 18, at 1. 125. For a review of the debate in these terms see Richard Goldstone, ‘Peace Versus Justice’, 6 Nevada Law Journal (2005-06) 421-424; Aurelien Colson, ‘The Logic of Peace and the Logic of Justice’, 15 International Relations (2000) 51-62; Ira William Zartman and Victor Kremenyuk, Peace Versus Justice: Negotiating Forward- and Backward-Looking Outcomes (Rowman & Littlefield: Oxford, 2005). 126. As Aryeh Neier, one-time Director of Human Rights Watch. Put it: ‘Permitting the armed forces to make themselves immune to prosecution for terrible crimes seems intolerable; yet it also seems irrational to insist that an elected civilian government should commit suicide by provoking its armed forces.’ Aryeh Neier, ‘What Should be Done About the Guilty?’, New York Review of Book (1 February 2000) 34-40 at 34. 127. Elster, Closing the Books, supra note 27, at 93.

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lose your new democracy.’128 His recalcitrance forced the new Chilean President Aylwin to abandon a proposed series of trials for limited truth commission that could not name perpetrators.129 It was in this milieu of moving from authoritarianism to more participatory forms of government that transitology as a subfield of comparative politics emerged.130 To the very limited extent that it focused on issues of justice, the dominant Southern Cone political scientists took a dim view of the prospects and utility of transitional accountability. In one of the seminal works in the area, O’Donnell and Schmitter argued that even if the incoming leadership employed courage and skill to this end, the most that could be said was that ‘it may not necessarily be suicidal for a nascent democracy to confront the most reprehensible facts of its recent past.’131 This grudging realpolitik was at considerable odds with the advances in international human rights law and practice, and compelled the aforementioned Aspen Conference of human rights scholars, journalists, transitologists and politicians from transitioning and pre-transitional states to analyse whether and how successor governments should deal with the crimes of the ancien regime.132 The title of the Conference’s Report, State Crimes: Punishment or Pardon, testifies to a hesitation over issues of justice that contrasts dramatically with the temerity that characterised later years. It was here that debates by what should probably be described as transitional justice’s first-generation scholars were initially rehearsed, the first iteration of the realist versus idealist contest that would become wearily familiar. Herz and Malamud-Goti argued on the basis of their experiences that political judgment of liberalising regimes was paramount in developing putative justice policies.133 Zalaquett contended that new rulers in these cases follow a commendable Weberian ethical maxim of responsibility by considering the predictable consequences of the actions instead of an ethic of conviction about what is right.134 Later, credible fears of unfair trial135 and a revived McCarthyism led many Western liberals to discreetly promote active 128. Douglas Cassell, ‘Book Review and Note: Transitional Justice and the Rule of Law in New Democracies. Edited by A. James McAdams’, 92 American Journal of International Law (1998) 601-605 at 602. 129. Sriram, Confronting Past Human Rights Violations, supra note 18, at 46. 130. Kritz, ‘Where We Are’, supra note 14, at 22 estimates that 150 works had been completed on transition between 1970 and 1989, while two leading journals (the Journal of Democracy and Democratization) published their first volumes in 1990. 131. Guillermo O’Donnell and Philippe C. Schmitter, Transitions from Authoritarian Rule: Tentative Conclusions About Uncertain Democracies (Johns Hopkins University Press, 1986) at 32. 132. See generally Henkin (ed.), State Crimes, supra note 120. 133. Arthur, ‘How “Transitions” Reshaped Human Rights’, supra note 2, at 353-354. 134. Zalaquett, ‘Ethical Imperatives and Political Constraints’, supra note 69, at 1429 citing Max Weber, ‘Politics as a Vocation’ in H.H Gerth and C. Wright Mills (eds. and trans.), From Max Weber: Essays in Sociology (Oxford University Press, 1958) 77-128. 135. Zalaquett, ‘Ethical Imperatives and Political Constraints’, supra note 69, at 1427.

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forgetfulness. 136 On the other hand, the likes of Neier and Mendez rejected the subordination of democratic politics to duress and advanced a just desserts theory of punishment informed by international law where impunity would call into question the bona fides of the new dispensation.137 Far from straining the bounds of coherence, it became clear that it was this normative aim of facilitating transition to democracy, albeit disputed by those advancing contrasting maximalist and minimalist positions, that made transitional justice distinct from straightforward human rights discourse.138 The stability versus justice debate was never fundamentally resolved, but by the time of Charter 77’s seminal 1992 Salzburg ‘Justice in Times of Transition’ conference (which, it might be said, book-ends Stage I) to define the best way of organising the transition from dictatorship to democracy,139 it was clear that there had occurred a distinct shift from acquiescence to assertiveness: ‘At the policy level, the international human rights community has moved from a widely shared position of deference to the judgments of transitional governments to a generally assertive stance opposing wholesale impunity.’140

3.3. Progress: Clarifying Law and Limiting Amnesty Though there would always be political and economic counter-weights to accountability, there was an increasing belief that international and domestic pressure could off-set the political risks.141 The basis for this position was that through the articulation of transitional justice arguments, law began to move from its position at the margins of the debate to the centre. As Arthur notes, at the Aspen conference the perceived basis in international law for arguing that there was a legal obligation to punish violators of human rights was thin and uncertain.142 Indeed, the fear that use of international law would stir revanchist nationalism seemed stronger than the argument that it could catalyse accountability.143 At Aspen, Diane Orentlicher was specifically entrusted with the task of examining

136. Stephen Holmes, ‘The End of Decommunization’, 3 East European Constitutional Review (1994) 33-36 at 33. 137. Arthur, ‘How “Transitions” Reshaped Human Rights’, supra note 2, at 354. 138. DuBois and Czarnota, ‘The Transitional Rule of Law’, supra note 109, at 10, Arthur, ‘How “Transitions” Reshaped Human Rights’, supra note 2, at 358, Bell, ‘Field’, supra note 16, at 7. 139. Andriu, ‘A New Discipline’, supra note 24, at 2. 140. Diane Orentlicher, ‘The Role of the Prosecutor in the Transition to Democracy in Latin America’ in Irwin P. Stolsky (ed.), Transition to Democracy in Latin America: The Role of the Judiciary (Westview Press: Boulder, Colorado, 1993) 249-268 at 250. 141. Olsen, Payne and Reiter, Transitional Justice in Balance, supra note 3, at 15. 142. Arthur, ‘How “Transitions” Reshaped Human Rights’, supra note 2, at 352-353. 143. Mark Osiel, Mass Atrocity, Collective Memory and the Law (Transaction Publishers: New Brunswick, 1997) at 205.

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the issue.144 She responded in 1991 with a widely-cited article arguing that a wide range of treaty-based and customary obligations to punish serious crimes existed which could be satisfied with selective accountability but breached by wholesale impunity. She addressed the hitherto dominant question of the risk of authoritarian reversal by contending that states should be willing to take risks to ensure accountability which could be mitigated by judicious employment of prosecutorial selectivity.145 Though the piece drew direct criticism from the more realist school,146 the unwillingness to defer absolutely to sovereign governmental determination on how human rights obligations were to be fulfilled and the as-yet unproven notion that international law could transcend the dilemmas of transition constituted a decisive shift. The possibility of robust justice measures began its move from ought to obliged. Soon after, a general consensus emerged on the need for states to address past crimes and deny impunity.147 In the space of a few years, what was now understood as transitional justice shifted from a marginal concern of dubious validity to what one writer at the tine described as ‘the preeminent issue of political ethics.’148 Undoubtedly, the mere acknowledgement of the need to deal with the past was a significant conceptual leap. Nevertheless, the difference between articulation of ideas and implementation in practice remained evident - progress at this stage should not be exaggerated. The most that can be said is that impunity was no longer the presumptive outcome, which of course was not the same as firmly establishing a norm of accountability. The scope of international duties to prosecute had been sketched, but made little impact in ongoing processes in South America or the Eastern Bloc, while the international institutions and political willingness to meet these obligations were years away. Complete inaction by a government, almost unthinkable in the modern day, could still be pursued in Mozambique in the early 1990s.149 The ambiguous nature of transitional justice’s progress is visible in the area where it clearly had the most effect, namely amnesty. Prior to first stage of transitional justice, amnesty enjoyed positive connotation, denoting freedom for political prisoners and serving as the animating principle of Amnesty International.150 However, over time it became recognised as a rhetorical fig-leaf for expedient self-preservation on 144. Orentlicher, ‘“Settling Accounts” Revisited’, supra note 123, at 12. 145. Orentlicher, ‘Settling Accounts’, supra note 94, at 2548-2549 and 2598. 146. Carlos S. Nino, ‘The Duty to Punish Past Abuses of Human Rights Put into Context: The Case of Argentina’, 100 Yale Law Journal (1990) 2619-2640, rejecting the validity of a duty to selectively punish and arguing that this emerging duty was too rigid considering the transitional ecology, that the ‘unrelenting’ duty to punish might make the new regime leaders look weak. 147. Mendeloff, ‘Curb the Enthusiasm’, supra note 8, at 355; Orentlicher, ‘“Settling Accounts” Revisited’, supra note 123, at 13. 148. Zalaquett, ‘Ethical Imperatives and Political Constraints’, supra note 69, at 1426. 149. John L Hirsch, ‘Peace and Justice: Mozambique and Sierra Leone Compared’ in Sriram and Pillay (eds.), Peace Versus Justice, supra note 93, at 202-219. 150. Huyse, All Things Must Pass, supra note 83, at 66.

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the part of outgoing abusive regimes.151 A selective understanding of Article 6(5) of the Additional Protocol to the Geneva Conventions requiring authorities to grant the widest possible amnesty to those who participated in conflict did little to dissuade human rights abusers from self-absolution.152 Amnesty remained a useful bargaining piece in South American peace negotiations in the 1980s153 and was even promoted in the early 1990s by the UN in Haiti and Liberia.154 In the Cambodian peace accords in the early 1990s UN negotiators even attempted to block provisions that would have allowed for prosecution of the Khmer Rouge.155 However, by the middle of the decade human rights groups were mobilising in significant number to challenge amnesties. ‘[T]he human rights movement suddenly planted serious questions about such immunity measures’ legitimacy through three main arguments: first, international law creates a state duty to investigate, prosecute, and punish those responsible for serious violations of human rights; second, international law also provides victims a fundamental right to justice....; and third, post-conflict policy recognizes that criminal justice is good for democracy and the rule of law.’156

Though amnesty remained popular in African transitions in the 1990s,157 it was apparent by the time of the Guatemalan and Bosnian peace agreements that amnesty was beginning to accord more with international norms (in the former) and was meeting greater international resistance (in the latter).158 The radical change in the legitimacy of amnesty was made clear in the dissent in Sierra Leone’s Lomé Peace Agreement which the UN representative signed with the caveat that the UN would not recognise amnesty for acts of genocide, crimes against humanity, war crimes, and other serious violations of international humanitarian law, as per the request of the Security Council.159 By the time of the UN’s seminal Rule of Law and Transitional Justice Report in 2004, the world organisation’s firm position was 151. UN Economic and Social Council, Commission on Human Rights, Question of the Impunity of Perpetrators of Human Rights Violations (Civil and Political): Revised Final Report of Mr Joinet Pursuant to Sub-Commission Decision 1996/119, UN Doc. E/CN.4/Sub.2/1997/20/Rev.1 (2 December 1997), at para. 3. 152. William A Schabas and Ramesh Thakur, ‘Concluding Remarks: The Questions That Still Remain’ in Schabas, Hughes and Thakur (eds.), Atrocities and International Accountability, supra note 114, 275-285 at 276-277. 153. Guatemala, Peru, Honduras, Haiti, El Salvador, Brazil, Argentina, Chile, Uruguay. 154. Roht-Arriaza, ‘The Role of International Actors’, supra note 85, at 41. 155. Michael P Scharf and Paul Williams, ‘The Functions of Justice and Anti-Justice in the PeaceBuilding Process’, 35 Case Western Reserve Journal of International Law (2003) 161-190 at 184. 156. Lisa Laplante, ‘Outlawing Amnesty: The Return of Criminal Justice in Transitional Justice Schemes’, 49 Virginia Journal of International Law (2008-09) 915-984 at 918. 157. South Africa, Cote d’Ivoire, Algeria, Sierra Leone, Liberia. 158. Roht-Arriaza, ‘The Role of International Actors’, supra note 85, at 41. 159. Seventh Report of the Secretary-General on the United Nations Observer Mission in Sierra Leone, UN Doc. S/1999/836 (1999) at para. 7.

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that amnesty should not be included in peace agreements and Security Council mandates.160 Because the presumption of legality that formerly attached to amnesties was now conclusively rebutted and blanket amnesties deemed impermissible, progress is therefore apparent.161 However, it is a highly qualified success. As noted earlier, the actual number of amnesties grew dramatically in the 1990s and they remain the most popular mechanism.162 In transitions outside the relatively rare occurrence of UN control, the most that can be said is that the type of amnesty granted has been modified, from ‘broader to more tailored, from sweeping to qualified, from laws with no reference international law to those which explicitly try to stay within its strictures,’ suggesting an undiminished inevitability.163 Notwithstanding opposition on the part of NGOs, civil society and activities, the gaps in international law in relation to the prosecution requirement mean there is still considerable uncertainty as to which amnesties are permissible and which are not.164 It is of course arguable, as Bell asserts, that this uncertainty is in fact welcome given that it allows for affirmation of a duty to combat impunity but leaves scope for flexibility in peace negotiations,165 but this merely confirms the contingent nature of the purported justice cascade. In the years of Stage I, the change, articulation and dissemination of norms was not yet followed by firm action – truth commissions primarily designed to deliver impunity and amnesty remained common. Though all transitional justice activity is implicitly political, examination of subsequent stages demonstrates that the macro-level politics of stability would remain more the master of transitional justice norms rather than vice versa, though advocates would work creatively and productively within these constraints.

4. Stage II: Truth Versus Justice Within a few years of the enunciation of transitional justice’s basic principles, it was apparent that a paradigm shift in attitudes had occurred, whereby nonimpunity was acknowledged as an essential part of any transition, even if the 160. UN Secretary-General, Rule of Law and Transitional Justice, supra note 1, at para. 64. 161. Laplante, ‘Outlawing Amnesty’, supra note 156, at 918 162. Olsen, Payne and Reiter, Transitional Justice in Balance, supra note 3, at 99-10 and Mallinder, Amnesty, Human Rights and Political Transitions, supra note 62, at 26, 27. 163. Naomi Roht-Arriaza and Lauren Gibson, ‘The Developing Jurisprudence on Amnesty’, 20 Human Rights Quarterly (1998) 843-885 at 884. 164. Charles P Trumbull, ‘Giving Amnesties a Second Chance’, 25 Berkeley Journal of International Law (2007) 283-345 at 285. 165. Christine Bell, ‘The ‘New Law’ of Transitional Justice’ in Kai Ambos, Judith Large and Marieke Wierda (eds.), Building a Future on Peace and Justice: Studies on Transitional Justice, Peace and Development, The Nuremberg Declaration on Peace and Justice (Springer: Berlin, 2009) 105-126 at 105.

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precise modalities of accountability remained hostage to the progress of political change.166 As Kennedy argues, humanitarians are ‘quick to conclude that emancipation means progress forward from the natural passions of politics into the civilised reason of law.’167 The aforementioned assumption that transitional justice and its still-loosely defined goals were ‘by definition a good thing’ had very much taken root.168 NGOs like Amnesty International and Human Rights Watch in particular showed a strong ideational preference for accountability. By the mid90’s, transitional justice advocates had succeeded in convincing donors of the necessity of accountability.169 Whereas before the question was whether any form of accountability would jeopardise peace, now transitional justice was routinely written into peace agreements, ostensibly demonstrating a rapid interpretative interaction between peace processes and normative assertion.170 A rough template of civil society opposition to amnesty, pardon or civil immunity, followed by public inquiry to establish individual and collective responsibility, and finally the possibility of trial was established.171 With a settled consensus on the intolerability of impunity,172 the debate had very clearly shifted from whether or not to pursue justice to what type of justice should be pursued.173 The binary choice of justice or impunity was resolved in favour of the former, with the inevitable consequence that multiple conceptions of justice would emerge.174 At the core of the debate were the simultaneous operations of the ad hoc tribunals for the former Yugoslavia and Rwanda, two paradigmatically contradictory institutions of unprecedented strength.

166. Neil J Kritz, ‘War Crimes Tribunals and Truth Commissions: Some Thoughts on Accountability Mechanisms for Mass Violations of Human Rights’, paper presented at USAID Conference Promoting Democracy, Human Rights and Reintegration in Post-Conflict Societies’(31 October 1997), at 2. 167. Kennedy, Dark Sides of Virtue, supra note 43, at 19. 168. Lutz, ‘Lessons Learned’, supra note 40, at 339. 169. Rama Mani, ‘Editorial: Dilemmas of Expanding Transitional Justice, or Forging the Nexus between Transitional Justice and Development’, 2 (3) International Journal of International Transitional (2008) 253-256 at 256. 170. Bell, ‘New Law’, supra note 165, at 122. 171. Stanley Cohen, ‘State Crimes of Previous Regimes: Knowledge, Accountability, and Policing the Past’ 20 Law and Social Inquiry (1995) 7-50 at 11. 172. Though in the course of the Bosnian war peace negotiations at Dayton in 1995, it would enjoy a spirited last hurrah (Payam Akhavan, ‘Justice in The Hague, Peace in the Former Yugoslavia? A Commentary on the UN Human Rights Tribunal’, 20 Human Rights Quarterly (1998) 737-816 at 738). 173. Rachel Kerr and Eirin Mobekk, Peace & Justice: Seeking Accountability After War (Polity Press: London, 2007) at 2; Rosemary Nagy, ‘Transitional Justice as a Global Project: Critical Reflections’, 29 (2) Third World Quarterly (2008) 275-289 at 276. 174. Teitel, ‘Genealogy’, supra note 20, at 76.

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4.1 The Narrative of Conflict to Complementarity This era has typically been presented in a progressist manner as one where truth versus justice (understood as criminal trial) clashed,175 with many scholarly works and NGO papers framed explicitly in this manner.176 This discord was deemed to have generated ‘unhelpful and overly simplistic solutions (e.g., truth commissions promote and prioritize forgiveness while trials are essentially divisive’),177 until this disruptive orthodoxy in turn gave way to a more enlightened preference for integration of truth commission and trial over a Solomonic choice between the two.178 In retrospect, this debate was grossly simplified, the most obvious retorts being that truth is a form of justice and vice versa, and that isolated examples of lustration/purges, civil liability and restitution/reparation programmes were also being undertaken at the time, making clear the choice was never entirely binary. However, there is no doubt that the assumed polarity existed from the very earliest days of transitional justice as a result of the South American transitions’ explicit choice of truth with amnesties over criminal accountability.179 Indeed, governments have consistently believed that different measures can be traded off against one another.180 What is more surprising is the extent to which scholars and advocates took the issue further in deliberately and explicitly pitching one against the other, and the length of time it took to reach the obvious consensus that combination trumped division.181 There may be an element of the zeal of the convert – with the release from the strictures of the peace v. justice debate, free reign could be given to vigorous assertions of the efficacy of a preferred mechanism: ‘Once assumed to stand at odds with negotiated transitions by undermining efforts to reach elite compromise that would “stop the killing” by prioritizing accountability over reconciliation, transitional justice was now adopted enthusiastically

175. Laplante, ‘Outlawing Amnesty’, supra note 156, at 917; Nagy, ‘Critical Reflections’, supra note 173, at 276. 176. In terms of academic work, see for example Rotberg and Thompson (eds.), Truth v. Justice, supra note 31; or Donald W Shriver, ‘Truth Commissions and Judicial Trials: Complementary or Antagonistic Servants of Public Justice?’, 16 Journal of Law and Religion (2001) 1-33, while Roht-Arriaza and Marrizcuena named their edited volume Beyond Truth Versus Justice (supra note 40). For NGO discourse, see for example Human Rights Watch’s Reed Brody article ‘Justice: The First Casualty of Truth’, 272 (17) The Nation (2001) . 177. Office of the United Nations High Commissioner for Human Rights, ‘Rule of Law Tools for Post-Conflict States: Prosecution Initiatives’, < www.ohchr.org/Documents/Publications/ RuleoflawProsecutionsen.pdf> at 10. 178. Roht-Arriaza, ‘New Landscape’, supra note 19, at 8. 179. Alexander, A Scoping Study of Transitional, supra note 92, at 9. 180. De Greiff, ‘Theorizing Transitional Justice’, supra note 92, at 2. 181. Of course, it is less surprising if one views the truth versus justice debate as a modified form of the peace versus justice debate with truth’s amnesty serving as a proxy for peaceful inaction.

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by policy makers and viewed as necessary to sustaining ceasefires and achieving a successful transition from conflict.’182

Because the normative aim of transitional justice expanded from that of facilitating a transition to democracy to the more ambitious aspiration of managing it, the shortcomings of trials on the one hand and truth commissions on the other in significantly impacting society became very obvious as prominent measures like the SATRC and ad hoc tribunals progressed, making each mechanism increasingly vulnerable to criticism from the other side. This enthusiasm took the form of an oft-partisan divide where a presumed dynamic of truth versus justice incorporated ‘necessary conflicts among justice, history and memory’183 or involved an almost burlesqued choice between restorative justice and retribution.184 In this manner, the early to late 1990s are treated as a period of competing idealisms over differing conceptions of what was best in transition.185 However, this widespread portrayal is somewhat undermined by the fluctuations in the debate – truth or justice were paramount at different times in different places, bearing a conspicuous relationship to what prevailing transitions made politically possible in terms of accountability. Even with the burgeoning acceptance of a role for international law, the presence of truth commissions in South America and the opening of files in Eastern Europe meant that truth was the dominant discourse by the end of Stage 1. For example, the Aspen Conference in 1988 viewed the moral obligation of governments to establish and acknowledge the truth about past violations as non-negotiable.186 Because trial remained a largely illusory prospect until the ad hoc tribunals were formed, a few years of very compromised truth commissions was not enough to delegitimise the value of truth in comparison to criminal justice. The consensus was encapsulated in the much-used catchphrase ‘all the truth and as much justice as possible.’187 As Mendez feared, there was at the time a popular (though by no means universal) ‘simplistic conception that “truth” is preferable to justice and that the reports of truth commissions are a desirable alternative to any sort of criminal prosecutions for human rights violations.’188 182. Bell, ‘Field’, supra note 16, at 9. 183. Teitel, ‘Genealogy’, supra note 20, at 81. 184. Hugo van der Merwe, ‘Delivering Justice During Transition: Research Challenges’ in van der Merwe, Baxter and Chapman (eds.), Assessing the Impact, supra note 23, 115-142 at 119. 185. Teitel, ‘Genealogy’, supra note 20, at 89. 186. Orentlicher, ‘“Settling Accounts” Revisited’, supra note 123, at 12. 187. Attributed to José Zalaquett, used for example by Cohen, ‘State Crimes of Previous Regimes’, supra note 171, at 43; Minow, Between Vengeance and Forgiveness, supra note 98, at 9; Orentlicher, ‘“Settling Accounts” Revisited’, supra note 123, at 12; and Gwen K Young, ‘All the Truth and as Much Justice as Possible’, 9 U.C. Davis Journal of International Law & Policy (2003) 209-229. 188. Juan Mendez, ‘In Defence of Transitional Justice’ in James A. McAdams (ed.), Transitional Justice and the Rule of Law in New Democracies (University of Notre Dame Press, 1997) 1-26 at 2.

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This was always the likely position where truth commissions, even compromised ones, were all that were on offer. However, with the articulation of the legal necessity and political desirability of trial, this consensus would become subject to challenge. In outlining the requirements in international law for criminal trial, Orentlicher placed the two in opposition, arguing that ‘whatever salutary effects it can produce, [a truth commission] is no substitute for ....prosecutions. Indeed, to the extent that such an undertaking purports to replace criminal punishment... it diminishes the authority of the legal process.’189 Once the prospect of justice became less chimerical with the establishment of the ICTY and ICTR, the orthodoxy shifted dramatically to relegate truth commissions to the status of consolation prize: ‘A strong consensus of scholars and activists supports the views that if justice is not possible due to force majeure or other considerations, the second best process is that of maximum discovery and dissemination of truth which gives authoritative testimony to crimes and violations of rights.’190

International trials were viewed as a ‘principled and effective’ response to mass political criminality, while truth commissions were “‘soft” second-best compromises’ and ‘minefields that can complicate and weaken the drive against impunity.’191 Significantly, Laplante argues that the truth v. justice question began to tip in favour of trials because the rights of victims were now factored into a balancing equation that once only reflected the interests of political elites.192 This view of where victims’ interests lay would fluctuate over the years, like many other positions. Soon, the balance began to shift once more as optimism over the performance of the ad hoc tribunals faded into disappointment at the same time as the South African TRC transcended the limitations of its founding. Greater attention was given to the ‘reconciliation’ element of TRCs – whereas once it was conceived as a code for impunity, advocates began to develop an independent, thicker understanding integrally linked to social and moral reconstruction.193 Restorative, reparative and historical views of justice were thought to lessen the need for criminal trial.194 Over time, truth commissions moved from second best to becoming ‘at least as important as criminal justice’ in the transitional justice

189. Orentlicher, ‘Settling Accounts’, supra note 87, at 2546, footnote 32. 190. Siegel, ‘A Decade of Debate and Experience,’ supra note 115, at 450. 191. Kritz, ‘Where We Are’, supra note 14, at 41. 192. Laplante, ‘Outlawing Amnesty’, supra note 156, at 918. 193. Roht-Arriaza, ‘New Landscape’, supra note 19, at 12. 194. Nigel Biggar, ‘Making Peace or Doing Justice: Must We Choose?’ in Nigel Biggar (ed.), Burying the Past: Making Peace and Doing Justice After Civil Conflict (Georgetown University Press, 2001) 6-22 at 11-13.

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movement.195 Having weathered the storm of criticism, TRCs became considered the ‘ubiquitously good,’196 inevitable counter-part to transition: ‘The policy decisions for truth commissions have become almost routine – standard practice, in effect. A country has a transition and everybody immediately says ‘We have to have a truth commission.’”197

The esteem of criminal trial rallied in the years surrounding the Millennium with milestones like the assertion of universal jurisdiction against Hissene Habre and Augusto Pinochet, the arrest of Slobodan Milosevic, the adoption of the Rome Statute of the ICC in 1998 and the creation of hybrid tribunals in Timor-Leste, Sierra Leone and Cambodia, yielding a renewed consensus that trial was legally required and strategically imperative in transitions from both authoritarianism or war.198 However, it was not accompanied by the triumphalism or antagonism previously evident. By the end of the 1990s, the truth versus justice debate had lost much of its piquancy and relevance – though strong preferences would continue to be expressed for one or the other, with the gradual acceptance that complementary approaches were best suited to transitional justice’s expanding goals, few were tempted to emphasise the merits of one by contrasting it with the demerits of the other.

4.2 Truth versus Justice or Politics versus Principle? Viewed thus, the decade after the Salzburg conference looks like a battle of ideas freed from, and transcending, the political checks that constrained the move from authoritarianism immediately following the Cold War’s thaw. This should not be surprising – the ad hoc tribunals (established in 1993 and 1994) and the SATRC (1995) that dominated discourse remain to this day the strongest form of either type of justice and greatly overshadowed more compromised mechanisms of earlier and later years. For example, in contrast to the later ICC, the ad hoc tribunals enjoyed enormous budgets,199 soldiers on the ground to effect arrest warrants, and formal authority from the Security Council to command cooperation or impose sanctions against recalcitrant governments under Chapter VII.200 195. Laplante, ‘Outlawing Amnesty’, supra note 156, at 928. 196. Mani, ‘Rebuilding an Inclusive Political Community’, supra note 44, at 524-515. 197. Kritz, ‘Policy Implications’, supra note 23, at 17. 198. Kritz, ‘Where We Are’, supra note 14, at 32, Huyse, All Things Must Pass, supra note 83, at 116, describing trials as ‘the gold standard.’ 199. The ICTY and ICTR at one time amounted to 15 per cent of the UN budget with costs between 1995–2003 of US$22.5 million and US$45.5 million per conviction respectively. 200. Tom Farer, ‘Restraining the Barbarians: Can International Criminal Law Help?’, 22 Human Rights Quarterly (2000) 90-117 at 107, pointing out that the ICC’s legal authority in most cases is limited to states that ratify the Rome Statute and no formal right of appeal to the Security Council in the event of non-performance by a State Party.

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They used these advantages to secure over a hundred convictions of the most senior criminals in each conflict, to develop international criminal jurisprudence and record a historical account of the conflicts.201 Similarly, Hayner argues that the SATRC was the most carefully thought-out and meticulously planned truth commission to emerge.202 Designed as a conscious improvement on all previous TRCs, most notably that of the previous standard-bearer in Chile,203 it was a statutory body, had subpoena powers, could hold public hearings (which no truth commission had hitherto done), had 17 commissioners and a staff of 400. 204 A budget of US$70m was funded by both domestic and international institutions and allowed its Human Rights Violation Committee to hear 2,440 victims, receive 21,000 statements and work over 1,888 days.205 What is notable is that both were formed as explicit rejections to the opposing paradigm of justice. For example, in South Africa both the national constitution and Desmond Tutu identified punishment with retribution, retaliation and vindictiveness, explicitly preferring instead a reconciliationist model which would alienate those who seek revenge, which was equated with trial.206 As Schabas and Thakur note, truth commissions were proposed to be in tension with criminal trials, ‘set up as rivals, a bit like the classic scenario of the “good cop/bad cop” interrogation.’207 Similarly, the ICTY’s senior officials deliberately blocked a cross-community Bosnian proposal for a truth commission, urging national

201. In 2004, the Yugoslav Tribunal published a list of five successes which it claimed it had accomplished: 1) ‘Spearheading the shift from impunity to accountability,’ pointing out that, until very recently, it was the only court judging crimes committed as part of the Yugoslav conflict, since prosecutors in the former Yugoslavia were, as a rule, reluctant to prosecute such crimes; 2) ‘Establishing the facts’, highlighting the extensive evidence-gathering and lengthy findings of fact that Tribunal judgments produced; 3) ‘Bringing justice to thousands of victims and giving them a voice’, pointing out the large number of witnesses that had been brought before the Tribunal; 4) ‘The accomplishments in international law’, describing the fleshing out of several international criminal law concepts which had not been ruled on since the Nuremberg Trials; 5) ‘Strengthening the rule of law’, referring to the Tribunal’s role in promoting the use of international standards in war crimes prosecutions by former Yugoslav republics. 202. Priscilla Hayner, Unspeakable Truths: Confronting State Terror and Atrocity (1st edition, Routledge: New York, 2001) at 41. 203. Heine, ‘All the Truth’, supra note 114, at 75. 204. Ibid., at 75-76. 205. Huyse, All Things Must Pass, supra note 83, at 150-151. 206. Richard Goldstone, ‘Exposing Human Rights Abuses – A Help or Hindrance to Reconciliation?’, 22 Hastings Constitutional Law Quarterly (1994-95) 607-622 at 614 and Desmond M. Tutu, No Future Without Forgiveness (Doubleday: New York , 1999); Mendez, ‘In Defence of Transitional Justice’, supra note 188, at 15. 207. Schabas and Thakur, ‘Concluding Remarks’, supra note 152, at 282.

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governments and international organisations to thwart it and refused to meet local figures proposing it. ‘Furthermore, the Tribunal not only failed to create an environment conducive to the growth of other mechanisms of justice, but affirmatively sought to prevent the formation of a Bosnian Truth Commission. Despite the fact that all three parties to the Bosnian conflict agreed on the need to create a truth commission, the Tribunal publicly objected on the grounds that it might limit the ability of the Tribunal to effectively prosecute suspected war criminals.... While a technically correct view, this opinion evidenced the interest of the tribunal in preserving its own prerogatives and its neglect of the need for the wide use of justice and a cathartic process of the victims.’208

However, a closer look at the record of the mechanisms and scholarship at the time demonstrates a reality more complex than the clash of ideas the era is portrayed as. Strong though they were, the SATRC and the ad hoc tribunals were shaped more by politics than principle. Though there was an observable process of normative change, support from national and international civil society, and greater institutionalisation, the ‘close relationship between the type of justice pursued and the relevant limiting political conditions’ was no less apparent in the mid-1990s than it was at the turn of the decade.209 In some cases, the political conditions became less constricting, thus liberating the justice response. Whereas until now the compacted shift from authoritarianism to democracy defined transitional justice, as the 1990s progressed, the predominant political paradigm became a ruptured transition from conflict to peace, most notably in the wars in the Balkans and Great Lakes region.210 Indeed, an unsuccessful attempt was made at the time to replace ‘transitional justice’ with the concept of ‘post-conflict justice’ to reflect the predominant source of mass violence.211 In this context, the hitherto prevalent tendency to extrapolate from the experiences of South America appeared ‘conceptually simplistic’ to policy makers in the mid-1990s.212 Arthur, for example, suggests that the dilemmas faced in negotiated transitions were different to those occurring at the end of war: ‘The practical dilemmas actors face in peace-building can be quite different from those involved in the instauration of democratic citizenship and the transformation 208. Paul R. Williams and Patricia Taft, ‘The Role of Justice in the Former Yugoslavia: Antidote or Placebo for Coercive Appeasement?’, 35 (2) Case Western Reserve Journal of International Law (2003) 219-255 at 254. See also Kritz, ‘Where We Are’, supra note 14, at 41. 209. Teitel, ‘Genealogy’, supra note 20, at 69. 210. Leebaw, ‘Irreconcilable Goals’, supra note 86, at 103, Arthur, ‘How “Transitions” Reshaped Human Rights’, supra note 2, at 360. 211. Mahmoud Cherif Bassiouni (ed.), Post-Conflict Justice (Transnational Publishers: Ardsley, New York, 2002). 212. Kader Asmal, ‘Truth, Reconciliation, and Justice: The South African Experience in Perspective’, 63 Modern Law Review (2000) 1-24 at 23.

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of an abusive state security apparatus. Justice claims in such contexts are much more likely to revolve around reintegration of ex-combatants, ethnic cleansing, war crimes, internal displacement, property restitution, power sharing, wealth sharing, and claims for self-determination.’213

However, the differences should not be exaggerated. Dilemmas in ruptured transitions were not radically different to the dilemmas faced in the earlier negotiated authoritarian transitions. As Ní Aoláin and Campbell put it, the paradigmatic transition from both authoritarianism and violent conflict ‘sees itself as a process of closure... There is typically a “deal” followed by a period of constitutional and institutional change, at which point transition ends.’214 Both types of transition need to re-integrate political antagonists, secure a monopoly on the use of force and to share power. Crimes of war are different qualitatively and quantitatively to those of repressive authoritarianism, but both cross the threshold of serious human rights violations, especially crimes against humanity.215 Transition tends to be uniform throughout the state, a natural by-product of the uniformity of prior authoritarian rule or the national basis of peace agreements, and rarely attracts widespread resistance once necessary change in the political order begins.216 Many transitions will of course contain elements of the two paradigms. Most peace agreements will provide for renewed or modified democratic measures, while most transitions from authoritarianism to democracy will attempt to place controls on military or non-military actors who could threaten violent conflict. The significant difference between authoritarian transitions and war transitions was not therefore in terms of dilemmas, but rather in terms of opportunities. The wars in the Balkans and Great Lakes (as well as later transitions in Sierra Leone and East Timor) confirmed Huntingdon’s observation that the most accountability in transition comes with the domestic overthrow of rulers by the opposition or where external militaries forcibly bring about change of regime, because former power-brokers have no ‘wrecking’ ability and are less able to endanger the nascent peace.217 Indeed, between 1970 and 2007, trials occurred twice as often between regime defeat or collapse as after negotiated transitions, and brought a higher prevalence of all types of mechanism.218 While Lutz is correct to note 213. Arthur, ‘How “Transitions” Reshaped Human Rights’, supra note 2, at 360. 214. Ní Aoláin and Colm Campbell, ‘The Paradox of Transition’, supra note 113, at 182. 215. International human rights law constituting the language in which accountability demands were phrased in Stage I and international humanitarian law the language of transitions from war. 216. Ní Aoláin and Colm Campbell, ‘The Paradox of Transition’, supra note 113, at 180 and at 182. 217. Huntingdon, The Third Wave, supra note 104, at 124-141. Sriram even omits such cases from her study of transitions where the peace versus justice dilemma played out because the dilemma never arises (Sriram, Confronting Past Human Rights Violations, supra note 18, at 38). 218. Olsen, Payne and Reiter, Transitional Justice in Balance, supra note 3, at 54-55 and 117. A 2005 study of 98 trials in a transitional justice dataset found that 68 of them took place following a victory for one side over another (Helga Malmin Binningsbø, Jon Elster and Scott Gates,

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that in transitions from authoritarianism a judicial system usually exists that could be activated to try cases which is rarely the case after the total destruction of war, the end of war nevertheless tended to generate more trials than a negotiated regime change.219 Paradoxically, the weakness in this regard compelled the participation of the international community, which availed of the opportunity to promote trial over truth commissions, illustrating Elster’s contention that where the transition to liberal rule is exogenously introduced by a foreign power, justice is usually more trial-based and rigorous.220 By contrast, where endogenous autocratic regimes underwent endogenous transitional justice the tendency towards amnesty is consistently apparent.221 South Africa as the most pertinent example will be examined later, but Central America testifies to the endurance of the limits of realism in the new normative milieu. For example, in 1993 the El Salvador government passed an amnesty law preventing criminal investigations or trials five days after its truth commission published its report.222 Neither the naming of perpetrators nor the individualisation of responsibility were permitted in the 1999 Guatemalan Historical Clarification Commission report.223 Here and in South Africa, scholars, practitioners and advocates took these compromised beginnings and made the mechanisms as effective as possible, often transcending limitations but more frequently making a virtue of necessity. Notwithstanding the greater theoretical and practical sophistication of truth commissions at this time, it remained unclear to observers and the survivor communities whether reconciliation processes were causally central to establishing peace or were merely ‘window-dressing’ to make political compromise palatable to the nation.224

4.3 Justice without Limits? The Ad Hoc Tribunals and the ICC Though politico-military balances allowed for the creation of the ad hoc tribunals, it may still be argued that the accelerated process of norm change in the early 1990s was decisive in ensuring (a) that justice was preferred over inaction, and (b) that criminal justice was preferred over other types. There can be little doubt that transitional justice advocates have played a significant role in the rapid development of international criminal institutions. As Snyder and Vijamuri observe: ‘Civil War and Transitional Justice, 1946-2003: A Dataset’, paper presented at the ‘Transitional Justice and Civil War Settlements’ workshop in Bogotá, Colombia, 18-19 October 2005). 219. Lutz, ‘Lessons Learned’, supra note 40, at 326. 220. Elster, Closing the Books, supra note 27, at 49. 221. Ibid., at 74. 222. Margaret Popkin, Peace Without Justice: Obstacles to Building the Rule of Law in El Salvador (Pennsylvania State University Press, 2000) at 140-158. 223. Joanna Quinn and Mark Freeman, ‘Lessons Learned: Practical Lessons Gleaned from Inside the Truth Commissions of Guatemala and South Africa’, 25 Human Rights Quarterly (2003) 1117-1149 at 1122. 224. Vinjamuri and Snyder, ‘Advocacy and Scholarship’, supra note 68, at 348.

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‘Legalists who stress these justifications for war crimes tribunals have permeated human rights-based nongovernmental organizations (NGOs), international organizations, and universities. More than any other professional class, lawyers have moved freely among these institutions and taken leadership roles in the international tribunals whose creation they have advanced.’225

Roht-Arriaza, for example, argues that once NGOs and human rights organisations began to shift their attention from documenting violations under war or repression to ending impunity for them in transition, the ‘first result’ was the establishment of the ad hoc tribunals,226 while Ignatieff argues that the ‘advocacy revolution has broken the state’s monopoly on the conduct of international affairs.’227 Certainly, the renewal of state barbarism in conflicts frozen in the Cold War end prompted vociferous demands by NGOs and activists for prosecution and punishment.228 NGOs have been the strongest enthusiasts for international tribunals, most notably the 800 NGOs present in the Coalition for an International Criminal Court at the Rome Conference.229 The view of activists and advocates as idealist instigators of international criminal justice has found wide support.230 Consequently, the creation of the tribunals is deemed to have ‘ushered in a new era in international law as well as international relations,’ stimulating the creation of the ICC and moving the demand for accountability ‘from a moral exhortation to a legal obligation.’231 Viewed thus, the 1990s appear to manifest a cascading, progressive realisation of the claims of advocates growing from tentative calls for a Yugoslav Nuremberg in 1991 to a permanent tribunal only seven years later.232 However, what these assertions elide is the limited extent to which the process of normative change appeared to impact on the decision to establish the first tribunal in Yugoslavia (which effectively made the later ICTR

225. Ibid., at 358. 226. Roht-Arriaza, ‘The Role of International Actors’, supra note 85, at 56. 227. Michael Ignatieff, Human Rights as Politics and Idolatry (Princeton University Press, 2001) at 8. 228. Aryeh Neier, ‘Accountability for State Crimes: The Past Twenty Years and the Next Twenty Years’, 35 Case Western Reserve Journal of International Law (2003) 351-362 at 359. 229. The obvious example being the Coalition for International Criminal Tribunals, though Amnesty International, Human Rights Watch and scores of region- and context-specific organisations have been highly prominent. 230. See also Ann Marie Clark, Diplomacy of Conscience: Amnesty International and Changing Human Rights Norms (Princeton University Press, 2001); Mariacarmen Colitti, ‘The Experience of No Peace Without Justice’ in Tullio Treves (ed.), Civil Society, International Courts and Compliance Bodies (T.M.C. Asser Press: The Hague, 2005) 107-113; M. Cherif Bassiouni, ‘Justice and Peace: The Importance of Choosing Accountability Over Realpolitik’, 35 Case Western Reserve Journal of International Law (2003) 191-204 at 198. 231. Laurel E. Fletcher, Harvey M. Weinstein and Jamie Rowen, ‘Context, Timing and the Dynamics of Transitional Justice: A Historical Perspective’, 31 Human Rights Quarterly (2009) 163-220 at 166. 232. Sikkink, Justice Cascade, supra note 79, at 111-121.

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a fait accompli).233 The historical record of the tribunals shows advocacy and civil society being more effective after the decision to establish the ICTY than before it, working creatively within political constraints more so than transcending or changing them. The ‘contagion of accountability’ in the 1990s owes as much to a permissive realpolitik as to the triumph of ideas.234 Though there was a debate over peace versus justice in Yugoslavia while peace negotiations were ongoing (perhaps the last occasion when the arguments were aired),235 the extent to which principled arguments by advocates against impunity can be said to be a motivating factor has been doubted considering the need of the international community ‘to take some action to address its reluctance to intervene militarily to stop the war’. 236 Bass argues: ‘[T]he establishment of the Hague Tribunal was an act of tokenism by the world community, which was largely unwilling to intervene in ex-Yugoslavia but did not mind creating an institution that would give the appearance of moral concern.’237

Though retrospectively portrayed as the fruit of civil society agitation and the mobilisation of the human rights community, the ad hoc tribunals were viewed at the time of formation as a ‘post facto substitute for effective military intervention by the UN Security Council,’238 ‘an alternative to taking more robust measures’,239 ‘symbolic’ efforts to compensate for the willingness to take action,240 a ‘fig-leaf ’241 and ‘a public relations device.’242 This commentary is usually glossed over in descriptions of transitional justice’s normative impact. Certainly, media images

233. The Rwandan Government argued that if a tribunal were established for the former Yugoslavia but not for the recent genocide in their country, it would demonstrate racism. 234. Payam Akhavan, ‘Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?’, 95 American Journal of International Law (2001) 7-31 at 9. 235. See Anonymous, ‘Human Rights in Peace Negotiations’, 18 Human Rights Quarterly (1996) 249-258 arguing against the intrusion of justice claims into negotiations and Akhavan, ‘Justice in The Hague’, supra note 172, contending the opposite. 236. Fletcher and Weinstein, ‘Violence and Social Repair’, supra note 9, at 584. See also David P. Forsythe, ‘International Criminal Courts: A Political View’, 15 Netherlands Quarterly of Human Rights (1997) 5-19; and Jeremy Rabkin, ‘No Substitute for Sovereignty: Why International Criminal Justice has a Bleak Future – and Deserves It’ in Schabas, Hughes and Thakur (eds.), Atrocities and International Accountability, supra note 114, 98-132 at 108. 237. Bass, Stay the Hand of Vengeance, supra note 29, at 584. 238. Yves Beigbeder, Judging War Criminals: The Politics of International Justice (St Martin’s Press: New York, 2000) at 171. 239. Neier, ‘Accountability for State Crimes’, supra note 228, at 355. 240. Minow, Between Vengeance and Forgiveness, supra note 98, at 37. 241. Robert Sloan, ‘The Expressive Capacity of International Punishment: The Limits of the National Law Analogy and the Potential of International Criminal Law’, 43 Stanford Journal of International Law (2007) 39-94 at 46. 242. Howard Ball, Prosecuting War Crimes and Genocide: The Twentieth Century Experience (University Press of Kansas, 1999) at 141, quoting Richard Holbrooke.

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(the so-called ‘CNN phenomenon’) mobilised action and civil society243 but the suspicion remains that lip service lay behind much of the human rights rhetoric of the major powers.244 Mégret, for example, positions the ad hoc tribunals as French and American insurance against the risk of complicity by posterity.245 The lack of impact of trial advocates is best illustrated by the fact that in the earliest days of the ICTY (when presumably human rights appeals had their greatest currency), no Chief Prosecutor was designated for 14 months246 while international actors evinced great reluctance to assume responsibility for arrest and apprehension of suspects.247 Though these shortcomings can be ascribed to growing pains,248 the more sober argument might be that initially the ICTY was not established to function.249 Only after NATO stepped up its military effectiveness in 1995 with a political determination to use justice as a means of sideling recalcitrant figures like Karadzic and Mladic250 did the ‘shameful apathy’ of the early years begin to subside, and then only slowly.251 It was within this context of realist re-evaluation that the ICTY became effective, and only then did the tribunal rise above its initial political instrumentalisation.252 For example, the President of the ICTY Antonio Cassese (practitioner and scholar-activist personified) describes how even though ‘those who set up the tribunal never intended or expected anything to happen,’ the judges and a dedicated staff produced a functioning court that grew from strength to strength with a strong claim to constitute the most effective criminal tribunal since Nuremberg.253 Even then, the funding that made the Tribunal a success tended to follow the interests of realpolitik.254 Arguments on the efficacy of idealism are on steadier ground after the ad hoc tribunals. There can be little doubt that the ICC was the product of the ad hoc tribunals’ momentum which demonstrated the need for permanent, routinised

243. Ball, ibid., at 168. Pierre Hazan, La Justice Face a la Guerre: de Nuremberg a la Hague (Stock: Paris, 2000) at 76. 244. Snyder and Vinjamuri, ‘Trials and Errors’, supra note 82, at 42. 245. Mégret, ‘Politics of International Criminal Justice’, supra note 38, at 1273. 246. Neier, ‘Accountability for State Crimes, supra note 228, at 356. 247. Rudi Teitel, ‘Bringing the Messiah Through the Law’ in Robert Post and Carla Hesse (eds.), Human Rights in Political Transitions: Gettysburg to Bosnia (Zone Books: New York, 1999) 177-193 at 180. 248. Huyse, All Things Must Pass, supra note 83, at 88. 249. Florence Hartmann, Paix et Châtiment:Les Guerres Secretes de la Politique et de la Justice Internationales (Flammarion: Paris, 2007) at 24. 250. Akhavan, ‘Beyond Impunity’, supra note 234. 251. Richard Goldstone, ‘War Crimes: A Question of Will’, The World Today (April 1997) at 106. 252. Cedric Ryngaert, ‘Introduction’ in Cedric Ryngaert (ed.), The Effectiveness of International Criminal Justice (Interstentia: Cambridge, 2008) vii-xvii at x. 253. From interview cited in Minow, Between Vengeance and Forgiveness, supra note 98, at 123. 254. Mégret, ‘Politics of International Criminal Justice’, supra note 38, at 1276.

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justice,255 ‘the jewel in the crown of the entire evolutionary process.’256 The tribunals elevated the principles of international humanitarian law ‘from the rhetorical to the normative, and from the merely normative to the effectively criminalized.’257 However, its admissibility impediments and the fact that the most powerful countries in the world (US, China, India, Russia, Pakistan, the Arab World) belie this optimism. Furthermore, the impotence of the ICC in the face of Syrian, Sudanese and Burmese recalcitrance in recent years makes a mockery of the earlier legalist belief that establishment of tribunals (or indictment by them) could socialise states into less abusive patterns of behaviour258 or the belief that the global order might be rooted in justice rather than greed, politico-military power or anarchy.259 Though the rigorous insistence in negotiations over Article 53 that the ICC prosecutor can only refuse to proceed with an investigation in the interests of justice (as opposed to peace) was sign of a formidable commitment to accountability, Article 16’s provisions that no investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council has requested the Court to that effect signals that idealism has not won out entirely at the expense of realist concerns.260 If the ICC is emblematic of a resolve to ensure those most responsible for mass atrocity do not escape punishment, it is a resolve highly trammelled by the type of political concerns that prevailed during the Cold War, albeit qualified by a better vocabulary and apparatus of opposition. A recent qualitative study of transitional justice has found that trials remain the exception rather than the norm as a transitional justice response.261 Trial remains primarily dependent not on the effectiveness of civil society advocacy, but on the availability of a conducive military-political balance. Outside of the internationalised tribunal context, since 1990 the most extensive domestic transitional prosecutions have taken place in the likes of Rwanda, Ethiopia, the DR Congo and Iraq, where it is difficult to establish the extent, if any, to which principled human rights-based arguments impacted the national decision to punish.262 The widespread deviation from due process and human rights standards in these 255. Michael P. Scharf, ‘Responding to Rwanda: Accountability Mechanisms in the Aftermath of Genocide’, 52 (2) Journal of International Affairs (1999) 621-638 at 621. 256. Huyse, All Things Must Pass, supra note 83, at 18. 257. Theodor Meron, War Crimes Law Comes of Age: Essays (Oxford University Press, 1998) at 304. 258. Cherif Bassiouni, ‘The Universal Model: The International Criminal Court’ in Bassiouni (ed.), Post-Conflict Justice, supra note 211, 813-825 at 820-821. 259. Akhavan, ‘Beyond Impunity’, supra note 234, at 95. 260. Thomas Hethe Clark, ‘Prosecutor of the International Criminal Court, Amnesties, and the “Interests of Justice”: Striking a Delicate Balance’, 4 Washington University Global Studies Law Review (2005) 389-414. 261. Fletcher, Weinstein and Rowen, ‘Context, Timing and Dynamics’, supra note 231, at 215. 262. Eirin Mobekk, Transitional Justice and Security Sector Reform: Enabling Sustainable Peace (Geneva Centre for the Democratic Control of Armed Forces, 2006) at 14.

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accountability processes must call into question whether human rights activists exerted any influence over the decision to pursue transitional accountability.

4.4 South Africa: Reconceptualising Realism as Reconciliation Because of the place of apartheid in the international political imagination and the participation of high-profile commissioners such as Archbishop Tutu, the iconic SATRC ‘captured public attention throughout the world’ and provided the model for succeeding truth commissions.263 In more than a decade and a half since the SATRC’s formation, truth commissions have become ‘the darling’264 of a transitional justice movement ‘blindly besotted’ with them.265 It has become commonplace to view TRCs as the equal or superior of criminal prosecutions, serving more diverse purposes and exploring the places retributive justice cannot reach. Indeed, some argue TRCs are synonymous with transitional justice.266 The valorisation of the SATRC was the crucial turning point in the history of TRCs, paving the way for later processes at a point when developments in international criminal law may have made them redundant.267 Indeed, some date the popularisation of transitional justice from the collapse of apartheid.268 Until this point, it was common for those who preferred criminal justice to argue, with reference to compromised South American processes, that the language of truth and reconciliation effectively operated as a code for impunity. Chilean President Aylwin could diplomatically concede that the national truth commission was a ‘second-best option’ to avoid destabilisation by the outgoing military leadership,269 while the academic response was typically to consider them ‘a sop aimed at masking moral defeat.’270 Since the SATRC enshrined truth and reconciliation commissions as an inevitable policy option, such criticism has been noticeably in abeyance. 271 Similarly, until the SATRC, the truth element of TRCs was paramount and 263. Audrey R Chapman and Hugo Van der Merwe, ‘Introduction: Assessing the South African Transitional Justice Model’ in Audrey R Chapman and Hugo van der Merwe (eds.), Truth and Reconciliation in South Africa: Did the TRC Deliver? (University of Pennsylvania Press, 2008) 1-23 at 8. 264. John Torpey, ‘Introduction: Politics and the Past’ in Torpey (ed.), Politics and the Past, supra note 30, 1-35 at 9. 265. Brody, ‘Justice: The First Casualty of Truth’, supra note 176, at 4. 266. Lisa J Laplante and Kimberley Theidon, ‘Truth with Consequences: Justice and Reparations in Post-Truth Commission Peru’, 29 Human Rights Quarterly (2007) 228-250 at 235. 267. Fletcher, Weinstein and Rowen, ‘Context, Timing and Dynamics’, supra note 231, at 167. 268. Jens David Ohlin, ‘On the Very Idea of Transitional Justice’, 8 Whitehead Journal of Diplomacy and International Relations (2007) 51-68 at 51. 269. Jorge Correa Sutil, “‘No Victorious Army Has Ever Been Prosecuted”.... The Unsettled Story of Transitional Justice in Chile’ in McAdams (ed.), Transitional Justice and the Rule of Law, supra note 188, 123-154 at 131-133. 270. Susan Dwyer, ‘Reconciliation for Realists’, 13 Ethics & International Affairs (1999) 81-98 at 89. 271. Hayner, Unspeakable Truths, supra note 202, at 23.

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the inquisitorial paradigm was dominant.272 The greater success of the SATRC in comparison to its predecessors is widely believed to have changed the terms of the debate – whereas once truth was considered a poor substitute for justice and reconciliation understood as shabby compromise, they were thereafter understood as encompassing the goals of community and consensus.273 However, far from marking a deliberate response to the weaknesses of past transitions or consciously ‘cho[osing] a middle course between the extremes of blanket amnesty and Nuremberg-style tribunals,’ the shape of the SATRC was dictated by many of the same restraining factors were present in the compromised South American and East European transitions.274 To the extent that the SATRC could surpass the achievements of earlier commissions, it was significantly due to the fact that the liberation movement was much stronger politically than opposition movements in Eastern Europe and South America, even if this was not enough to dictate terms to the de Klerk government.275 The Commission’s form and substance were rooted less in restorative justice than the political realities at play at the time. The SATRC certainly changed the debate about truth commissions in the decade afterwards, but more through post-hoc rationalisations of the compromises therein, as opposed to a conscious move towards the primacy of restorative justice. Much like the fact that the SATRC is more popular abroad than at home, domestic disillusion differs greatly from its international adulation. 276 Justice policy in South Africa, no less than preceding African and South American transitions of the previous 20 years, rested largely on the ‘relative strength’ of the public and ANC’s demand for justice against the leadership’s demand for impunity.277 Though Snyder and Vinjamuri argue that truth commissions are chosen on the basis of a ‘logic of emotions’ which capture the implicit assumption that governments deliberately choose state-wide psychosocial catharsis over punishment, a ‘logic of consequences’ where choice was shaped by pragmatic bargaining was in fact more evident.278 In the years of negotiations over transition in South Africa, the ANC negotiators were fully conscious (a) that levels of violence instigated by the government surged dramatically between 1990 and 1994, and (b) that the government remained fully in control of the army.279 For all the SATRC’s success in avoiding blanket amnesty and introducing creative innovation (ensuring a voice for victims, 272. Paul Van Zyl and Mark Freeman, ‘Conference Report’ in Henkin (ed.), The Legacy of Abuse, supra note 14, 3-20 at 4-5. 273. Leebaw, ‘Irreconcilable Goals’, supra note 86, at 106. 274. Heine, ‘All the Truth’, supra note 114, at 78. 275. Wilson, ‘Justice and Legitimacy’, supra note 90, at 216. 276. Brahm, ‘Civil Society’, supra note 77, at 3-4. 277. Elin Skaar, ‘Truth Commissions, Trials, or Nothing? Policy Options in Democratic Transitions’, 20 Third World Quarterly (1999) 1109-1128 at 1124. 278. Snyder and Vinjamuri, ‘Trials and Errors’, supra note 82, at 7. 279. Wilson, ‘Justice and Legitimacy’, supra note 90, at 195-200.

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provision of rehabilitation and reparation etc), the need to prevent alienation of right wingers280 was the paramount consideration ever since the 1990 Groote Schuur memorandum where the expression ‘reconciliation demands forgiveness’ was given its first iteration.281 The apartheid regime had not collapsed and would not permit elections without amnesty.282 This is something those involved in the TRC fully accepted at the time but which has been skirted over in the subsequent literature.283 Nelson Mandela, for example suggested that if he were to announce criminal trials the vast majority of the population preferred, he could wake up the next morning to find his house ringed by tanks.284 On such a basis, Wilson’s argument that accountability in South Africa took the form of indemnity ‘glossed’ as restorative justice becomes irrefutable.285 ‘Participants in the TRC process and ANC leaders acknowledge candidly that the Commission embodied not the “morally ideal but the politically possible” – that the TRC was a political compromise and the best way of achieving some measure of justice in a highly constrained political negotiation.’286

Though falling short of what the ANC and international human right community would have desired, the SATRC should not be written off at the time as a mere political compromise (indeed, there is a strong argument that the morally ideal is in fact the politically possible) given the very obvious contemporary need for an authoritative historical record and the sheer symbolism of accountability, albeit partial.287 However, at the time of its foundation, Mendez was far from alone in contending that ‘[t]he most extreme form of tokenism, however, results when a truth commission is proposed as an alternative to criminal prosecutions and not as a step in the direction of accountability.’288 It was only over time that this became very much the minority position, and posterity has been much kinder to truth commissions. The success of the SATRC lies not in the novelty of its approach or its record of restoration and repair (famously, a Nielsen-Market Research Africa survey concluded that two-thirds of South Africans questioned believed the Commission led to a deterioration of race relations),289 but rather in 280. Asmal, ‘Truth, Reconciliation, and Justice’, supra note 212, at 11. 281. Huyse, All Things Must Pass, supra note 83, at 144. 282. Lorna McGregor, ‘Individual Accountability in South Africa: Cultural Optimum or Political Facade?’, 95 American Journal of International Law (2001) 32-45 at 33-34. 283. Asmal, ‘Truth, Reconciliation, and Justice’, supra note 212, at 11; Alex Boraine, A Country Unmasked (Oxford University Press, 2001) at 285. 284. Yasmin Louise Sooka ‘The Politics of Transitional Justice’ in Sriram and Pillay (eds.), Peace Versus Justice, supra note 93, 21-43 at 30. 285. Wilson, ‘Justice and Legitimacy’, supra note 90, at 216. 286. Rama Mani, Beyond Retribution – Seeking Justice in the Shadows of War (Polity Press: Cambridge, 2002) at 108. 287. The author thanks Dr. Giuseppe Caruso for raising this point. 288. Mendez, ‘In Defence of Transitional Justice’, supra note 188, at 15. 289. David A. Crocker, ‘Punishment, Reconciliation and Democratic Deliberation’, 5 Buffalo

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the product of its search in the literature and at conferences for a compensating, explanatory account of what happened.290 Roht-Arriaza argues that the (enforced) emphasis on truth required a retrospective explanatory theory to explain why it was so important,291 while Gray contends that ‘to minimize what is lost in this trade-off, advocates for commissions have developed jurisprudential theories designed to satisfy calls for justice in transitions.’292 Whereas the Chilean TRC figures argued their commission pursued what was possible over what was desirable or righteous,293 the SATRC, like their Argentine predecessors, consciously developed post hoc theoretical justifications for the compromises made. The SATRC’s advocates and practitioners made two overarching arguments. The first was that justice and reconciliation should be viewed as mutually reinforcing rather than contradictory, a form of ‘restorative justice’ that would reconstitute society’s lost balance in a manner beyond the capabilities of the more rigid criminal justice process.294 Whereas once criminal accountability was deemed a prerequisite for a regime that would protect human rights, actors like Mandela and Tutu semi-consciously reversed the presumed relationship between human rights and reconciliation, with the latter now forming the essential basis for the former.295 While until now, truth commissions were justified almost apologetically, the second argument was based on a bold expansion of what justice is – it was to be thought of not in terms of retribution for wrongdoers, but rather in terms of potentially limitless possibilities for healing and vindication for victims.296 Legal claims to justice would give way to restorative, reparative and historical forms of justice which could lessen the urgency of criminal justice and ultimately prove even better.297 A bespoke jurisprudence outside law began to develop for the first time, drawing on normative discourse from the fields of ethics, medicine and Criminal Law Review (2001-02) 509-549 at 542. 290. A prime example is the seminal Institute for Democracy in South Africa-sponsored conference on South Africa in 1994. See Arthur, ‘How “Transitions” Reshaped Human Rights’, supra note 2, at 355. 291. Roht-Arriaza, ‘New Landscape’, supra note 19, at 3. 292. David Gray, ‘An Excuse-Centred Approach to Transitional Justice’, 74 Fordham Law Review (2005-06) 2621-2693 at 2688. 293. Charles T. Call, ‘Is Transitional Justice Really Just?’, 11 Brown Journal of World Affairs (200405) 101-113 at 103. 294. Charles Villa Vicencio, ‘A Different Kind of Justice: The South African Truth and Reconciliation Commission’, 1 Contemporary Justice Review (1998) 407-428. 295. Leebaw, ‘Irreconcilable Goals’, supra note 86, at 105. Of course there was nothing new in finding compensatory justifications for truth processes. The reluctant choice of truth over justice in South America and Eastern Europe could be justified by reference to the nature of the regimes there – deniable, covert disappearances by death squads requiring public testimony on one hand, bureaucratic surveillance requiring the opening of files on the other. 296. Biggar, ‘Making Peace or Doing Justice’, supra note 194, at 16-17. 297. Kent Greenawalt, ‘Amnesty’s Justice’ in Rotberg and Thompson (eds.), Truth v. Justice, supra note 31, 189-210 at 198.

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theology.298 Arguments rejecting the morality and legality of TRCs became far less acceptable and less common due to the almost-hegemonic language of reconciliation.299 There are of course a number of strong reasons why TRCs should be chosen which will be readily familiar to those accustomed to the literature – the ability to focus on patterns of crime over individual atrocities in trial, the focus on victims over perpetrators, the potential to issue wide-ranging recommendations to all sectors of society, the psychological research suggesting truth and closure were goods in themselves, the greater nuance they offer over black and white trial processes, especially in relation to the culpability of bystanders who always outnumber wrongdoers. It is here, perhaps, that the first shoots of the later acceptance of multiple, mutually-beneficial paths to justice and restoration are apparent, though still couched somewhat defensively against those still urging the hegemony of trial. As theory gave way to the difficult choices inherent in actual practice, it was becoming apparent that transitional justice could incorporate both truth and justice, both morality and politics. However, because at the time advocates were conscious of the widespread preference for criminal trial, theorists like Gutmann and Thompson explicitly asked whether society could legitimately ‘sacrifice the pursuit of justice as usually understood for the sake of promoting other purposes such as reconciliation.’ 300 They strove to present minimal demands by which TRC’s could be understood as justice, such as an appeal to a moral principle comparable to the moral principle of punishment, inclusivity of victims and abusers, and employment of morally rich practices that reflect their principled goals and provide models for democratic and rule of law procedures. TRCs since the SATRC have been strikingly ambitious and sophisticated, lightly caricatured by Theidon as manifesting ‘the tyranny of total recall’ wherein ‘more memory= more truth=more justice= reconciliation.’301 For example, the Guatemalan Truth Commission roamed far beyond its initial mandate of historical clarification to encompass recommendations on fiscal reform, traditional justice and employment in state agencies to achieve ‘true reconciliation and construct a new democratic and participatory nation.’302 However, as noted earlier, neither the naming of perpetrators nor the individualisation of responsibility were permitted in its report. Elsewhere, one can observe the almost universal lack of implementation of truth commission reports in the likes of Peru, East Timor and Sierra Leone303 and the rarity of prosecutions following a truth commission’s 298. Teitel, ‘Genealogy’, supra note 20, at 81-82. 299. Richard A. Wilson, The Politics of Truth and Reconciliation in South Africa: Legitimizing the Post-Apartheid State (Cambridge University Press, 2001) at 171. 300. Amy Gutman and Dennis Thompson, ‘Moral Foundations of Truth Commissions’ in Rotberg and Thompson (eds.), Truth v. Justice, supra note 31, 22-44 at 22-27. 301. Theidon, ‘Editorial Note’, supra note 72, at 1. 302. Kritz, ‘Where We Are’, supra note 14, at 40. 303. Rolando Ames Cobián and Felix Reátegui, ‘Toward Systemic Social Transformation: Truth

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disclosure of perpetrators.304 What explains this juxtaposition of ambition and constraint? Understanding the more ambitious theories of TRC potential enunciated since the SATRC as essentially defensive or compensatory may explain why there is such a gap between theory and practice wherever TRCs are created. As Mobekk argues in explaining the weak mandate of many such bodies, ‘[o]ften it is not desire to uncover the truth about past abuses that drives the decision for the establishment of a truth commission by new governments, but that it is the least politically disruptive justice process.’305 In studying 68 TRCs established between 1970 and 2007, Olsen, Payne and Reiter found that negotiated transitions (i.e., those where the outgoing regime retain the most influence) were the most strongly associated with truth commissions.306 They also found that truth commissions have a statistically negative effect on future human rights protections.307 It is submitted that this reflects the weakness of the transition and not that of the TRCs themselves, which over time have developed commendably robust standards of best practice and a transnational network of experienced participants. What it does suggest is that TRCs remain more constrained by political reality than the quasi-euphoric advocacy suggests. As Cobián and Reátegui note in the aftermath of their experiences in Peru’s 2001-2003 TRC: ‘[T]ruth commissions often exist in a sort of tension between, on the one hand, their objectives and results and, on the other hand a reality external to them over which they exercise no direct control.’308

While the potential of TRCs have become better articulated since South Africa and practice has improved immeasurably, gains in these regards still strain, often forlornly, against limiting political conditions.

5. Stage III: Beyond Truth Versus Justice: From ‘Either/Or’ to ‘Both And.....’ The dramatic and foreshortened expansion in Stage II in size, scope and ambition of criminal trials and truth commissions nevertheless left significant lacunae – for Commissions and Development’ in Pablo de Greiff and Roger Duthie (eds.), Transitional Justice and Development: Making Connections (Social Science Research Council: New York, 2009) 142-169 at 153. 304. ‘In only a few of the fifteen cases looked at ... was there an amnesty law passed explicitly preventing trials, but in most other cases there was in fact a de facto amnesty – prosecutions were never seriously considered.’ Priscilla Hayner, ‘Fifteen Truth Commissions – 1974 to 1994: A Comparative Study’, 16 Human Rights Quarterly (1994) 597-655, at 604, footnote 4. 305. Mobekk, Transitional Justice and Security Sector Reform, supra note 262, at 43. 306. Olsen, Payne and Reiter, Transitional Justice in Balance, supra note 3, at 55. 307. Ibid., at 144. 308. Cobián and Reategui, ‘Truth Commissions and Development’, supra note 303, at 153.

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example, it became apparent that trials could rarely reconcile retributivism with reconciliation and that TRCs could seldom marry a widely acceptable historical account to the particularised experiences of victims. The dogmatic truth versus justice debate did little to generate constructive solutions to these problems - the tendency of humanitarians to engage in doctrinal hair-splitting at the expense of developing more imaginative and pragmatic responses to ongoing problems is one that is readily observable in 1990s transitional justice discourse.309 Whereas until now, transitional justice advocates had concentrated on trade-offs, tensions and dilemmas that arose between truth and justice, from the turn of the century there was an observable willingness to consider the goals and mechanisms of transitional justice as complementary and mutually-reinforcing.310 As transitional justice moved ‘from the exception to the norm’,311 the firm entrenchment of both TRCs and criminal trials as policy tools no doubt contributed somewhat towards the increased eagerness to consider an adaptable continuum of strategies over the previous binary choice.312 In quantitative terms, the sheer scale of mass abuse made it clear that no single mechanism could ever suffice.313 In qualitative terms, trial advocates began to accept that though they have an important role to play, they could only be part of what is required overall to mediate transition,314 while it became increasingly difficult to explain away Mendez’s complaint that revelation of the truth would demonstrate the egregiousness of impunity.315 As Lutz put it: ‘Truth or justice? Justice or truth? These cases show the fallacy of such dichotomies. Today, decision-makers designing transitional justice processes increasingly understand that they cannot afford to isolate such fundamental, interdependent interests, and that, in the aftermath of conflict or widespread atrocities, all of the accountability goals must be met.’316

Of course, it can be argued that this complementarity was not without precedent. For example, in Argentina the Conadep truth commission yielded significant amounts of evidence which was then used to mount prosecutions of the military junta.317 In Chile and Guatemala, the findings of truth commissions also paved the way for later prosecutions.318 Arthur suggests that at all the 309. Kennedy, Dark Sides of Virtue, supra note 43, at 114. 310. Leebaw, ‘Irreconcilable Goals’, supra note 86, at 98. 311. Teitel, ‘Genealogy’, supra note 20, at 71-72. 312. Alexander K. A Greenawalt, ‘Complementarity in Crisis: Uganda, Alternative Justice, and the International Criminal Court’, 50 Virginia Journal of International Law (2009) 107-162, at 130; Mani, Beyond Retribution, supra note 286, at 109. 313. Van Zyl and Freeman, ‘Conference Report’, supra note 272, at 4. 314. De Greiff, ‘Theorizing Transitional Justice’, supra note 92, at 6. See also UN Secretary-General, Rule of Law and Transitional Justice Report, supra note 1, at para. 47. 315. Mendez, ‘In Defence of Transitional Justice’, supra note 188, at 15-16. 316. Lutz, ‘Lessons Learned’, supra note 40, at 327. 317. De Brito, supra note 4, at 120-124. 318. Bohl, ‘Breaking the Rules of Transitional Justice’, supra note 10, at 574.

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major conferences in the early years of transitional justice there was an implied acceptance that elements of all measures should be considered by transitional policy-makers,319 while there was muted support in early literature.320 The Joinet Principles in 1997 attempted to impress upon policy-makers the non-hierarchical rights to know, to justice and to reparations, stressing that extrajudicial commissions of inquiry should work hand-in-hand with criminal prosecutions. 321 Even at it bitterest, the truth versus justice debate was couched more in terms of primacy, not exclusivity. Nevertheless, it is clear that with advent of the ICC and the completion of the SATRC in 1998, the divisiveness that characterised the debates over a Bosnian truth commission or the disavowal of criminal prosecution for apartheid were very much a thing of the past. Nowadays ‘[t]he immense popularity of both mechanisms.... and the strong support they receive from the international, human rights and donor communities have created an implicit obligation for countries newly emergent from conflict to adopt one or both.’322 The triumph of flexibility over rigidity became first apparent with the interaction of the Special Court for Sierra Leone with the national Truth and Reconciliation Commission (generally successful with some difficulties where their remits overlapped),323 and the integrated, simultaneous operation of East Timor’s Special Panels with the Commission for Reception, Truth and Reconciliation.324 Though in retrospect the realisation occurred quite late, it was now widely accepted that trials and truth commissions were mutually reinforcing and complementary,325 a position endorsed in peace-building doctrine.326 The figures appear to bear this enthusiasm out – 67% of states undergoing transitional justice now employ more than one mechanism,327 while combinations of trials with amnesties and 319. Arthur, ‘How “Transitions” Reshaped Human Rights’, supra note 2, at 355. 320. Neil J. Kritz, ‘Coming to Terms With Atrocities: A Review of Accountability Mechanisms for Mass Violations of Human Rights’, 59 Law & Contemporary Problems (1996) 127-152 at135 arguing that in cases of mass abuse, less serious offences should be handled by a non-criminal mechanism. 321. UN Economic and Social Council, Commission on Human Rights, The Administration of Justice and the Human Rights of Detainees: Question of the Impunity of Perpetrators of Human Rights Violations (Civil and Political), Revised Final Report Prepared by Mr. Joinet, Sub-Commission on Prev. of Discrimination & Protection of Mininorities, 49th Session, Agenda Item 9, U.N. Doc. E/CN.4/Sub.2/1997/20/Rev.1 (1997). 322. Mani, Beyond Retribution, supra note 286, at 89. 323. William A. Schabas, ‘A Synergistic Relationship: The Sierra Leone Truth and Reconciliation Commission and the Special Court for Sierra Leone’ in William A. Schabas and Shane Darcy (eds.), Truth Commissions and Courts: The Tension Between Criminal Justice and the Search for Truth (Kluwer Academic: Dordrecht, 2004) 3-54. 324. Pádraig McAuliffe, ‘East Timor’s Community Reconciliation Process as a Model for Legal Pluralism in Criminal Justice’, 12 Journal of Law, Social Justice and Global Development (2008) 1-22. 325. Leebaw, ‘Irreconcilable Goals’, supra note 86, at 103 and Laplante, ‘Outlawing Amnesty’, supra note 156, at 981. 326. UN Secretary-General, Rule of Law and Transitional Justice Report, supra note 1, at paras. 25-26. 327. Olsen, Payne and Reiter, Transitional Justice in Balance, supra note 3, at 53.

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truth commissions tend to correspond with positive outcomes for democracy and governance.328 (It should of course be remembered that the causal relationship between the two may of course be reversed – strong transitions may be conducive to successful transitional justice mechanisms.)329

5.1 Reconciling Ambition with Impossibility What is clear is that whereas initially transitional justice was fundamentally reactive in testing the bounds of what was possible, because it was no longer fundamentally tied to the stability of society, reckoning with the past now became a more proactive concern with the desirable. It is worth noting that trials and truth commissions reached a quantitative peak in usage between 1999 and 2001,330 a period identified as the ‘tipping point’ in the globalisation of justice.331 In so optimistic an environment, the boundaries of what could be done had shifted quite dramatically: ‘The cumulative effect is that the modalities of dealing with the past – the constraints and possibilities and indeed responsibilities – and the balance between justice and pragmatism that characterizes every such society, are no longer solely a condition of the dynamics of transition within a particular society.’332

If until now transitional justice had been more concerned with mediating the transition than delivering justice, the emphasis now switched to the latter. However, optimism that transitional justice could constitute ‘a universe of options for the transformation of society from a killing machine to a humane government’ was tempered by humility that no one tool or series of tools could on their own make the decisive shift towards a positive peace.333 Even the best designed transitional mechanisms occurred in what De Greiff labels ‘very imperfect worlds,’ namely societies characterised not just by the massive and systematic violation of norms, but by the fact that there are enormous disadvantages implicated in any attempt to enforce compliance.334 It became apparent in the ad hoc tribunals, SATRC and their immediate successors that to pursue transitional accountability is to entertain ‘the near inevitability of imperfect justice.’335 Perhaps the most obvious example of the paradoxes of transitional justice is the fact that the crimes 328. Ibid., at 6-7. 329. James L. Gibson, ‘The Contribution of Truth to Reconciliation: Lessons from South Africa,’ 50 Journal of Conflict Resolution (2006) 409–432. 330. Olsen, Payne and Reiter, Transitional Justice in Balance, supra note 3, at 101. 331. Sikkink, Justice Cascade, supra note 79, at 191. 332. Edward Newman ‘“Transitional Justice”: The Impact of Transnational Norms and the UN’, 9 International Peacekeeping (2002) 31-50 at 45. 333. David J. Scheffer, ‘The Tool Box, Past and Present, of Justice and Reconciliation for Atrocities’, 95 American Journal of International Law (2001) 970-977 at 970. 334. De Greiff, ‘Theorizing Transitional Justice’, supra note 92, at 4-5. 335. Kritz, ‘Where We Are’, supra note 14, at 30.

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that typify accountability between regimes such as genocide, torture, persecution and war crimes require the most severe legal response, but no punishment can adequately communicate the appropriate scale of outrage. Even if a punishment commensurate with the crimes was possible, it is impossible for punishment to be comprehensive given the vast scale of those involved in atrocity. In the era before transitional justice was mainstreamed, Shklar posited that ‘[i]t is indeed doubtful that legal provisions can be devised for events of this sort. There are no civilized responses that are fitting, and certainly no legal norms can cope.’336 Experience since 1989 demonstrated that such intractable difficulties did not admit of facile resolution. No state had ever undertaken process of trial that has prosecuted more than a fraction of those culpable. No truth commission was able to disclose what happened to a majority of the victims or secure itself from revisionist attack. No reparations process could adequately compensate more than a fraction of victims, no lustration process could reconcile sufficient punishment with the smooth operation of the apparatus of the reforming state. To the suffering of individuals and the destruction of a wider society, transitional justice can only approximate a response, an illusory closure. In response to criticism, there emerged external and internal pressure to ‘reframe’ the field to include broader agendas and issues,337 to pursue and balance multiple goals.338 This was not entirely unpredictable - as Kennedy notes, the failures of particular humanitarian initiatives are usually interpreted as warnings to do more, to intensify effort.339 In the mid-1990s it was argued that transitional justice needed to mimic the women’s movement, to consciously expand into other fora to compensate for the shortcomings of existing approaches.340 By the turn of the century, the need for broader conceptual and contextual frameworks was more widely articulated and accepted.341

5.2 The Expansion of Transitional Justice The infinite malleability of transitional justice became most pronounced as the concept expanded far beyond what had been envisaged in the field’s formative decade. What might best be described as the ‘do everything, engage everyone’ era342 was manifested in five developments:

336. Shklar, Legalism, Morals, and Political Trials, supra note 26, at 167. 337. Bell, ‘Field’, supra note 16, at 13. 338. Lutz, ‘Lessons Learned’, supra note 40, at 327. 339. Kennedy, Dark Sides of Virtue, supra note 43, at 143. 340. Roht-Arriaza, ‘Combating Impunity’, supra note 6, at 102. 341. Rama Mani, ‘Does Power Trump Morality?’ in Schabas, Hughes and Thakur (eds.), Atrocities and International Accountability, supra note 114, 23-41 at 23. 342. Gready, ‘Reconceptualising Transitional Justice’, supra note 21, at 7.

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1) An exponential development of theory and practice coupled with a progressive consensus on holism 2) The rise of utilitarian justifications for trial 3) Expansion into distinctly non-transitional contexts 4) Increased localisation 5) Attention to structural injustice and parallel exploitations

It should of course be pointed out that for all the diversification, expansionism and localisation of transitional justice that we see in this era, the by-now traditional responses of criminal justice, amnesty and truth commissions remained central. Most innovation and theorising still occurred within these fields, while the plethora of mechanisms developed were largely complementary to these institutions. Furthermore, many of the debates over stability versus justice or the merits of truth versus trial recurred, albeit in the particular context of individual transitions as opposed to as part of a generalised debate. 5.2.1. An exponential development of theory and practice married to a progressive consensus on holism Though even very recent works in transitional justice counsel against ‘one-sizefits-all solutions’ (in the sense of technocratic and decontextualised blueprints for action), in truth the danger is greatly exaggerated.343 Since its earliest days, scholars and advocates in the field have pursued a common intellectual framework to grapple with accountability issues, but never a common plan of action. It is increasingly rare to hear anyone advocate universal solutions – the quixotic early search for one supreme mechanism has given way to a panoply of simultaneous media whose invariably imperfect application will depend on context. While Lutz argues that external intervention has contributed to standardisation of transitional goals and methods,344 the greater tendency to consult with (and sometimes defer to) local civil society means that there is little rigidity in the design of the usual template of trial, TRC and reparations, with plenty of experimentation within and without. With the acceptance of truth commissions and criminal justice as complementary, the challenge now became to fine tune and better coordinate the mechanisms.345 Debates about best practice replaced earlier controversies about whether or what to practice, in an environment that increasingly welcomed

343. For example, Andriu, ‘A New Discipline’, supra note 24, at 22; Nagy, ‘Critical Reflections’, supra note 173, at 275; Orentlicher, ‘“Settling Accounts” Revisited’, supra note 123, at 18. 344. Lutz, ‘Lessons Learned’, supra note 40, at 333. 345. Kritz, ‘Where We Are’, supra note 14, at 21.

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wide discretion in the design and implementation of mechanisms.346 With the growth of institutions and journals came an accelerated process of contagion learning, where policy-makers in one context appropriated the knowledge and methodologies accumulated in previous transitions.347 Nevertheless, sensitivity to the peace-building ecology and consultation with affected communities became paramount - few nowadays have the temerity to make overarching generalisations about what is appropriate.348 Two main engines of this expansion are visible. The first was a palpable desire to respond to the adversity faced by those who had suffered under war or dictatorship. Criminal justice was previously criticised for its instrumentalist attitude to victim witnesses,349 its confrontational nature350 and focus on the perpetrator.351 TRCs, though presumed to be more victim-centred, were criticised for governmental usurpation of the victim’s exclusive right to forgive,352 re-traumatisation353 and, of course, for by-passing criminal justice.354 Mani, for example, called for ‘an inclusive, flexible, sensitive, survivor-oriented form of reparative justice, rather than one-shot, politically-charged and emotive single mechanisms, i.e. either truth and reconciliation commissions or trials alone.’355 Transitional justice became self-consciously victim-centric,356 while simultaneously reconceiving those who suffered as survivors with agency and choice as opposed to passive martyrs.357 A restorative paradigm of justice concerned with the individual, the family and the local community, as opposed to the national society, became dominant.358 Practitioners began to apply the enormous body of soft law developed since the 346. Pablo de Greiff, ‘Transitional Justice, Security and Development: Security and Justice Thematic Paper’, World Development Report 2011(2010), at 3. 347. Alexandra Barahona de Brito et al, ‘Conclusions’ in De Brito et al (eds.), The Politics of Memory, supra note 4, 303-314 at 308. 348. UN Secretary-General, Rule of Law and Transitional Justice Report, supra note 1, at para. 46 349. McEvoy, ‘Beyond Legalism’, supra note 7, at 438; Bell, ‘New Law’, supra note 165, at 112. 350. Mani, ‘Rebuilding an Inclusive Political Community’, supra note 44, at 515. 351. Ryngaert, ‘Introduction’, supra note 252, at x. 352. Minow, Between Vengeance and Forgiveness, supra note 98, at 17. 353. Hayner, Unspeakable Truths, supra note 202, at 141-144. 354. Charles Villa-Vicencio and Erik Doxtader (eds.), The Provocations of Amnesty: Memory, Justice, and Impunity (Africa Research & Publications: London, 2003). 355. Mani, ‘Does Power Trump Morality?’, supra note 341, at 23. 356. Louis Bickford, ‘Transitional Justice’ in Encyclopedia of Genocide and Crimes Against Humanity (Macmillan Reference: USA, 2004) 1045-1048 at 1045. 357. Mobekk, Transitional Justice and Security Sector Reform, supra note 262, at 2; Huyse, All Things Must Pass, supra note 83, at 32. 358. Janine Natalya Clark, ‘The Three Rs: Retributive Justice, Restorative Justice, and Reconciliation’, 11 Contemporary Justice Review (2008) 331-350 at 339-342; Kieran McEvoy and Anna Eriksson, ‘Restorative Justice in Transition: Ownership, Leadership, and “Bottom-Up” Human Rights’ in Dennis Sullivan & Larry Tifft (eds.), Handbook of Restorative Justice: A Global Perspective (Routledge: London, New York, 2006) 321-336; Miriam J. Aukerman, ‘Extraordinary Evil,

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millennium on issues like impunity, indemnification of victims and truth.359 The theory and practice of TRC’s became more sophisticated, requiring victim-centred consultation, detailed terms of reference, qualified staffing, impact assessment and follow-up.360 Trials had less room for development, but responded to the perceived gap between legal justice and psychological justice.361 Victims emerged as one of the main constituencies of criminal tribunals as the ad hoc tribunals neared completion362 and consultation became the paramount virtue of transitional justice planning.363 Survivors were given a central role in the ICC and subsequent tribunals,364 and trust funds for victims emerged.365 Outreach, initially neglected at the ad hoc tribunals, became imperative.366 The second main engine of expansion was the desire to incorporate the bystanders, the opportunists, conformists and the profiteers that more established accountability processes neglected,367 which followed on research outlining the role of mass participation and ambivalence in repression or war.368 It was argued that the attribution of criminal or moral responsibility at trial or truth commission might implicitly exonerate those who were excluded but nevertheless culpable.369 Because social violence pre-transition

Ordinary Crimes: A Framework for Understanding Transitional Justice’, 15 Harvard Human Rights Journal (2002) 39-98 at 77-84. 359. Most notably the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law UN Doc. A/RES/60/147 (2005) and the Updated set of principles for the protection and promotion of human rights through action to combat impunity, UN Doc. E/CN.4/2005/102/Add.1, (8 February 2005). 360. Office of the United Nations High Commissioner for Human Rights, ‘Rule of Law Tools for Post-Conflict States: Truth Commissions’, . 361. Mani, Beyond Retribution, supra note 286, at 174. 362. Frédéric Mégret, ‘International Prosecutors: Accountability and Ethics’ Leuven Centre for Global Governance Working Paper No. 18 (2008), at 36. 363. UN Secretary-General, Rule of Law and Transitional Justice Report, supra note 1, at paras. 16, 19 and 20. 364. See Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 901002, Article 68. 365. Ibid., Article 79. 366. UN Secretary-General, Rule of Law and Transitional Justice Report, supra note 1, at para. 46, urging an ‘effective communications strategy’ to manage public expectations. 367. Kritz, ‘Where We Are’, supra note 14, at 35. 368. Particularly influential works include Elster, Closing the Books, supra note 27, at 137-143; Mark A. Drumbl, ‘Collective Violence and Individual Punishment: The Criminality of Mass Atrocity’, 99 Northwestern University Law Review (2005) 539-610; and Eric Stover and Harvey M. Weinstein (eds.), My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Cleansing (Cambridge University Press, 2004). 369. Osiel, ‘Why Prosecute?’, supra note 28, at 127.

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was totalising, it became widely accepted that transitional justice must not deal with victims and perpetrators only, but rather the acquiescent society as a whole.370 Even improvements in the traditional mechanisms risked an unwarranted parsimony that might exclude or diminish other approaches that could fill the gaps. Traditional mechanisms were increasingly combined with other mechanisms to meet the ever-expanding range of objectives like healing, accountability, restoration and institutional reform. In contrast to the partisan approach of the past, civil society argued that no single measure alone could be as effective as in combination with others: ‘Without any truth-telling or reparation efforts, for example, punishing a small number of perpetrators can be viewed as a form of political revenge. Truth-telling, in isolation from efforts to punish abusers and to make institutional reforms, can be viewed as nothing more than words. Reparations that are not linked to prosecutions or truth-telling may be perceived as ‘blood money’—an attempt to buy the silence or acquiescence of victims. Similarly, reforming institutions without any attempt to satisfy victims’ legitimate expectations of justice, truth and reparation is not only ineffective from the standpoint of accountability, but unlikely to succeed in its own terms.’371

Culturally cognizable memory projects (shrines, art, monuments, museums, name changes), traditional justice mechanisms, opening files, transnational litigation, vetting, lustration, reparations and apologies, all of which been undertaken in the past but marginalised to a greater or lesser extent in literature and practice, were now firmly established in the transitional justice tool box in a distinctly non-hierarchical manner.372 Some now drew a distinction between mechanisms for accountability like trials, truth commissions and lustration and victim-oriented measures like reparations and public memory projects,373 though others quite reasonably argue that the demand for accountability is strongest from victims.374 Further impetus came from the integration of transitional justice with broader peace-building strategies to address sources of violence, many of which bear relatively tangential relation to justice for past crimes.375 In particular, much 370. Brahm, ‘Civil Society’, supra note 77, at 1, Teitel, ‘Genealogy’, supra note 20, at 82, Leebaw, ‘Irreconcilable Goals’, supra note 86, at 100. 371. International Center for Transitional Justice, ‘What is Transitional Justice?’ (2008), at 1. 372. Bell, ‘Field’, supra note 16, at 19. 373. Olsen, Payne and Reiter, Transitional Justice in Balance, supra note 3, at 1. 374. Raquel Aldana-Pindell, ‘An Emerging Universality of Justiciable Victims’ Rights in the Criminal Process to Curtail Impunity for State-Sponsored Crimes’, 26 Human Rights Quarterly (2004) 605-685; Mobekk, Transitional Justice and Security Sector Reform, supra note 262, at 28 and Fletcher and Weinstein, ‘Violence and Social Repair’, supra note 9, at 590. 375. Chandra Lekha Sriram, ‘Justice as Peace? Liberal Peace-building and Strategies of Transitional Justice’, 21 Global Society: Journal of Interdisciplinary International Relations (2007) 579-591.

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progress has been made in integrating transitional justice with Disarmament, Demobilisation and Reintegration (DDR, a peace-building strategy to facilitate disbanding military fighters and their reintegration into society) and Security Sector Reform (now bundled with Justice as SSJR).376 For many years, these issues were treated separately as the security sector debates became synonymous with military and police, but over time it became apparent that the two could not be considered in isolation from questions of justice.377 The realisation that transitional justice and DDR/SSJR could be either mutually re-enforcing or mutually destructive spurred institutional and doctrinal innovation coalescing around three common objectives: accountability, building of instructional capacities and non-reoccurrence.378 One of the most vigorous areas of debate now was whether these approaches should be simultaneous or sequenced, especially given the realisation with the 21st century trials of Chilean and Argentine generals that there might be more than one ‘bite of the apple’ as certain stronger mechanisms become more feasible over time.379 Underlying this concern with sequencing was an assumption ‘that something will work – the trick is to find out what.’380 These holistic new approaches required a new trans-disciplinary mindset.381 Characterised by some as a rendezvous discipline,382 a sub-discipline with interdisciplinary qualities383 and a field-cum-cloak,384 transitional justice scholarship drew on anthropological, developmental, economic, feminist and sociological critiques to addresses these new dilemmas and opportunities. This, of course, did little to restrain the growth of the area. One thing that is apparent is that the justifications for transitional justice responses have become increasingly divorced from its initial roots in law as it expands. Within ten years of the legal basis for transitional accountability being enunciated, it became commonplace to argue for an exceptionalist rule of law to mediate the difficulties and opportunities of transition.385 Even this posi376. Ana Cutter, Pablo De Greiff and Lars Waldorf (eds.), Disarming the Past: Transitional Justice and Ex-Combatants (Social Science Research Council: New York, 2009). 377. UNDP, Justice and Security Sector Reform: BCPR’s Programmatic Approach (Bureau of Crisis Prevention and Recovery: New York, 2002). 378. Mobekk, Transitional Justice and Security Sector Reform, supra note 262, at 6. 379. Chandra Lekha Sriram, ‘Transitional Justice and Peace-Building’ in Sriram and Pillay (eds.), Peace Versus Justice, supra note 93, 1-17 at 5; Tim Muriti, Sequencing and the Administration of Justice to Enable the Pursuit of Peace (Institute for Justice and Reconciliation: Cape Town, 2010); Joanna Quinn, ‘Chicken and Egg? Sequencing in Transitional Justice: The Case of Uganda’, International Studies Association, Conference Papers for the Annual Meeting (2007) 1-23. 380. Fletcher, Weinstein and Rowen, ‘Context, Timing and Dynamics’, supra note 231, at 170. 381. Wendy Lambourne, ‘Transitional Justice and Peace-building After Mass Violence’, 3 International Journal of Transitional Justice (2009) 28-48 at 35. 382. McEvoy, ‘Beyond Legalism’, supra note 7, at 433. 383. Ohlin, ‘On the Very Idea of Transitional Justice’, supra note 268, at 51. 384. Bell, ‘Field’, supra note 16, at 24. 385. Teitel, Transitional Justice, supra note 49, at 11-27; Padraig McAuliffe, ‘Transitional Justice

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tion was outflanked by those who argued that law was over-privileged386 and that legalisation narrowed the possibilities for transitional justice’s development.387 The growth of non-legal approaches has led some to question ‘whether any threshold remained regarding what constitutes the predicate transitional rule of law.’388 The divorce of transitional justice from accountability worried some on the basis that it makes distinguishing between legitimate and illegitimate ends of transitional justice more difficult.389 5.2.2 The growth of utilitarianism One notable development at the end of the 1990s was the change in emphasis in the rationale for pursuing transitional criminal accountability. By the end of the decade, the positivist and retributivist theories of transitional criminal justice one sees in the early literature (i.e. the simple application of pre-existing law according to established judicial principles) gave way to more utilitarian rationales like rehabilitation, deterrence, expressivism and containment.390 Those who advocate criminal accountability began to do so more on the basis of its socially useful consequences than on the force of pre-existing legal commitments.391 While the jurisprudence of the Nuremberg and Tokyo trials that laid the foundations for the legal obligations betrayed a palpable retributive impulse, the ad hoc tribunals and ICC were promoted in far more ambitious fashion as instrumental forms of peace-building.392 The UN’s seminal Rule of Law and Transitional Justice Report summarised the aspirations for transitional criminal trials as ‘bringing to justice those responsible for serious violations of human rights and humanitarian law, putting an end to such violations and preventing their recurrence, securing justice and dignity for victims, establishing a record of past events, promoting national reconciliation, re-establishing the rule of law and contributing to the restoration

and the Rule of Law: The Perfect Couple or Awkward Bedfellows?’, 2 Hague Journal on the Rule of Law (2010) 110-154. 386. Roht-Arriaza, ‘New Landscape’, supra note 19, at 1. 387. McEvoy, ‘Beyond Legalism’, supra note 7; Fletcher and Weinstein, ‘Violence and Social Repair’, supra note 9, at 584. 388. Teitel, ‘Genealogy’, supra note 20, at 89. 389. Bell, ‘Field’, supra note 16, at 27. 390. See generally Aukerman, ‘Extraordinary Evil, Ordinary Crimes’, supra note 358 and Sloan, ‘Expressive Capacity of International Punishment’ supra note 241, at 65-88. 391. For an overall view of utilitarian and consequentialist theory, see Chin Liew Ten, Crime, Guilt and Punishment: A Philosophical Introduction (Clarendon Press: Oxford, 1987) 7-38. 392. For example, UN Security Council Resolution 955 outlines accountability, deterrence, restoration of peace and reconciliation amount the ICTR’s purposes (UNSCOR 3453rd Meeting, SC Res 955, 8 November 1994, Preamble).

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of peace.’393 The belief that the ICC’s symbolism and interaction with national courts could transform national political culture was widespread.394 The shift from a retributive application to the individual perpetrator(s) to an approach more corrective to the wider society can be explained by the interaction of three factors at play by the end of the 1990s, which have already been examined - a messianic belief in potency of transitional justice, the widespread (and unfair) caricaturing of criminal justice as retribution or vengeance, and more a sober acceptance that conflict and authoritarianism had inescapably collective, society-wide causes and consequences. The Orentlicher justification for punishment of a single individual based primarily on existing legal standards could respond to a very limited degree with the many dilemmas of transition. As the need for social reconstruction became more apparent with a commensurate focus on the part of the international community on peace-building, there was an increased focus on the collective and structural: ‘Generally, the more deeply rooted the causes of atrocities, the more pressures accountability processes will face to be not only the arbiter of justice in specific cases, but also to become an agent for achieving more systemic social change.’395

Transitional trial advocates no longer concerned themselves solely with the legal/moral imperative of punishing past violence but instead argued that trials could reduce that violence by becoming an active instrument of social reconstruction, achieving purposes that were not exclusively based on justice but which instead used justice as a catalyst, symbol or guarantor of better social consequences.396 A secondary explanation for the growth of utilitarian rationales might be found in the moralism that inheres in punishment. As Kennedy observes, humanitarians tend to worry as much about the defensibility of a policy like transitional justice as its potential to generate useful consequences.397 In contradistinction to the early days of transitional justice, one observes in the later literature a noticeable discomfort with the retributive rationale, even when couched in the language of victims’ rights. Though the retributive impulse answers well to the counterfactual ‘what if there is no justice?’ question that accompanies all transitional justice policy, the persistent conflation of criminal justice with backwards-looking, unproductive retribution and revenge appeared distasteful and less saleable when 393. UN Secretary-General, Rule of Law and Transitional Justice Report, supra note 1, at para. 38. 394. Jamie Mayerfeld, ‘The Mutual Dependence of External and International Justice: The Democratic Achievement of the International Criminal Court’, 12 Finnish Yearbook on International Law (2001) 71-107. 395. Jane Stromseth, ‘Introduction: Goals and Challenges in the Pursuit of Accountability’ in Jane Stromseth (ed.), Accountability for Atrocities: National and International Responses (Transnational Publishers: Ardsley, 2003) 1-36 at 6. 396. Rosa Ehrenreich Brooks, ‘The New Imperialism: Violence, Norms and the “Rule of Law’”, 101 Michigan Law Review (2003) 2275-2340 at 2321. 397. Kennedy, Dark Sides of Virtue, supra note 43, at 138.

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compared with more communitarian objectives. Klabbers398 and Tallgren399 (like Arendt before them)400 acknowledge that the coercive and intentional infliction of pain for the sake of punishment is for many an uncomfortable proposition. In a globalised transitional justice, the argument that the retributivist discourse of ‘just desserts’ is too imbued with Judaeo-Christian notions of moral order and divine punishment appeared to carry much currency.401 The fact that the demand for retribution is highly variable according to the nature of the crimes, passage of time, spread of responsibility, and relationships of victims and perpetrators also made it an uncomfortable basis for policy.402 Indeed, retribution is nowadays routinely euphemised as the more constructive notion of ‘combating impunity,’ most notably in the Rome Statute.403 Because both positivism and the Kantian deontology that underpins retributivism attempt to separate questions of justice from political conceptions of the common good in a particular community, the older justifications for criminal trial became outmoded.404As a result, many of those who embraced utilitarianism in advocating international criminal justice did so on the basis of a conscious and explicit break from retributivism.405 Because no punishment can adequately respond to mass atrocities like genocide, torture or persecution, bigger consequentialist claims needed to be made about transitional justice to justify it. Some of the arguments that trials can ground reconciliation, socio-political pedagogy and containment are justified, some are the product of wishful thinking, but some constituted deliberate overselling on the part of advocates of the merits of criminal justice. Wilson, for example, argues that though its proponents do not really believe in it, the deterrence rationale is employed to ‘sell’ international criminal tribunals as a palatable, publically justifiable policy.406 It should be noted that NGO and scholarly assertions of the utility of criminal trial have outpaced the judgments themselves. The philosophical justifications for sentencing have never been rationalised, presenting a muddled picture of putative transitional 398. Jan Klabbers, ‘Just Revenge? The Deterrence Argument in International Criminal Law’, 12 Finnish Yearbook of International Law (2001) 249-267. 399. Tallgren, ‘Sensibility and Sense’, supra note 38, at 591. 400. Hannah Arendt, Eichmann in Jerusalem, supra note 26, at 277. 401. Kent Greenawalt, ‘Punishment’, 74 Journal of Criminal Law & Criminology (1983) 343-362 at 347. 402. Carlos S. Nino, Radical Evil on Trial (Yale University Press, 1996) at 126-127. 403. Rome Statute, supra note 363, Preamble. 404. Rabkin, ‘No Substitute for Sovereignty’, supra note 236, at 128. 405. Nino, Radical Evil on Trial, supra note 402, at 126-127 and Jaime Malamud-Goti, ‘Transitional Government in the Breach: Why Punish State Criminals?’, 12 Human Rights Quarterly (1990) 1-16 at 14-15. 406. Remarks delivered at the Roundtable on Human Rights (International Studies Association: New Orleans, Louisiana, 2010) cited in Leslie Vinjamuri ‘Deterrence, Democracy and the Pursuit of International Justice’, 24 Ethics & International Affairs (2010) 191-211, at 199, footnote 23.

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penology.407 Though the ICTY appellate chamber has argued that the law applied ‘must serve broader normative purposes in light of its social, political and economic role’,408 Henham argues that in the absence of clarity, the tribunals have synthesized and contextualised their justifications in a predominantly retributivist paradigm more so than a utilitarian one.409 The tendency to expropriate stable-state municipal penological theories without regard to the defining natural variation and individuality of transitional societies is increasingly criticised.410 5.2.3 Expansion into distinctly non-transitional contexts While political transition itself is a finite and contained phenomenon with temporal limits at the undemocratic/conflicted and democratic/peaceful ends of the interregnum between regimes, the field of what we call transitional justice has become divorced from these moorings and appears to have no limits to its field of application. The label is now routinely attached to contexts where there is no apparent transition, a development conceived of as a natural and inevitable development in a globalised, ‘steady-state’ phase of transitional justice which departed from the preoccupation with past violence to treat conditions of persistent conflict, laying the foundation for a normalised law of violence where transitional justice became commonplace as opposed to exceptional.411 Given the boundless pliability of inherently ad hoc mechanisms like special tribunals, truth commissions, commissions of inquiry or lustration committees, it should come as no surprise that these tools have been employed in human rights work in many different types of societies beyond the merely transitional. In much transitional justice discourse, therefore, a highly flexible definition of transitional justice now applies, including measures of accountability undertaken before a peace agreement is finalised (or even mooted), processes in long-established Western democracies to address historic injustices against marginalised groups, processes in non-democratic states where there is no regime change and mechanisms adopted when there is a significant change in the political system from one civil democratic government to another. As Bell notes, ‘little attempt has been made to define a concept of transition that would place limitations on when transitional justice can

407. See generally Ralph Henham, ‘The Philosophical Foundations of International Sentencing’, 1 Journal of International Criminal Justice (2003) 64-85; Drumbl, ‘Collective Violence and Individual Punishment’, supra note 368; and Sloan, ‘Expressive Capacity of International Punishment’, supra note 241, at 39-40. 408. Prosecutor v. Tadić, Case no. IT-94-1-A, ICTY Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 October 1995) at para. 75. 409. Henham, Philosophical Foundations’, supra note 407, at 69 and 74. 410. Tallgren, ‘Sensibility and Sense’, supra note 38 and Gray, ‘An Excuse-Centred Approach’, supra note 292. 411. Teitel, ‘Genealogy’, supra note 20, at 89-93.

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legitimately be applied.’412 There are three areas in particular where transitional justice mechanisms are applied outside of the democratic/post-conflict transition paradigm, namely ‘transitional’ justice in mature democracies, in civil-civil transitions and in authoritarian regimes. (a) ‘Transitional’ Justice in Mature Democracies Transitional justice mechanisms have ceased to be applied solely to post-authoritarian regimes or post-conflict situations. Truth commissions, restoration projects, historical inquiries and trials are increasingly employed in mature democracies attempting to repair instances of past abrogation of the universalistic ideas on which they claim legitimacy.413 These processes occur long after their present democratic form has been established and consolidated, but are nevertheless referred to as instances of transitional justice. For example, the German Government has apologised and paid money to Namibians for the genocide against the Herrero in the field decade of the last century.414 In the United States, the Greensboro Truth Commission and reparations processes for Japanese-American internees are further instances of historical justice viewed through the transition lens.415 The International Center for Transitional Justice reports on the settlement package awarded to the Canadian Government to the estimated 80,000 survivors from the indigenous children forcibly assimilated in church-run Indian Residential Schools and the Truth and Reconciliation Commission whose mandate was to investigate it.416 These processes do valuable work and constitute an appropriate response to earlier arguments that a better understanding of reparative politics would consider crimes committed by liberal regimes as well as authoritarian ones. However, while responding to the treatment of aborigines417 or restitution of art stolen by the Nazis418 may comprise what Olick and Coughlin call a ‘responsible politics of regret,’ they exist at a dramatic remove from the paradigmatic transition.419 While the mechanisms used perform the standard functions of legitimation and national reconciliation for which transitional justice mechanisms have been de412. Bell, ‘Field’, supra note 16, at 23. 413. Torpey, ‘Introduction’, supra note 264, at 9. 414. Huyse, All Things Must Pass, supra note 83, at 34. 415. Olsen, Payne and Reiter, Transitional Justice in Balance, supra note 3, at 2. 416. International Center for Transitional Justice, ‘Canada’s TRC: Special Challenges’ (2008), . 417. RS Ratner, William Carroll and Andrew Woolford, ‘Wealth of Nations: Aboriginal Treaty Making in the Era of Globalization’ in Torpey (ed.), Politics and the Past, supra note 30, 217-248. 418. Therese O’Donnell, ‘The Restitution of Holocaust Looted Art and Transitional Justice: The Perfect Storm or the Raft of the Medusa?’, 22 European Journal of International Law (2011) 49-80. 419. Jeffrey Olick and Brenda Coughlin, ‘The Politics of Regret: Analytical Frames’ in Torpey (ed.), Politics and the Past, supra note 24, 37-62 at 49-50.

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signed in post-authoritarian and post-conflict situations, Sriram argues that the problems they face are less intractable and not tied to the stability of the society in question, making the issues distinctly different from transitional justice.420 (b) ‘Transitional’ Justice in Civil-Civil Transitions A notable recent development is the extension of transitional justice to instances of quasi-transition from one civil government where human rights violations used to occur to another less likely to do so. Prime examples include the change in Mexico in 2000 from decades of PRI hegemony to greater political openness421 and the civil-civil transition in Nigeria in 2007.422 Such transitions are analogous to transitions in long-established ‘conflicted democracies’ which experience prolonged political violence from deep-seated societal division, the paradigmatic example being Northern Ireland. While only South Africa has attracted more transitional justice scholarship than Northern Ireland, Ní Aoláin and Campbell note that the imperative in such societies is to reform rather than transform, though the typology will depend on how great the state was compromised in the violence and how far it has gone to acknowledge it.423 These quasi-transitions are radically different from the paradigmatic transition from which the field emerged, given that there is usually significant public acceptance of the government and the rule of law, human rights abuses are considered exceptional long before the political change, and there is little incentive to further dismantle or reconstruct the state.424 (c) ‘Transitional’ Justice in Authoritarian Regimes In the early days of transitional justice discourse, Cohen argued that the ‘forget the past’ rhetoric used by the old regime when handing over power to liberalising agents constituted ‘an attempt to avoid accountability by using liberal slogans in bad faith.’425 The last twenty years have also seen regimes tactically adopt the liberal antithesis of ‘forget the past’, namely transitional justice, in situations (a) where the transition is from one form of authoritarianism to another, and (b) where there is no transition but an authoritarian regime adopts mechanisms of transitional justice without simultaneously undergoing a process of political reform. As regards the 420. Chandra Lekha Sriram, ‘Transitional Justice Comes of Age: Enduring Lessons and Challenges’, 23 Berkeley Journal of International Law (2005) 506-523 at 522. 421. Paul Seils, A Promise Unfulfilled? The Special Prosecutor’s Office in Mexico (International Center for Transitional Justice: New York, 2004). 422. Hakeem O. Yusuf, Transitional Justice, Judicial Accountability and the Rule of Law (Routledge: New York, 2010) at 92. 423. Ní Aoláin and Colm Campbell, ‘The Paradox of Transition’, supra note 113, at 187. 424. Ibid., at 188. 425. Cohen, ‘State Crimes of Previous Regimes’, supra note 171, at 41.

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former category, a prime example is the truth commission established by Chad’s new President Idriss Déby to expose the venality of the previous Hissene Habré regime and to bolster the standing of the new government, while he relied on the same violent tactics and personnel while he ruled.426 Probably the most comprehensive attempts at transitional accountability ever have occurred in Rwanda and Ethiopia where thousands of trials of genocidaires and the Derg respectively have taken place. In Ethiopia, like Rwanda, domestic trials were used as ‘a political tool in order to try to create a decisive breach with the past and the old political order, concomitantly giving legitimacy to this new system of governance.’427 Though scholarship is content to consider these episodes within the canon of transitional justice even where they criticise them, it marks a significant departure from the earlier consensus that transition meant ‘the shift from a non-democratic regime type to a democratic one, not merely a change of government or a process of liberalisation within an authoritarian regime.’428 This is a useful definition to bear in mind in a new normative milieu where a normalised and globalised transitional justice may confer a hollow legitimacy on the exercise of power. 5.2.4 Increased Localisation By the late 1990s, there developed a slow realisation that with the focus on elite bargains and national peace processes, too little attention had been given to the local level of village, town and rural area where local cultures of violence could endure past state-level agreements.429 One reason commonly proffered for the failure of state-centric processes was their marginalisation of the local.430 Over time, this discomfort increased among transitional justice advocates: ‘No one who attends transitional justice conferences in postconflict societies can long fail to notice the near total disconnect between the discourse of local participants, often focussed on historically specific grievances about who did what horrible thing to whom, and we more “cosmopolitan,” peripatetic academic consultants, touting larger lessons drawn from other countries recently facing similar predicaments.’431

As transitional justice became more comfortable with restorative initiatives, it became recognisably more participatory and public.432 ‘Ownership’ and ‘solidar426. Snyder and Vinjamuri, ‘Trials and Errors’, supra note 82, at 33. 427. Kjetil Tronvoll ‘A Quest for Justice or the Construction of Political Legitimacy?’ in Kjetil Tronvoll, Charles Schaefer and Girmachew Alemu Aneme (eds.), The Ethiopian Red Terror Trials: Transitional Justice Challenged (James Currey: London, 2009) 84-97 at 84. 428. De Brito et al, ‘Introduction’, supra note 50, at 11. 429. For example, Roht-Arriaza, ‘Combating Impunity’, supra note 6, at 98. 430. McEvoy, ‘Beyond Legalism’, supra note 7, at 424. 431. Mark Osiel, ‘The Banality of Good: Aligning Incentives Against Mass Atrocity’, 105 Columbia Law Review (2005) 1751-1862 at 1756. 432. De Greiff, ‘Security and Justice Thematic Paper’, supra note 346, at 6.

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ity, not substitution’ became core organising principles of transitional justice.433 Truth commissions, in particular, began to work from bottom-up as opposed to top down. The biggest departure, however, was the willingness to incorporate mechanisms variously described as local, customary, sub-national or traditional justice in states with underdeveloped legal systems and civil services. One product of the initial concentration on legalist (some may say Western) modalities of transitional justice was the exclusion of customary and traditional forms of justice that would depart from liberal procedural and institutional norms.434 Rule of law reformers in peacebuilding had already begun to note the need to accommodate the division of labour between formal courts and traditional ones given the reliance on the latter to fill inevitable justice vacuums after transition.435 Practice differs enormously (in particular, some traditional processes are significantly more punitive than others) but typically involves a confession by perpetrator to victim in the surroundings of the local community, with a negotiated or arbitrated penalty and a societal balance deemed to be somewhat restored. However, like many of the other innovations examined thus far, transitional justice’s most significant early dalliances with customary law were more the product of circumstance than idealism. As Sriram argues, the use of Rwanda’s gacaca, like East Timor’s adaptation of nahe biti ceremonies, ‘was brought not because it was seen as virtuous or culturally appropriate in itself, but because the formal system was struggling to address large numbers of perpetrators.’436 This practical element is important – traditional justice mechanisms were initially welcomed as an alternative to vigilantism in the community437 and as offering a useful means of treating lesser offences that national processes cannot reach.438 Not for the first time, theoretical support has followed in the aftermath of pragmatic adaptation of the mechanism. The use of traditional justice mechanisms has been rationalised as a potentially more 433. ‘Too often, the emphasis has been on foreign experts, foreign models and foreign-conceived solutions to the detriment of durable improvements and sustainable capacity. Both national and international experts have a vital role to play, to be sure. But we have learned that effective and sustainable approaches begin with a thorough analysis of national needs and capacities, mobilising to the extent possible expertise resident in the country. Increasingly, the United Nations is looking to nationally led strategies of assessment’. UN Secretary-General, Rule of Law and Transitional Justice, supra note 1, at para. 15 and para. 17. 434. Drumbl, ‘Collective Violence and Individual Punishment’, supra note 368, at 597. 435. Julio Faundez, ‘Legal Development in Developing and Transition Countries – Making Haste Slowly’, 1 Journal of Law, Social Justice and Global Development (2001) 1-20; Erik G. Jensen, ‘The Rule of Law and Judicial Reform: The Political Economy of Diverse Institutional Patterns and Reformer’s Responses’ in Erik G. Jensen and Thomas C. Heller (eds.), Beyond Common Knowledge: Empirical Approaches to the Rule of Law (Stanford Law and Politics, 2003). 436. Sriram, ‘Justice as Peace’, supra note 375, at 585. 437. Louise Mallinder, ‘The Role of Amnesties in Conflict Transformation’ in Ryngaert (ed.), The Effectiveness of International Criminal Justice, supra note 252, 195-236 at 227. 438. McAuliffe, ‘Legal Pluralism’, supra note 324.

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intimate form of justice for more intimate forms of violence,439 as a reflection of the importance of the community over the individual440 and as a less bureaucratic, more informal, non-coercive, and cheaper alternative to custodial punishment.441 However, even advocates warn against the uncritical support now emerging for traditional mechanisms442 and their ‘seductive appeal,’443 given their lack of due process, perpetration of existing power hierarchies and lack of state oversight. To a lesser and slightly different extent, the localising trend is also visible in transitional criminal justice. International criminal justice has become more decentralised and more open to national involvement.444 The hybrid tribunals created since the turn of the century were at least in part established as a response to the perceived democratic deficit in the ad hoc tribunals where it became all too easy for certain groups to invoke the jurisdictional imperialism critique that trials were illegal political instruments, and thereby prejudice domestic opinion.445 It had become apparent that too much international control or insensitivity to local needs could see legitimacy tainted by perceptions of imperialism, or claims that the tribunal was the instrument of big powers. The top-down imposition of international courts unattuned to the needs of the local population (which were at best an afterthought in the creation of the ad hoc tribunals) incurred national enmity, especially when the municipal courts were given no opportunity to pronounce as to the legitimacy of the trials.446 For example, the dislocation of the tribunals to The Hague and Arusha meant there was little or no connection between the affected population and the trials.447 By contrast with the internationalism of the mid-1990s, the stringent complementarity regime in the Rome Statute has been interpreted as ‘testimony to the profound bias of States in favour 439. Gready, ‘Reconceptualising Transitional Justice’, supra note 21, at 14. 440. Mobekk, Transitional Justice and Security Sector Reform, supra note 262, at 49-50. 441. Mani, Beyond Retribution, supra note 286, at 36-37; Muna B Ndulo and Roger Duthie, ‘The Role of Judicial Reform in Development and Transitional Justice’ in de Greiff and Roger Duthie (eds.), Transitional Justice and Development, supra note 303, 250-281 at 256. 442. Mobekk, Transitional Justice and Security Sector Reform, supra note 262, at 78. 443. Mani, Beyond Retribution, supra note 286, at 38. 444. Michelle Sieff and Leslie Vinjamuri, ‘Prosecuting War Criminals: The Case for Decentralisation’, 2 Conflict, Security and Development (2002) 103-113 at 103-104 and 111. 445. See for example Laura Dickinson, ‘The Promise of Hybrid Courts’, 97 American Journal of International Law (2003) 295-310; Estelle R Higonnet, ‘Restructuring Hybrid Courts: Local Empowerment and National Criminal Justice Reform’, 23 Arizona Journal of International and Comparative Law (2006) 347-435; David Cohen, ‘“Hybrid” Justice in East Timor, Sierra Leone and Cambodia: “Lessons Learned” and Prospects for the Future’, 43 Stanford Journal of International Law (2007) 1-38. 446. The Human Rights Center and International Human Rights Law Clinic, University of California, Berkeley, & the Centre for Human Rights, University of Sarajevo, ‘Justice, Accountability and Social Reconstruction: An Interview Study of Bosnian Judges and Prosecutors’, 18 Berkeley Journal of International Law (2000) 102-166. 447. José Álvarez, ‘Crimes of State/Crimes of Hate: Lessons From Rwanda’, 24 Yale Journal of International Law (1994) 365-483 at 403.

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national, contextual solutions to what is by and large still perceived as an issue that is predominantly national.’448 5.2.5 Attention to structural injustice and parallel exploitations As noted earlier, transitional justice has begun to track and integrate with processes of peace-building. Of the three areas that positive peace-building aims to address, namely political/institutional incapacity, psychosocial trauma and economic/social debilitation, Stages I and II of transitional justice could only address the first and second issues.449 While trials and lustration answered to the question of legal justice for political criminality and TRCs and reparations began to address restorative issues of healing, advocates argued there was a significant lacuna in the area of socio-economic justice and emphasised the need to incorporate structural issues of development and economic redistribution in transitional justice policy. As victimisation was studied in greater depth came the realisation that it occurs on the level of gender, wealth and class, paving the way for a greater insistence on the indivisibility of rights in the literature that was not always appreciated in the hitherto predominant liberal legalist paradigm.450 For example, the South African TRC focused on civil and political abuses rather than on the ongoing systemic abuses which continued to bedevil the lives of blacks.451 With a greater understanding of how economic factors cause, exacerbate and generate conflict,452 it became apparent that the most pernicious structural effects may still be ongoing in the lives of survivor communities even if legal accountability or truth had been established, and may in fact unmake whatever gains transitional accountability had achieved.453 Trials could only single out individuals, often lacked the legal foundation to tackle economic crimes, and ignored wider social injustice.454 Truth commissions in South Africa, Chad, Guatemala and Peru had remits to examine socio-economic structures but their lack of impact merely 448. Frédéric Mégret, ‘Why Would States Want to Join the ICC? A Theoretical Exploration Based on the Legal Nature of Complementarity’ in Jann K. Kleffner and Gerben Kor (eds.), Complementary Views on Complementarity (TMC Asser Press: The Hague, 2006) 1-51 at 23. 449. Mani, Beyond Retribution, supra note 286, at 17. 450. Lisa Laplante, ‘Transitional Justice and Peace Building: Diagnosing and Addressing the Socioeconomic Roots of Violence through a Human Rights Framework’, 2 International Journal of Transitional Justice (2008) 331-355 at 346. 451. Mahmood Mamdani, ‘Reconciliation Without Justice’, 10 South African Political and Economic Monthly (1996) 1-10 at 3; Aukerman, ‘Extraordinary Evil, Ordinary Crimes’, supra note 358, at 83. 452. Roger Duthie, ‘Introduction’ in de Greiff and Roger Duthie (eds.), Transitional Justice and Development, supra note 303, 17-27 at 19; OHCHR, ‘Rule of Law Tools: Truth Commissions’, supra note 360, at 16. 453. Rubén Carranza, ‘Plunder and Pain: Should Transitional Justice Engage With Corruption and Economic Crimes?’, 2 International Journal of Transitional Justice (2008) 310-330 at 329. 454. Fletcher and Weinstein, ‘Violence and Social Repair’, supra note 9, at 580.

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highlighted the gaps between insight and transformation.455 Other commissions such as those in Argentina, Chile and El Salvador, failed to address socio-economic injustice entirely, while only three out of 34 truth commissions analysed between 1974 and 2004 expressly engaged with the narrower issue of economic crime.456 Notwithstanding the generally elevated hopes of transitional justice advocates that it could help fundamentally re-orient lives in communities and the nature of the state, surveys and interviews began to demonstrate that economic development was a greater priority for survivor populations than truth or accountability.457 Soon, scholars and practitioners in the field began to accept that structural violence had even wider implications than direct violence458 and that the implementation of structural change more necessary for a successful transition than any process of accountability.459 As Mani argued, transitional peace-building needed to incorporate a distributive dimension of justice in addition to the rectificatory and legal dimensions already (imperfectly) consolidated.460 It was no longer enough to address past wrongs – it was now argued that the roots of these wrongs must be eradicated461 and that parallel exploitations that impede development must

455. Pablo de Greiff, ‘Articulating the Links Between Transitional Justice and Development: Justice and Social Integration’ in de Greiff and Roger Duthie (eds.), Transitional Justice and Development, supra note 303, 28-75 at 36. 456. Carranza, ‘Plunder and Pain’, supra note 453, at 315. 457. For example, in a survey of 2585 adults in Uganda in 2005, less than 1% believed justice was the most pressing priority after conflict, a figure dwarfed by the need for food (33%), education (5%) and health (6%) (Phuom Phan et al., Forgotten Voices: A Population-Based Survey of Attitudes about Peace and Justice in Northern Uganda (University of California, ICTJ & Human Rights Center: Berkeley, 2005) at 25. Similarly, Corkalo et al. found that all communities in Bosnia found economic reconstruction and social justice more imperative than accountability (Dinka Corkalo et al., ‘Neighbors Again? Intercommunity Relations after Ethnic Cleansing’ in Stover and Weinstein (eds.), My Neighbor, My Enemy, supra note 368, at 143). See also Berkeley/Sarajevo Interview Study of Judges, supra note 445, especially at 126; Lambourne, ‘Transitional Justice and Peace-building’, supra note 381, at 41-44. 458. Website database homepage of African Transitional Justice Research Network, ‘Mapping Exercises, Key Findings and Challenges: Definition of Transitional Justice in Africa,’ . 459. Fletcher, Weinstein and Rowen, ‘Context, Timing and Dynamics’, supra note 231, at 205206; Mani, Beyond Retribution, supra note 286, at 126-160. The impetus is best described by the former UN High Commissioner for Human Rights who argues that transitional justice must ‘reach to, but also beyond the crimes and abuses committed during the conflict which led to the transition, into human rights violations that pre-existed the conflict and caused or contributed to it.... [thereby making] the gigantic leap that would allow justice, in its full sense, to make the contribution that it should to societies in transition.’ (Louise Arbour, ‘Economic and Social Justice for Societies in Transition’, address at New York University Law School, 25 October 2006, . 460. Mani, Beyond Retribution, supra note 286, at 4. 461. Laplante, ‘On the Indivisibility of Rights’, supra note 35, at 176.

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be addressed.462 Issues of development and inequality would become ‘the next frontier’ of transitional justice.463 This required a significant conceptual shift – the emphasis on transition was by definition short-term. With the greater focus on pursuit of justice, as opposed to mediation of transition, the emphasis of transitional justice switched significantly. Until recent years, justice had been viewed in historical terms and not as an ongoing structural reform project.464 In the 1970s transitions the traditional socialist conception of rights left those on the left at the margins of accountability for civil and political human rights abuses.465 The transitology scholarship of the 1980s conceived transition as taking place at the legal-institutional level of politics rather than as a structural socio-economic phenomenon which had been the dominant Marxist conception.466 The foundation of transitional justice occurred at a time when the prestige of political democracy and human rights were at their highest and radical socialist economics were at their lowest.467 A limited civil-political conception of transition was initially preferred to a more proactive redistributive emphasis – past abuses would be examined in terms of human rights violations and not as manifestations of structured class domination.468 Democracy was believed to make immediate attention to structural change unnecessary.469 Two decades of experience in Africa, Asia and Latin America made manifest the limitations of reliance on democratic structures and liberalism’s construction of the individual as central in creating an inclusive, stable society. Advocacy of a distributive role in transitional justice became noticeably assertive – for example, Terreblanche argued that tangible economic and social programmes were an essential precursor to reconciliation,470 while Alexander contended that transitional justice could affect development directly through reparations, restitution, and rehabilitation and indirectly through improving stability and access to justice.471 Indeed, transitional justice’s existing modalities were criticised for obscuring deeper cycles of violence and for perpetrating a myth that conflict was purely political and not ethnic or socio-economic.472

462. Mani, ‘Editorial’, supra note 169, at 258. 463. Miller, ‘Effects of Invisibility’, supra note 71, at 273. 464. Teitel, ‘New Era’, supra note 36, at 894 and 901. 465. De Brito et al, ‘Introduction’, supra note 50, at 22. 466. Arthur, ‘How “Transitions” Reshaped Human Rights’, supra note 2, at 338-339. 467. Ibid., at 340. 468. Ibid., at 341. 469. Cobián and Réategui, ‘Truth Commissions and Development’, supra note 303, at 155. 470. Sampie Terreblanche, ‘Dealing With Systematic Injustice’ in Charles Villa-Vicencio and Wilhelm Verwoerd, Looking Back, Reaching Forward: Reflections on the Truth and Reconciliation Commission in South Africa (Zed: London, 2000) 265-276. 471. Alexander, A Scoping Study of Transitional, supra note 92, at 49-53. 472. Andriu, ‘A New Discipline’, supra note 24, at 19.

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Ever before transitional justice was mainstreamed, the value of reparations to victims (in particular restitution and compensation) had been accepted in periods of political change as a form of material recompense, as acknowledgment, and as a deterrent against future abuses.473 Reparations are designed to restore the status quo ante in a post-war or post-authoritarian context where neither monetary nor symbolic redress can actually accomplish the larger goal of restoration.474 However, reparations are at best corrective rather than redistributive - budgets are typically too small to make a significant macro-economic impact,475 while the number of victims always outweighs the resources available to remedy wrongdoing.476 Asmal argues the several entire South African budgets would have been absorbed if deprivations and unemployment under apartheid were to be compensated.477 Even if sufficient reparations could be found, they are not a sustainable, long-term contribution to the redistribution and development that widely beneficial transitions require.478 Transitional governments may reasonably prefer fiscal stability, the provision of running water, education, or microfinance initiatives to reparation.479 Development no doubt responds better to structural violence than reparations, and so scholars began to devote significant attention to examining how transitional justice and development could be integrated.480 However, beyond isolated suggestions about how certain mechanisms (usually TRCs) can help asset recovery after kleptocracy,481 propose innovations such as a wealth tax482 or serve as a useful diagnostic tool for past and present inequities,483 proposals for how transitional justice can generally stimulate development or redistribution are studiously opaque. Because political democratisation is rarely followed by economic democratisation, scholarship has yet to answer the key question of 473. Neil J. Kritz, ‘The Dilemmas of Transitional Justice’ in Kritz (ed.), Transitional Justice, supra note 3, at xxvii. 474. Naomi Roht-Arriaza, ‘Reparations: Decisions and Dilemmas’, 27 Hastings International & Comparative Law Review (2004) 157-219. 475. De Greiff, ‘Articulating the Links’, supra note 455, at 39. 476. Alexander, A Scoping Study of Transitional, supra note 92, at 52. 477. Asmal, ‘Truth, Reconciliation, and Justice’, supra note 212, at 16. 478. Alexander, A Scoping Study of Transitional, supra note 92, at 52. 479. In Peru, for example, reparations often took the form of development aid, to the chagrin of victims but arguably to the betterment of communities (Laplante, ‘On the Indivisibility of Rights’, supra note 35, at 162-170). 480. Significant analysis is found in the International Journal of Transitional Justices second volume, third edition in December 2008 specifically dedicated to the subject, de Greiff and Roger Duthie (eds.), Transitional Justice and Development, supra note 303; and Gaby Oré and Felipe Gomez (eds.), Rethinking Transitions: Equality and Social Justice in Societies Emerging from Conflict (Interstentia: Cambridge: 2011). 481. Carranza, ‘Plunder and Pain’, supra note 453, at 324-326. 482. Alexander, A Scoping Study of Transitional, supra note 92, at 51 483. Laplante, ‘Diagnosing’, supra note 450, at 347.

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how to challenge elite interests in the socio-economic status quo. The emphasis on socio-economic development has been interpreted in a self-congratulatory manner as demonstrating how far transitional justice has come in surmounting its initial limitations. However, Mobekk and Kerr’s contention that the goals of transitional justice are too ambitious and outside the power of its practitioners to deliver them applies in particular to the issue of structural injustice.484 Not for the first time in the field of humanitarian action ‘[w]hat seem like improvements in the field’s ability to respond to things outside itself may only be improvements in the field’s ability to respond to its own internal divisions and contradictions.’485 Transitional justice has been largely ignored in the development practice and theory486 - while development addresses massive and anonymous policies directed at the whole population, the institutions transitional justice deploys are by necessity narrower.487 Of course any approach that promises to simultaneously embrace multiple dimensions of injustice and address the root causes of violence and deprivation is intellectually attractive. However, thus far these arguments are inspiring but lacking somewhat in detail – trials, truth commissions, purges and reparation are suited to varying degrees in varying contexts to accounting for the past, but not necessarily to undoing it. By contrast, research and practice has more successfully examined the structured gender dynamics of transitional justice which also were long disregarded.488 This re-orientation evolved from a growing realisation of the gendered nature of peace agreements negotiated by men after wars conducted by men which disregarded the needs of women and their strength in civil society.489 The masculinist emphasis in transitional justice on regime change between male dominated parties and factions and the emphasis on ‘extraordinary’ violations of civil and political rights and war crimes obscured victimisation that occurred at the intersection of gender and socio-economics.490 As cognisance was taken of (a) the inability of trials and TRCs to respond to the different experience of women in war or 484. Kerr and Mobekk, Peace & Justice, supra note 173, at 181. 485. Kennedy, Dark Sides of Virtue, supra note 43, at 24. 486. Markus Lenzen, ‘Roads Less Travelled: Conceptual Pathways (and Stumbling Blocks) for Development and Transitional Justice’ in de Greiff and Roger Duthie (eds.), Transitional Justice and Development, supra note 303, 76-109 at 77. 487. Cobián and Réategui, ‘Truth Commissions and Development’, supra note 303, at 147. 488. Susan Harris Rimmer, Gender and Transitional Justice (Routledge: London, 2011); Susanne Buckley-Zistel and Ruth Stanley, Gender in Transitional Justice (Palgrave Macmillan: London, 2011); Fionnuala Ní Aoláin, ‘Political Violence and Gender in Times of Transition’, 15 Columbia Journal of Gender and Law (2006) 829-849; and the special issue on gender and transitional justice in Volume 1(3) International Journal of Transitional Justice (December 2007). 489. Christine Bell, ‘Women and the Problems of Peace Agreements: Strategies for Change’ in Radhika Coomaraswamy and Dilrukshi Fonseka (eds.), Peace Work: Women, Armed Conflict and Negotiation (Women Unlimited: New Delhi, 2005) 99-119. 490. Nagy, ‘Critical Reflections’, supra note 173, at 285-286.

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repression and (b) of the notable rise in levels of family violence that occurs after peace negotiations, detailed initiatives began to address these issues.491

6. Stage IV: The Era of Doubt The period since the millennium has seen transitional justice become deeper, broader and more popular as practitioners and theorists explore the possibilities and limits of the field. From its initially constricted focus when it emerged as a self-conscious policy-making process, it has expanded to incorporate legal, therapeutic, peace-building and developmental goals. The increasingly holistic and complementary development of the field has helped fill gaps that became readily apparent in earlier years. Nevertheless, practitioners and theorists realise that an improved understanding and a more holistic practice does not automatically mean greater success in mediating transition or delivering justice. While the arguments for transitional justice have become stronger and the fora through which demands can be articulated have multiplied, peace-builders accept that transitional justice will still depend on the acquiescence or support of liberalising regimes which, for a number of reasons, may resent the accumulation of power and influence by independent or semi-independent bodies that can threaten or undermine the political settlements that underlie the new polity. For all the innovation and sensitisation of recent years, transitional justice remains less a technical determination than a political decision.492 As Lutz argues, while civil society can keep issues of accountability alive, it still ‘takes a certain level of government political will to decisively move forward.’493 The modalities of dealing with the past remain governed by practical constraints, political compromises and the terms of peace agreements. In peace-building doctrine, the management of expectations has now emerged as one of the transitional justice’s key challenges.494 The ceaseless development of broader conceptual frameworks has caused some disquiet. Some express fear for the coherence of transitional justice – Roht-Arriaza, for example, argues that ‘broadening the scope of what we mean by transitional justice to encompass the building of a just as well as peaceful society may make the effort so broad as to become meaningless.’495 In particular, misgivings have been expressed at the co-option of the language of transitional justice by the US 491. Christine Chinkin and Hillary Charlesworth, ‘Building Women Into Peace: The International Legal Framework’, 27 Third World Quarterly (2006) 937-957 at 946 and Colleen Duggan and Adila Abusharaf, ‘Reparation of Sexual Violence in Democratic Transitions: The Search for Gender Justice’ in Pablo de Greiff (ed.), The Handbook of Reparations (Oxford University Press, 2006) 623-649. 492. UN Secretary-General, Rule of Law and Transitional Justice Report, supra note 1, at para. 19. 493. Lutz, ‘Lessons Learned’, supra note 40, at 338. 494. OHCHR, ‘Prosecution Initiatives’, supra note 177, at 3. 495. Roht-Arriaza, ‘New Landscape’, supra note 19, at 2.

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and its partners to enable and legitimise policies in the War on Terror,496 the ‘manipulative justice’ employed in Colombia’s non-transition securing the impunity of the Bogota government497 and the aforementioned problems of justice being used by repressive governments in Cambodia, Ethiopia, Indonesia and Rwanda to gain international legitimacy through the veneer of legality.498 Given the fluidity in how transitional justice is understood, it is hard to argue that the assertions of these states, however coloured by self interest, represent an illegitimately cynical contrivance of its mechanisms – unmoored from transition and indiscriminately pursuing ever more disparate conceptions of justice, the field has left itself open to wide variations in understanding and application. Much like the language of human rights has been stretched so far the integrity of the discourse begins to fray, so too may the conception of transitional justice.499 The line between diversity and fragmentation is slim. A review of contemporary scholarship and practice reveals the field as an often contradictory body of ideas, attitudes and values to which only the title transitional justice gives coherence. This problem can only increase the more it incorporates perspectives from other disciplines. If transitional justice is an expanding kingdom, it may exemplify Montesquieu’s aphorism that empires are like the branches of a tree that sap strength from the trunk.500 The spectre of irreconcilable goals and unacknowledged trade-offs is one that is increasingly recognised.501

6.1 Great Expectations and the Shadows of Doubt However, the greatest cause for doubt has resulted as a predictable reaction to the eulogistic treatment of transitional justice since it was mainstreamed. The various mechanisms, alone or in combination, are presumed to accomplish relatively nebulous aspirations like accountability, heal victims and restore their dignity, stabilise the liberalising polity, establish the rule of law, deter future political violence, contain and stigmatise perpetrators and organisers of crime, educate society about a universally acceptable collective memory, promote reconciliation and stimulate economic recovery. There is a tendency in human rights-based policymaking to ‘enchant’ certain tools like transitional justice, to treat establishment 496. Christine Bell, Colm Campbell and Fionnuala Ní Aoláin, ‘The Battle for Transitional Justice: Hegemony, Iraq and International Law’ in Kieran McEvoy, John Morrison and Gordon Anthony (eds.), Judges, Transition and Human Rights Cultures: Essays in Honour of Stephen Livingstone (Oxford University Press, 2007) 147-165; Teitel, ‘Genealogy’, supra note 20. 497. Rodrigo Uprimny & Maria Paula Saffron, Uses and Abuses of Transitional Justice Discourse in Colombia (International Institute of Peace Research Institute: Oslo, 2007). 498. Snyder and Vinjamuri, ‘Trials and Errors’, supra note 82, at 25. 499. McEvoy, ‘Beyond Legalism’, supra note 7, at 431. 500. Montesquieu, Persian Letters (1721) (Indo-European Publishing: Los Angeles, 2010) Letter 121, at 123. 501. Leebaw, ‘Irreconcilable Goals’, supra note 86.

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of mechanisms as surrogates for outcomes and to mistake good intentions for good results at the expense of a pragmatic assessment of outcomes.502 Because transitional justice is generally presented ‘in very idealistic terms without clearly defined goals,’ its virtuous effects are more easily presumed than proven.503 One sees in the literature and reports an emotional commitment to transitional justice that generally eschews doubts about its overall efficacy even where isolated shortcomings are accepted.504 Policy has hitherto proceeded less from analysis to conclusions than from commitments to action. Some argue that ‘the commitment to advocacy has come at the expense of progress in empirical research’ – the benefits of certain mechanisms are assumed instead treated as empirical propositions to be proven rigorously.505 Others fear that the consequent ‘overselling’ of transitional justice can encourage unrealisable public expectations of what it can achieve, ultimately causing unfair assessments that the mechanisms employed have failed.506 As Olsen, Payne and Reiter argue: ‘Governments, societies, and international actors have high expectations for transitional justice – so high, in fact, that it seems to be overloaded with goals ... Regardless of how comprehensive its programs, transitional justice could not possibly fulfil all these goals.’507

Emphasising the potential of the field to achieve a wide range of socially beneficial achievements sets a very high bar, opens it up to empirical scrutiny and may ultimately undermine the support for justice. In contrast to the days when successful mediation of authoritarianism to peace marked the zenith of ambition, there is a discernible lack of consensus over what success actually is, which has been exacerbated by the determination to reconceptualise the goals of transitional justice in explicitly apolitical terms of restoration, healing, equality and emotional wellbeing. For example, Leebaw describes the three main justifications as ‘1) to counter denial and promote accountability; 2) to expand dialogue and open political space to previously marginalised or silenced people; and 3) to alleviate volatile emotions associated with trauma and the desire for revenge’.508 Laudable as these aspirations are, they do not admit of easy (or any) factual provability, especially when assessed at a collective level. Reconciliation or rehabilitation cannot be measured in quantitative ways like disarmament, AIDS, education or levels of sexual violence can. This is not to 502. Kennedy, Dark Sides of Virtue, supra note 43, at 115, 116, 143. 503. Van der Merwe, ‘Delivering Justice During Transition’, supra note 184, at 121. 504. Jon Elster, ‘Emotions and Transitional Justice’, symposium Emotions that matter (University of Tennessee, 6-7 March, 2003). 505. Vinjamuri and Snyder, ‘Advocacy and Scholarship’, supra note 68, at 359. 506. McEvoy, ‘Beyond Legalism’, supra note 7, at 426; Kerr and Mobekk, Peace & Justice, supra note 173, at 181. 507. Olsen, Payne and Reiter, Transitional Justice in Balance, supra note 3, at 131. 508. Leebaw, ‘Irreconcilable Goals’, supra note 86, at 98.

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argue that theoretical assumptions are dubious, but plausible inferences more so than solid conclusions are the empirical coin of the realm. Furthermore, while a truth commission can define the terms of its own success to a greater extent than trials or traditional justice mechanisms which have pre-existing templates and expectations, all transitional justice mechanisms suffer from discordant and amorphous definitions of their ultimate goals. One group of scholars attempting to establish a general methodology for comprehending transitional justice’s impact acknowledge that complex social phenomena like reconciliation and legitimacy are difficult, and perhaps even impossible to accurately quantify.509 ‘Justice,’ ‘accountability,’ ‘reconciliation,’ ‘truth’ and ‘restoration’ will mean wildly different things to different people. This is something experienced in all social science research, but it seems particularly relevant in transitional justice. For some, truth is a form of accountability, for others revelation of the truth makes lack of punishment all the more deplorable. For some, criminal punishment means the assumption by the state of the individual’s experience, for others it is the vindication of her status as a citizen. For some, reconciliation is an intimate, interpersonal phenomenon, for others it is more important to be reconciled with the state in which one must live than a neighbour who can be ignored. If the expansion of transitional justice’s goals and mechanisms had only created internal doubt among scholars, there would be less cause for concern. However, pressure from donors who have funded transitional justice thus far has forced the movement to measure the output of the various mechanisms employed.510 Of particular concern is the danger that the disavowal of merely single- or dualmechanism approaches has made transitional justice less ‘projectizable’ than it was in the past – time-bound mechanisms concerned with mediating a defined transition that yield measurable results like commission reports, prison sentences and job dismissals are easier to invest in than potentially never-ending, unquantifiable processes of restoration, healing and development.511 This becomes all the more worrying when one remembers that the success of transitional justice is dependent on historical, institutional, social and political legacies and must compete with on-going peace-building processes like democratisation, demobilisation, development, rule of law reconstruction and land reform that donors also fund. Given that as much as 5% of development aid to a country can take the form of assistance to transitional justice initiatives,512 it is necessary to question the extent to which it may lessen the availability of funding for other social reconstruction projects. For example, Penrose argues that the millions invested 509. Oskar Thoms, James Ron and Roland Paris, ‘State-Level Effects of Transitional Justice: What Do We Know?’, 4 International Journal of Transitional Justice (2010) 1-26 at 18. 510. Bell, ‘Field’, supra note 16, at 11; Ryngaert, ‘Introduction’, supra note 252, at xvii. 511. Lenzen, ‘Roads Less Travelled’, supra note 486, at 94. 512. For example, it constituted 5% in both Guatemala and Rwanda (Duthie, ‘Introduction’, supra note 452, at 21).

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in the ICTY might have been better spent on refugee assistance, 513 Hayden argues the billion-plus dollars spent on the tribunal has impaired reconstruction efforts,514 while Oomen contends that aid to the ICTR has come at the expense of funding for agriculture and education.515 In non-fiscal terms, there is also a significant expenditure of energy and political capital in perennially contentious transitional accountability. Though these potentially competing projects have made necessary the need to assess transitional justice more carefully, they also constitute the types of autonomous vicissitudes that inevitably complicate macrolevel assessments of the impact of justice mechanisms, and possibly overshadow positive outcomes. As Lutz put it: ‘While we might believe that transitional justice processes contribute to the solidification of democratic civil society institutions, there are so many other independent variables that are part of any transition process that it is hard to isolate what role accountability measures played.’516

The persistent enchantment of transitional justice has exacerbated disappointment over the performance of its assorted mechanisms. The regret over the limitations of the first wave of transitional justice in South America is visible in the ongoing process of revising and overturning the initial amnesties incorporated by trials and truth commissions, most notably the Pinochet trials517 and the widespread annulment of amnesty laws after the Inter-American Court of Human Rights’ decision in Barrios Altos.518 Even in the stronger mechanisms later in the 1990s which enjoyed greater freedom, expertise and resources, disappointment is palpable. As noted above, issues of legitimacy and efficiency hamstrung the ad hoc tribunals. The ICTY has generated some accountability, but has done little to promote reconciliation, to deter atrocities (for example Srebrenica and Kosovo occurred after its formation) or generate a shared understanding of the conflict.519 Similarly, the ICTR has done little to prevent atrocities committed by and against Rwandans, to reconcile Hutu with Tutsi, to inculcate the rule of law or make a significant 513. Mary Margaret Penrose, ‘Lest We Fail: The Importance of Enforcement in International Criminal Law’, 15 American University International Law Review (1999) 321-394, at 340. 514. Robert Hayden, “Justice Presumed and Assistance Denied: The Yugoslav Tribunal as Obstruction to Economic Recovery (Unpublished paper, cited in Patrice McMahon and David Forsythe, ‘The ICTY’s Impact on Serbia: Judicial Romanticism meets Network Politics’, 30 Human Rights Quarterly (2008) 434-435 at 412. 515. Barbara Oomen, ‘Donor-Driven Justice and its Discontents: The Case of Rwanda’, 26 Development and Change (2005) 887-910 at 895. 516. Lutz, ‘Lessons Learned’, supra note 40, at 339. 517. Rebecca Evans, ‘Pinochet in London – Pinochet in Chile: International and Domestic Politics in Human Rights Policy’, 28 Human Rights Quarterly (2006) 207-244. 518. Laplante, ‘Outlawing Amnesty’, supra note 156, at 974-977 519. Aram A. Schvey, ‘Striving for Accountability in the former Yugoslavia’ in Stromseth (ed.), Accountability for Atrocities, supra note 395, at 39-86.

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contribution to domestic capacity to try genocidal crimes.520 Truth commissions since (and including) the SATRC have been criticised for failure to create common narratives of the past, retraumatisation of victims, lack of impact on local power relationships and the failure to pursue criminal justice.521 Some disillusionment is the product of the sheer fact of failure of peace and democracy to take root in some states, notwithstanding extensive and sophisticated efforts at transitional justice.522 Perhaps more worrying is the fact that socio-political outcomes are not substantially different in states that engage in transitional justice compared with those that do not, or employed less mechanisms.523 As early as 2000, scholars warned that the commonly expected correlation between implementation of transitional justice policies and the quality of democracy had not been found. Democracy was no weaker in Spain, Hungary and Uruguay where accountability was forgone than it was in Argentina or Portugal where trials and purges were undertaken.524 Political liberalisation in Hungary, which renounced transitional justice, progressed no quicker than it did in the neighbouring Czech Republic, which took the most assertive decommunisation measures.525 For example, Kritz argues that trials coupled with a truth commission in Argentina did not yield significantly better outcomes than in Chile which pursued the latter but eschewed the former until long after transition stabilised.526 Total recall in South Africa has not generated a markedly more successful polity that amnesia did in Mozambique, let alone Spain. Amnesty in Guatemala deterred political violence no less than trial did in Rwanda.527 As de Greiff notes, no state can legitimately claim great success in transitional justice – accountability, truth, reparations and reform always fall far short of expectations owing to the scale of abuse.528 The preventive potential of criminal trial has come under sustained attack,529 as has its ability to ground the domes520. Alvarez, ‘Crimes of State/Crimes of Hate’, supra note 447, Jason Strain and Elizabeth Keyes, ‘Accountability in the Aftermath of Rwanda’s Genocide’ in Stromseth (ed.), Accountability for Atrocities, ibid., at 87-134. 521. Roht-Arriaza, ‘New Landscape’, supra note 19, at 4-5. For particularly critical assessments of TRCs see Wilson, The Politics of Truth and Reconciliation in South Africa, supra note 299; Eric Wiebelhaus Brahm, Truth Commissions and Transitional Societies (Routledge; London, New York, 2010); Joanna R. Quinn, The Politics of Acknowledgment: Truth Commissions in Uganda and Haiti (UBC Press, 2010). 522. Bell, ‘Field’, supra note 16, at 11. 523. Fletcher, Weinstein and Rowen, ‘Context, Timing and Dynamics’, supra note 231, at 205. 524. De Brito et al, ‘Conclusions’, supra note 347, at 312-313. 525. Carmen González-Enriquez, ‘De-communization and Political Justice in Central and Eastern Europe’ in De Brito et al (eds.), The Politics of Memory, supra note 4, 218-247 at 246. 526. Kritz, ‘Policy Implications’, supra note 23, at 15. 527. Mendeloff, ‘Curb the Enthusiasm’, supra note 8, at 367. 528. De Greiff, ‘Theorizing Transitional Justice’, supra note 92, at 5. 529. Tallgren, ‘Sensibility and Sense’, supra note 38; Kenneth A Rodman, ‘Darfur and the Limits of Legal Deterrence’, 30 Human Rights Quarterly (2008) 529-560; Julian Ku and Jide Nzelibe

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tic rule of law.530 The biomedical model of trauma and therapeutic language used to describe restorative processes of justice have also attracted opprobrium for their simplistic views of how psychotherapy works,531 while national truthtelling processes have been criticised for their assumption that societies can suffer post-traumatic disorders like individuals.532 Lustration can rarely reconcile the individualised treatment that would make it fair with the need for massive scope to undue inherently wide scale of bureaucratic evil,533 while traditional restorative justice mechanisms risk entrenching existing hierarchies instead of altering damaging power relations.534

6.2 Towards Greater Empirical Scrutiny In response to these doubts, scholars and practitioners began to acknowledge that empirical assessment of transitional justice’s impact was either non-existent or insufficiently dynamic to justify the ever-larger claims about the potential of its mechanisms. Because so many of the early debates about transitional justice took the form of partisan advocacy, prospective hypotheses about likely outcomes dominated the literature at the expense of retrospective assessments of what generally had or had not worked. As early as 2002, scholars were beginning to note the paucity of studies systematically examining the correlation between transitional justice and social reconstruction,535 while in November of that year the first Transitional Justice Research Conference took place in Stellenbosch, South Africa.536 Until recently, scholarship had primarily been based on single or dual mechanism case studies and comparative qualitative case studies of a limited number of states, which gave disproportionate emphasis to certain transitions or transition types conducive to study and made generally applicable policy conclusions difficult to elaborate.537 Findings across states were at times observably contradictory. The literature was variously criticised for wishful thinking,538 its

‘Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities?’, 84 Washington University Law Review (2006) 777-833. 530. McAuliffe, ‘Transitional Justice and the Rule of Law’, supra note 385. 531. Fletcher and Weinstein, ‘Violence and Social Repair’, supra note 9, at 593-594. 532. Mendeloff, ‘Curb the Enthusiasm’, supra note 8, at 364. 533. Osiel, ‘Why Prosecute?’, supra note 28, at 133-134. 534. EwaWojkowska, ‘Doing Justice: How Informal Systems Can Contribute’ (UNDP Oslo Governance Centre, 2006), at 20, 21 and 52. 535. Fletcher and Weinstein, ‘Violence and Social Repair’, supra note 9, at 585. 536. Victoria Baxter, ‘Empirical Research Methodologies of Transitional Justice Mechanisms’, Conference Report (Stellenbosch, South Africa, 18-20 November 2002). 537. Olsen, Payne and Reiter, Transitional Justice in Balance, supra note 3, at 25-26. 538. Ibid., at 25.

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reliance on anecdote and hypothesis,539 and analogy.540 Arguments that in states that forego criminal punishment ‘the banished ghost of the victims’ thirst for justice returns years later to haunt these societies, reopening old wounds thought to have been healed’ display a loose empiricism and emotionalism that were increasingly deemed inappropriate.541 A central problem identified in some of the more sceptical literature is that beliefs about transitional justice are based more on faith than evidence or logic.542 Policy is often determined more on instinctual gut sense than research – as Kritz argues, ‘a country has a transition and everyone immediately says “we have to have a truth commission,” without any clear understanding of why or of what such endeavours are about.’543 Like ongoing sloganeering of ‘no peace without justice’, it represents an almost theological belief in the efficacy of transitional justice over a pragmatic assessment of context, cause and effect. Tallgren, for example, argues that the belief among proponents of international criminal justice in the deterrent potential of international tribunals ‘comes close to a religious exercise of hope and perhaps deception.’544 In response to these criticisms, there has been a laudable attempt to clarify the causal relationships (if any) between individual mechanisms and general ends involving the use of social science methodologies and hard data. A sizeable literature has emerged on how to assess transitional justice’s impact.545 The expectation is that this scholarship can chip away at falsity and overly ambitious claims. Nevertheless, even the most advanced study is at the stage of enunciating difficulties in researching transitional justice, as opposed to 539. Crocker, ‘Punishment, Reconciliation and Democratic Deliberation’, supra note 289, at 541. 540. Eric Brahm, ‘The Impact of Transitional Justice in Post-Conflict Environments’, Program on State and Security (Ralph Bunche Institute for International Studies, The City University of New York: New York, 2008) at 3. 541. Kingsley Moghalu, quoted in Clark, ‘The Three Rs’, supra note 358, at 333. See also Oskar Thoms, James Ron and Roland Paris, ‘The Effects of Transitional Justice Mechanisms: A Summary of Empirical Research Findings and Implications for Analysts and Practitioners’ (Center for International Policy Studies Working Paper, 2008), at 5. 542. Mendeloff, ‘Curb the Enthusiasm’, supra note 8, at 356; Thoms, Ron and Paris, ‘What Do We Know?’, supra note 509, at 329-331. 543. Kritz, ‘Policy Implications’, supra note 23, at 17. 544. Tallgren, ‘Sensibility and Sense’, supra note 38, at 561 (Preamble). 545. Most notably the International Journal of Transitional Justice’s volume 4, issue 4 special issue on methodologies, van der Merwe, Baxter and Chapman (eds.), Assessing the Impact, supra note 23; Thoms, Ron and Paris, ‘What Do We Know?’, supra note 509; Tove Grete Lie, Helga Malmin Binningbo and Scott Gates, ‘Post-Conflict Justice and Sustainable Peace’, Centre for the Study of Civil War, PRIO and Norwegian University of Science & Technology (NTNU), Post-Conflict Transitions Working Papers, Working Paper 5 (2007), ; Erik Melander, ‘Justice or Peace? A Statistical Study of the Relationship Between Amnesties and Durable Peace’, JAD-PbP Working Paper Series (2009), .

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outlining a best practice for analysis.546 Humility may become the watchword, not only about how much we can ultimately know about transitional justice’s interaction with fraught social worlds, but also about the claims made. The disillusionment that results from unrealistic promotion of transitional justice’s potential is borne out by the one area where empirical, qualitative research has been successfully undertaken, namely in surveys of survivor populations during or after transitional justice. Population-based studies of transitional justice processes consistently yield mixed, hostile or ambivalent responses, though it should be pointed out that most transitional justice processes have not been surveyed extensively, or at all. Truth commissions have struggled for popular acceptance, most notably the SATRC. For example, in 1996 and 1998, 60%-65% of South Africans believed that revealing the truth about the past made people more angry and worsened feelings between the races.547 More recent surveys demonstrate a wide disparity in attitude to the process between the beneficiaries of apartheid and those who suffered most under it.548 Trial processes have been assessed more frequently but no more happily. Ironside observed that the majority of Rwandans ‘know little of trials in Arusha except that the ICTR ….. is a foreign and removed body alien in procedure, whose slow pace of trials is proof of UN inefficiency, or worse, indifference to Rwandan needs.’549 IBUKA, the Rwandan genocide survivors group, criticised the Tribunal and even suspended cooperation with it.550 A very selective satisfaction was evident at the ICTY: ‘Instead of being “convinced” that war crimes were perpetrated in their name by the opinions issued by the Tribunal, participants felt free to disregard any aspect of the judicial “record” that did not conform to their perspective on the “truth” of what happened during the war. Contrary to the predictions of transitional justice theorists, the historical record produced by the ICTY is not engendering a sense of contrition or shame among members of national groups whose forces committed atrocities. Rather, the record is a useful foil in the hands of political propagandists to solidify a sense that their national group is misunderstood or unacknowledged victim of the conflict.’551

546. Hugo van der Merwe, Victoria Baxter and Audrey R. Chapman, ‘Introduction’ in van der Merwe, Baxter and Chapman (eds.), Assessing the Impact, supra note 23, at 7. 547. Gunnar Theissen, ‘Object of Trust and Hatred: Public Attitudes Toward the TRC’ in Chapman and van der Merwe (eds.) Did the TRC Deliver?, supra note 263, 191-210 at 208. 548. David Backer, ‘Watching a Bargain Unravel: A Panel Study of Victims’ Attitudes about Transitional Justice in Cape Town, South Africa’, 4 International Journal of Transitional Justice (2010) 443-456. 549. Pernille Ironside, ‘Rwandan Gacaca: Seeking Alternative Means to Justice, Peace and Reconciliation’, 15 New York International Law Review (2002) 1-26 at 31. 550. Higonnet, ‘Restructuring Hybrid Courts’, supra note 445, at 418. 551. Fletcher and Weinstein, ‘Violence and Social Repair’, supra note 9, citing Interview Study of Bosnian Judges and Prosecutors, supra note 445.

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Similar ambivalence is evident in the DR Congo and Uganda about ICC proceedings. While the ICC is the main driver of accountability in the DR Congo, only a quarter see it as the most appropriate forum for justice.552 In the latter, only 43% of respondents surveyed believed the ICC had helped the general situation in northern Uganda, while 40% felt it had no effect, though only 10% believed that the Court hindered the situation.553 This disappointment applies equally to more local processes. Studies of the gacaca process in Rwanda reveal disillusionment with the lack of appropriate penalties and a lack of faith in the possibility of justice, which were manifested in declining participation over time.554 By contrast, in Cambodia over the 2008 to 2010 period, perceptions of the Extraordinary Chambers have generally remained positive, with significant numbers believing the Khmer Rouge trials will have positive impacts on reconciliation, trust and justice.555 Nevertheless, the overall impression one gets from a review of popular attitudes to transitional justice, in particular survivors, is a perception of what Mani describes ‘hollowness.’556 Though she points out that the lack of social justice is a contributing factor, she also identified the ‘overcharging’ of existing mechanisms and unrealistic public expectations as reasons for disenchantment.557 It is noticeable that many of the foremost advocates of transitional justice have significantly moderated their optimism over time. For example, one can see a clear diminution of faith on the part of Jamie Malamud-Goti, one of the two architects of the trials of the military juntas that ruled Argentina between 1976 and 1983, between the period of accountability and its aftermath. While initially vociferous in support of the trial,558 over time he began to accept that selective prosecutions of the military leadership allowed vast sections of society to exculpate themselves from guilt at the expense of much needed social reform.559 While Desmond Tutu initially juxtaposed truth as a form of healing with trial as

552. Patrick Vinck et al, Living with Fear: A Population-Based Survey on Attitudes about Peace, Justice and Social Reconstruction in Eastern Congo (University of California, Human Rights Center: Berkeley, 2008) at 46. 553. Phuong Pham & Patrick Vinck, Transitioning to Peace: A Population-Based Survey on Attitudes About Social Reconstruction and Justice in Northern Uganda (University of California, Human Rights Center: Berkeley, 2010) at 43. 554. Penal Reform Institute, ‘Integrated Report on Gacaca Research and Monitoring: Pilot Phase January 2002 – December 2004’, . 555. Phuong Pham et al, A Population Based Survey on Knowledge and Perception of Justice and the Extraordinary Chambers in the Courts of Cambodia (University of California, Human Rights Center: Berkeley, 2011) at 29. 556. Mani, ‘Editorial’, supra note 169, at 255. 557. Ibid. 558. Malamud-Goti, supra note 405, at 1-16. 559. Jaime Malamud-Goti, Game Without End: State Terror and the Politics of Justice (University of Oklahoma Press, 1996).

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a counter-productive form of vengeance,560 ten years later he acknowledged that the lack of prosecutions damaged the process.561 If, as it seems in some quarters, that transitional justice is enduring something of a hangover after twenty years of euphoria and expansion, the renewed emphasis on testing the claims and counter-claims about transitional justice may serve to serve a more grounded, realistic and modest field of theory and praxis. If it is to do so, however, it will need to beware of falling into a trap that much human rights-based research has, namely that the desire to promote institutions or react to atrocity results in research explicitly or implicitly designed to reach conclusions that support the researcher’s activist commitments. A recent survey of human rights research methodologies by Coomans, Grunfeld and Kamminga yielded the following conclusion: ‘Our hypothesis is that human rights scholars tend to passionately believe that human rights are positive. Many of the scholars are activists or former activists in the field of human rights. Although seldom stated, the explicit aim of their research is to contribute to improved respect for human rights standards…. In accordance with these terms, there is little room for research challenging the conventional wisdom that such systems be applauded.’562

Furthermore, Follesdal argues that in the context of human rights the norms in question are so fundamental and their preservation so urgent that the commitment to them ‘may dull an appropriately sceptical attitude’ to any assessment of the area.563 This risk is exacerbated in transitional justice by the increased scepticism towards the field, which may inculcate a defensiveness in the research. The tendency of advocates to have one foot in academia and another in practice runs the risk that the former may be geared towards justifying the latter. As the debate over the existence or otherwise of the justice cascade outlined in Chapter 2 suggested, even sophisticated quantitative methods can yield unclear results given the difficulty of separating correlation from causation in transitional justice that afflicts all social science.

7. Conclusion This article has used a historical treatment of transitional justice in the years since its inception in the late 1980s to explain the lack of consonance between 560. Minow, Between Vengeance and Forgiveness, supra note 98, at 127. 561. Kerr and Mobekk, Peace & Justice, supra note 173, at 15-16. 562. Fons Coomans, Fred Grunfeld and Menno Kamminga, ‘Methods of Human Rights Research: A Primer’, 32 Human Rights Quarterly (2010) 1085-1090. 563. Andreas Follesdal, ‘Methods of Philosophical Research on Human Rights’ in Fons Coomans, Fred Grunfeld and Menno Kamminga (eds.), Methods of Human Rights Research (Intersentia: Antwerp, 2009) at 233.

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its popularity and promise on the one hand, and its mixed record in practice and the increasing doubt about its efficacy on the other. The dramatic expansion of transitional justice as a series of ideas and practices may suggest that advocates have succeeded in establishing the phenomenon as a firm principle of policy in peace-building, democratisation and international relations. However, it is equally possible to point to enduring influence of power politics and statistical evidence that the improvement in the legitimacy and competence of transitional justice mechanisms has not seen a commensurate increase in their frequency or effectiveness. Advocates can point to the fact that gender, development, localisation, economics, justice and security sector reform have augmented earlier law and justice-oriented policies, but the obvious retort is that these solutions merely compensate for the failure of earlier, more limited approaches, which make the pursuit of justice, reconciliation, equity, redistribution and democracy hopelessly utopian. However, the rival grand narratives of idealism and realism have limited value as a guide to understanding transitional justice’s puzzling development. There is plentiful evidence of both in action, but neither had free rein. The contention by advocates that transitional justice has evolved in an undeniably progressive and beneficial manner or counter-arguments to the effect that transitional justice is over-rated and unduly utopian do little justice to the tantalisingly ambiguous reality that both the soft power of ideas and the harder power of transitional politics have seen their influence on transitional justice wax and wane in different times and places. In Stages I and II when transitional justice established and popularised itself, political realities exerted far more influence than the arguments of advocates, but within these constraints there was a remarkable willingness to rationalise the limitations extant, to strain at the pragmatic leash imposed by elites and maximise the opportunities presented. The unwillingness of transitional governments to countenance trial spurred the reification of truth as a paramount value and motivated a turn to the hitherto neglected field of international law. The mid-1990s have been understood as a clash of ideas between truth and justice that resulted in an amicable compromise, but power politics arguably had a greater impact on the formation of the dominant institutions of the period in South Africa and the Balkans which have proven so influential ever since. Security Council politics impacted more on the establishment of the ad hoc tribunals than advocacy, but within these limitations an extremely powerful court emerged through the efforts of practitioners, NGOs and scholars which established a template for the permanent globalisation of transitional criminal justice in the ICC, which nevertheless shows in Articles 16, 17 and (to a lesser extent) 51 the enduring relevance of transitional realpolitik. Truth and reconciliation commissions since the SATRC have mixed institutional innovation with political weakness and

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ineffectiveness, but have benefited from a deliberate policy of emphasising their essentially unprovable restorative and healing functions. In the present day, the assertive and expansionary era ‘beyond truth versus justice’, transitional justice has become normalised and sees no threshold limit to its relevant sphere of influence. This boldness above all else has spurred a present era of doubt where the efficacy of transitional justice is called into question. Once more we see the interaction of idealism and realism - critics may castigate modern transitional justice as the pursuit of impossibly ambitious goals in impossible contexts, while advocates might counter that they are instead engaged in attaining diverse, context-specific heterotopias these political limitations still permit. While transitional justice is undoubtedly dynamic, it would be mistaken to understand it as evolving in the simplified Darwinian sense of progressive fitness towards an ultimate goal or goals - viewed historically, it appears to have instead developed in a more transformative, Gouldian sense of filling available ecological niches. It is likely that the same essential ambiguity will determine transitional justice’s future. Subject to political pressures from within and without the burgeoning community of advocates, it will continue to mix political pragmatism on the ground with enthusiasm on paper, though one hopes the present era of constructive scepticism encourages better arguments and better practice.

On the Primacy of the European Convention of Human Rights over Other International Treaties Martin Schaub* AbstrAct: States occasionally conclude treaties without regard to their prior engagements towards third states, which may result in the assumption of incompatible obligations. Human rights treaties, such as the ECHR, are particularly likely to give rise to such conflicts, as their wide scope of application can bring them in tension with treaties on almost any subject matter. National and international case law shows that the ECHR is usually given precedence in such cases. This practice cannot be rationalized by the chronological order of the treaties or the principle of lex specialis, because these criteria are either inapplicable to conflicts of this kind, or else have been deemed irrelevant by the courts or authorities involved. Neither can it be explained by reference to the Vienna Convention on the Law of Treaties, which does not specify how such conflicts are to be resolved. Instead, the reason of the ECHR’s de facto primacy appears to lie in its character as a major human rights treaty. However, because the practice is neither sufficiently consistent nor supported by the necessary opinio iuris, it can not be assumed that the priority to the ECHR has yet emerged as a rule of customary law. This leaves it to the states caught between conflicting obligations to decide for themselves which treaty to fulfil, with the consequence of incurring state responsibility for breach of the other. The resulting risk of legal uncertainty and international conflicts, however, should not be overrated. States have, in the past, proven to be capable of finding solutions to accommodate their interests beyond the narrow framework of clear-cut priority rules. In addition, it can be expected that non-human rights treaties will increasingly include provisions bringing them in line with human rights obligations, which further reduces the potential for conflicts in the first place. Keywords: treaty conflicts; human rights; european convention on human rights; priority; vienna convention on the law of treaties

*

Dr. iur., University of Zurich; currently Visiting Fellow, European University Institute, Florence. The author would like to thank Daniel Halberstam, Jan Klabbers, Frauke Lachenmann, Federica Paddeu, and Detlev Vagts for their valuable comments.

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1. Introduction This study examines whether from the viewpoint of public international law, the European Convention on Human Rights (ECHR) enjoys primacy over other international treaties in cases of conflict. It focuses on conflicts with bilateral treaties concluded by ECHR parties with third states, thus excluding conflicts with other multilateral treaties, with inter se agreements between some of the ECHR parties themselves1, or with other agreements between all the ECHR parties2. In other words, it deals with treaty conflicts of the ABC/AD type, where a multilateral treaty between states A, B and C conflicts with a bilateral treaty between states A and D. The article starts with a description of the practice of states and ECHR organs in pertinent cases (part 2), which will show that in the few conflicts that have arisen so far, the ECHR has usually been given priority. Part 3 analyses general treaty conflict rules under international law which might underlie and justify this practice. It begins with an excursus on conflict rules for treaties with identical parties (AB/AB type), showing that in these situations, the will of the parties as to the relationship of the treaties must be determinative (‘voluntarist principle’); the lex posterior and lex specialis principles only serve to determine this will (section 3.2.). The following sections of part 3 examine the possible priority rules for conflicts of the ABC/AD type. Section 3.3.1 examines the temporal aspect, i.e., whether the ECHR might have prevailed over the other treaties because it was older or newer (lex prior/posterior). It argues that while there is support for a primacy of the lex prior, it does not yet have the quality of customary international law. In any case, this rule could not explain the practice described, where the ECHR was granted priority regardless of whether it was older or newer. Section 3.3.2 then examines the lex specialis rule, which would grant precedence to the more ‘special’ treaty. It concludes that this rule has to be rejected generally for conflicts of the ABC/AD type, and especially for conflicts involving human rights treaties, which cannot be considered more or less ‘special’ than other, ‘non-human rights’ treaties. Subsequently, section 3.3.3 explores whether certain types of multilateral treaties – like the ECHR – as such might prevail over other kinds of treaties, but there is little support for such a rule as well. Other possible priority rules, examined in section 3.3.4, are either not pertinent to the conflicts 1.

2.

Inter se agreements are governed by Art. 41 of the Vienna Convention on the Law of Treaties (VCLT), 23 May 1969, in force 27 January 1980, 1155 UNTS 331. This provision would almost inevitably prohibit agreements aiming to reduce or having the effect of reducing the scope of protection of human rights treaties. See Art. 41(1)(b) VCLT and Christoph Gusy, ‘Die neuere Entwicklung des völkerrechtlichen Auslieferungsrechts’, Bayerische Verwaltungsblätter (1980) 10–15 at 14. However, such conflicts between treaties with identical parties (ABC/ABC type of conflicts) will be dealt with in an excursus in section 3.2. below.

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at hand (priority of status treaties), or clearly not part of international law (priority of erga omnes treaties). Section 3.3.5 then examines whether human rights treaties as such prevail over other conventional obligations. It finds that while state practice (especially the instances described in part 2) provides some support for an emerging rule to that effect, it can not yet be regarded as customary law. Besides, it is questionable whether such a hard rule would be desirable at all if it did not allow for exceptions.

2. Practice Regarding Conflicts Between the ECHR and Other Treaties 2.1. State Practice 2.1.1. General Remarks Situations in which states were subject to conflicting obligations under the ECHR and other treaties have arisen only very infrequently. It appears that states succeed well in avoiding or concealing such clashes, either by not concluding incompatible treaties in the first place, by finding diplomatic solutions3, by gaining the tacit acceptance of the parties to the prior treaty4, or by glossing over the conflict with a ‘harmonizing interpretation’, ostensibly allowing the application of both of the treaties5. Two examples of this latter solution (the French ‘repudiation’ cases and the European Court of Justice’s Matthews judgment on the right to vote of residents of Gibraltar) will be discussed later in this section; they also illustrate 3.

4. 5.

See Christopher J. Borgen, ‘Resolving Treaty Conflicts’, 37 George Washington International Law Review (2005) 573–648 at 605–06; Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, finalized by Martti Koskenniemi, UN Doc. A/CN.4/L.682 (13 April 2006) at 27, para. 41, and 118, para. 227. See Yearbook of the International Law Commission (YILC) 1963 I, at 202, para. 83 (Antonio de Luna) (‘States often concluded treaties which conflicted with prior treaty obligations. [I]t was found that in practice the States not parties to the later treaty were generally tolerant’). On harmonizing interpretation, see Wilfred Jenks, ‘The Conflict of Law-Making Treaties’, 30 British Year Book of International Law (1953) 401–53 at 428–29; Joost Pauwelyn, Conflict of Norms in Public International Law. How WTO Law Relates to other Rules of International Law (Cambridge University Press, 2004) at 240–44; Edwin Vanderbruggen, Above and Beyond the Treaty (APTC: Bangkok, 2004) at 70; Manfred Zuleeg, ‘Vertragskonkurrenz im Völkerrecht (Teil I)’, 20 German Yearbook of International Law (1977) 246–76 at 271–74. – Frédéric Vanneste, ‘Droit international général et droit international des droits de l’homme: l’apport de la Cour européenne des droits de l’homme’, Revue trimestrielle des droits de l’homme (2011) 807–38 at 819, and Ineta Ziemele, ‘Case Law of the European Court of Human Rights and Integrity of International Law’, in Rosario Huesa Vinaixa and Karel Wellens (eds), L’influence des sources sur l’unité et la fragmentation du droit international (Bruylant: Brussels, 2006) 187–210 at 205, point out that the European Court of Human Rights regularly resorts to this approach in order to reconcile the ECHR with general international (treaty and customary) law.

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that the line between ‘harmonizing interpretation’ and the granting of a priority can be blurred. 2.1.2. Netherlands The only case of a ‘true’ conflict which was also acknowledged as such by the authorities appears to be the Dutch Short case6. Short was an American sergeant stationed in the Netherlands who had murdered his wife. The United States demanded his transfer under the NATO Status of Forces Agreement (NATO SOFA)7. The Dutch Supreme Court found that since Short faced the death penalty in the United States, the Netherlands would violate Article 1 of the Sixth Protocol to the ECHR by handing him over;8 on the other hand, it would breach its obligations under the NATO SOFA if it refused to do so. For the court, there was no ‘order of ranking’ between the treaties which could resolve this dilemma. Instead, it found it necessary to weigh the interests involved, which ‘[i]n view of the great importance which must be attributed to the right not to suffer the death penalty’, ‘inevitably’ resulted in a decision in Short’s favour.9 In the end, Short was nonetheless released to the US authorities, after they had guaranteed that he would be charged for a non-capital crime only.10 This guarantee should not be understood as an acknowledgment by the US of the priority of the ECHR, or as a waiver of its treaty rights; instead, it appears that the American prosecutors simply realized, as the result of a pre-trial investigation, that the elements of proof required for a capital crime were not met. Indeed, the US authorities

6.

Judgment of the Hoge Raad of 30 March 1990, 22 Netherlands Yearbook of International Law (1991) 432, 29 ILM (1990) 1375. – For the development of Dutch case law on extradition and human rights up to the Short case, see Harmen G. van der Wilt, ‘Après Soering: The Relationship Between Extradition and Human Rights in the Legal Practice of Germany, the Netherlands and the United States’, Netherlands International Law Review (1995) 53–80 at 63–69. It appears that the Hoge Raad never before had to deal with a situation of treaty conflict such as in Short. In addition to the court’s somewhat unclear and changing statements in earlier judgments on the issue of extradition and human rights, this makes it difficult to say whether Short marked a shift in its practice. 7. See Art. 4, Exchange of notes constituting an agreement between the United States of America and the Netherlands relating to the stationing of United States Armed Forces in the Netherlands (13 August 1954, in force 16 November 1954, 251 UNTS 91), in connection with Art. VII(1)(a), (3)(a)(1), (5)(a), NATO Status of Forces Agreement (19 June 1951, in force 23 August 1953, 199 UNTS 67). 8. With regard to the applicability of the guarantees of the ECHR, the Hoge Raad referred to the Soering judgment of the European Court of Human Rights, discussed in section 2.1.3 below. 9. 22 Netherlands Yearbook of International Law at 437; see also 29 ILM at 1389, para. 3.5. 10. See 29 ILM at 1375, footnote; Steven J. Lepper, ‘Short v. The Kingdom of The Netherlands: Is it Time to Renegotiate the NATO Status of Forces Agreement?’, 24 Vanderbilt Journal of Transnational Law (1991) 867–943 at 876.

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had previously rejected Dutch efforts to obtain such a guarantee (or a waiver of jurisdiction) as a matter of principle.11 The inclination of the Netherlands to favour human rights over extradition obligations has also found its way into treaty law. Under the extradition treaty with Hong Kong of 1992, a party has the right to deny an extradition request if complying with it would ‘place that party into breach of its obligations under international treaties’.12 While not mentioning them expressly, it is clear that the clause had human rights treaties in view.13 The some holds true for a 1993 amendment to the extradition treaty with Surinam, which permits a Party to refuse an extradition which it consideres ‘incompatible with the public interest or national law’. ‘In making his decision’, the responsible minister ‘shall bear in mind the international obligations assumed by his State in connection with other matters’.14 2.1.3. United Kingdom Less than a year before the Short judgment, a similar case had been before the European Court of Human Rights (ECtHR). It dealt with the pending extradition of Jens Soering from the United Kingdom to the United States, where the accused, suspected of double murder, would have faced the death penalty. In a landmark judgment, the ECtHR ruled that the UK was prohibited from extraditing Soering by Article 3 of the Convention.15 The UK complied with this ruling and extradited Soering only after receiving assurances that no capital charges would be brought against him.16 As in the Short case, the applicable treaty in principle obliged the UK to extradite murder suspects.17 But in contrast to the situation in Short, the treaty allowed the requested party to refuse an extradition ‘unless 11. See Lepper, ‘Short’, supra note 10, at 875–76, 896, 941. 12. Art. 7(c), Agreement between the Government of the Kingdom of the Netherlands and the Government of Hong Kong for the Surrender of Fugitive Offenders, 2 November 1992, in force 20 June 1997, 1998 UNTS 309. 13. See John Dugard and Christine van den Wyngaert (Co-Rapporteurs), ‘Third Committee Report on Extradition and Human Rights’, International Law Association Conference Report (1998) 132–54 at 134–35 n.3. 14. Art. 1(2), Protocol Containing Special Provisions Regarding the Agreement between the Kingdom of the Netherlands and the Republic of Suriname Concerning Extradition and Legal Assistance in Criminal Matters of 27 August 1976, 18 May 1993, in force 28 February 1995, 2335 UNTS 122; see, again, Dugard and van den Wyngaert, ‘Extradition’, supra note 13, at 134–35 n.3. 15. Soering v. United Kingdom, Application no. 14038/88, European Court of Human Rights, Plenary Court, Judgment (7 July 1989). 16. See Richard Lillich, ‘The Soering Case’, 85 American Journal of International Law (1991) 128–49 at 143. 17. Arts I and III, schedule para. 1, Extradition Treaty between the UK and the US, 8 June 1972, in force 31 January 1977, 1049 UNTS 167.

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the requesting Party gives assurances satisfactory to the requested Party that the death penalty will not be carried out’.18 Such assurances were lacking untill well after the ECtHR judgment.19 Thus, under the treaty itself, the UK was under no obligation to extradite. Yet, the British Secretary of State had signed an extradition order while Soering’s appeal to the ECtHR was still pending.20 If this order was communicated to the US without a reservation for an adverse ECHR judgment, it is arguable that there existed a binding agreement between the two states, the US having expressed its will in the extradition request and the UK consenting to it in granting the request. This would indeed correspond to the ‘contractual theory’ of extradition (‘Vertragstheorie’), according to which any extradition is preceded by an international agreement, be it a general extradition treaty or a case-specific agreement.21 Thus, those authors which have asserted that the UK was facing conflicting obligations in the Soering case22 – a view shared by the ECtHR itself23 –, may be right, even though others have denied such a conflict24 18. 19. 20. 21.

Art. 4. See Soering, supra note 15, at paras 20, 22, 97–98. See ibid., at para. 24. See Otto Lagodny, Die Rechtsstellung des Auszuliefernden in der Bundesrepublik Deutschland, (Max-Planck-Institut für ausländisches und internationales Strafrecht: Freiburg i.Br., 1987) at 11–26. 22. Karl Doehring, ‘Vertragskollisionen – Der Soering-Fall’, in Jörn Ipsen and Edzard Schmidt-Jortzig (eds), Recht – Staat – Gemeinwohl. Festschrift für Dietrich Rauschning (Heymanns: Köln, Berlin, Bonn and München, 2001) 419–26; Gérard Cohen-Jonathan, ‘Les rapports entre la Convention européenne des droits de l’homme et les autres traités conclus par les États parties’, in Rick Lawson and Matthijs de Blois (eds), Essays in Honour of Henry G. Schermers (3 vols, Nijhoff: Dordrecht, Boston and London, 1994), vol. III, The Dynamics of the Protection of Human Rights in Europe, 79–111 at 102–03; Ahmad Ali Ghoury, ‘Determining Hierarchy Between Conflicting Treaties: Are There Vertical Rules in the Horizontal System?’, Asian Journal of International Law 2012, 1–32 at 2; van der Wilt, ‘Après Soering’, supra note 6, at 55. 23. Mamatkulov and Askarov v. Turkey, Applications no. 46827/99 and 46951/99, European Court of Human Rights, Grand Chamber, Judgment (4 February 2005), at para. 107 (‘In order to abide by the Convention and the Court’s decision, the British Government were forced to default on their undertaking to the United States … Thus, the judgment resolved the conflict in this case between a State Party’s Convention obligations and its obligations under an extradition treaty with a third-party State by giving precedence to the former’); Al-Saadoon and Mufdhi v. United Kingdom, Application no. 61498/08, European Court of Human Rights, Judgment (2 March 2010), at para. 128 (‘[I]n Soering …, the obligation under Article 3 of the Convention … was held to override the United Kingdom’s obligations under the Extradition Treaty’). 24. Stephan Breitenmoser and Gunter E. Wilms, ‘Human Rights v. Extradition: The Soering Case’, 11 Michigan Journal of International Law (1990) 845–86 at 877–78 (no treaty conflict because of the absence of sufficient assurances); Jan Klabbers, Treaty conflict and the European Union (Cambridge University Press, 2009) at 104 (‘no real treaty conflict’); Lepper, ‘Short’, supra note 10, at 878, 907 with n.180 (no obligation for the UK to extradite Soering in the absence of assurances). See also Colin Warbrick, ‘Coherence and the European Court of Human Rights: The Adjudicative Background to the Soering Case’, 11 Michigan Journal of International Law (1990) 1073–96 at 1093–94 (leaving open whether a conflict existed).

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(without any of either authors examining or even mentioning the contractual theory of extradition). Leaving this question open, one can at least say that the UK was giving a certain preference to the ECHR over the extradition treaty, in that it applied the latter in a way consistent with the Convention – although only after receiving explicit directions from the ECtHR. 2.1.4. France French practice (and doctrine) provides some support for a priority of the ECHR as well, even though ‘hard’ treaty conflicts do not appear to have occurred there either. A representative of the Government and a prominent author have assumed that French courts would deny treaty-based extradition requests if France thereby violated the ECHR, considered part of the ordre public (public policy).25 The Cour de cassation has indeed given preference to an ECHR provision of 1984 over earlier bilateral treaties (of 1964 and 1957/1981) on the mutual recognition of judgments26. The issue was whether divorce rulings based on the unilateral repudiation of the wife by the husband under Islamic law had to be recognized in France, despite the guarantee of equality between spouses in Article 5 of Protocol No. 7 to the ECHR. The Cour de cassation has denied such judgments any legal effect in France.27 The non-recognition was formally based either on procedural 25. See the statement of R. Abraham, commissaire du Gouvernement, in Revue du droit public (1992) 1793–97 at 1796 (for whom the right to family life under art. 8 ECHR should, by the same principle, likewise prevail over a bilateral treaty providing for the loss of a residence permit); Cohen-Jonathan, ‘Rapports’, supra note 22, at 104. Cohen-Jonathan refers to the just cited statement of R. Abraham and to the Fidan judgment of the Conseil d’État of 27 February 1987, No. 78665, Recueil Dalloz 1987, jurisprudence, 309. In Fidan, an extradition which could have led to the death penalty was considered contrary to the ordre public. But, because no extradition treaty was involved, this judgment can hardly serve as a precedent for treaty conflicts. – For some authors, only a subset of ECHR rights belong to the ordre public (see the references in Lyn François, ‘La Convention européenne des droits de l’homme est-elle supérieure aux conventions bilatérales reconnaissant les répudiations musulmanes?’, Recueil Dalloz 2002, chroniques, 2958–62 at 2961), but this view seems to be isolated. – If all the State parties followed the French approach and considered the ECHR part of their ordre public, the Convention would indeed become a ‘European ordre public’, as the European Court of Human Rights called it in Loizidou v. Turkey, Application no. 15318/89, European Court of Human Rights, Grand Chamber, Judgment (23 March 1995), at para. 75 (‘constitutional instrument of European public order [ordre public]’) (see also François, at 2962). 26. Treaty between France and Algeria of 27 August 1964, Journal officiel de la République française (JO) 1965, 7269; Treaty between France and Morocco of 5 October 1957, JO 1960, 425, in connection with the Treaty of 10 August 1981, JO 1981, 1643. 27. The seminal judgments of 2004 are reported and discussed in Patrick Courbe, ‘Le rejet des répudiations musulmanes’, Recueil Dalloz 2004, chroniques, 815–20; Recueil Dalloz 2004, jurisprudence, 828–29; Semaine juridique 2004, 1481–87 (no. II 10128) (note Hugues Fulchiron); Journal du Droit International 2004, 1200–11 (note Léna Gannagé); 93 Revue critique de droit international privé (2004) 423–39 (note Petra Hammje); Revue trimestrielle de droit civil 2004, 367–69 (note Jean-Pierre Marguenaud); Defrénois: La revue du notariat 2004, 812–15 (note

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reasons or on the ordre public clauses contained in the bilateral treaties (the ordre public in France comprehending, as mentioned, the ECHR rights), so that ostensibly, a direct conflict was avoided. In substance, however, the court was faced with opposing treaties, and resolved the conflicts in favour of the ECHR.28 This is, at least, how the decisions were perceived from the outside. In fact, however, as the President of the deciding Chamber of the Court later confirmed, he had truly thought (and still thought) that the ordre public reservations had precluded a treaty conflict.29 Therefore, one should probably not read too much into these decisions. Nonetheless, the same former President has also declared that as a general rule, the primacy of the ECHR, as a ‘fundamental treaty’, was ‘difficult to deny’.30 Thus, it can be assumed – in accordance with the statements cited at the beginning of this section – that in the case of a ‘true’ conflict, the Cour de cassation would decide in favour of the ECHR as well. This assumption is all the more justified by the importance that French courts attach to the ordre public, and Jacques Massip). For the development of the case law up to 2004, see D.D. v. France, Application no. 3/02, European Court of Human Rights, Striking out (8 November 2005), at paras 21–24; Roula el-Husseini Begdache, Le droit international privé français et la répudiation islamique (LGDJ: Paris, 2002) at 231–34, 237; François, ‘Convention’, supra note 25, at 2959–60; Jacques Lemontey, ‘Le volontarisme en jurisprudence: L’exemple des répudiations musulmanes devant la Cour de cassation’, in Droit international privé. Travaux du Comité français de droit international privé, 2004–2006 (Pedone: Paris, 2008) 63–73 at 64–69; Ali Mezghani, ‘Le juge français et les institutions du droit musulman’, 130 Journal du Droit International (2003) 721–65 at 730 n.39; ‘Le rejet des répudiations musulmanes’, Recueil Dalloz 2002, jurisprudence, 824–28 at 825–27 (conclusions Francis Cavarroc, Avocat général); Marie-Claude Najm, note sous Cour de cassation (Chambre civile 1), 3 janvier 2006, 95 Revue critique de droit international privé (2006) 629–42 at 629–30. For the case law after 2004, which has confirmed the continuing validity of the judgments of 2004, see particularly Cour de cassation (Chambre civile 1), 3 janvier 2006, 95 Revue critique de droit international privé (2006) 627–42 (note Marie-Claude Najm), and Cour de cassation (Chambre civile 1), 4 novembre 2009, no. 08-20.574, Bulletin des arrêts de la Cour de cassation. Chambres civiles, 2009 I, no. 217 (also reported in 99 Revue critique de droit international privé [2010] 369–72). 28. See Frédéric Guerchon, ‘La primauté constitutionelle de la Convention européenne des droits de l’homme sur les conventions bilatérales donnant effet aux répudiations musulmanes’, 132 Journal du Droit International (2005) 695–737 at 699–703; Marguenaud, ‘note’, supra note 27, at 368–69; Courbe, ‘Rejet’, supra note 27, at 816; Begdache, Répudiation, supra note 27, at 230 with n.502 (but see also ibid., at 233–34: relying on the ECHR was an ‘argument of opportunity’, because in fact, equality of the sexes is a constitutional principle and was prioritized as such over the bilateral treaties; the reference to the ECHR only served to justify and legitimize the result); Droit international privé. Travaux du Comité français de droit international privé, 2004–2006 (Pedone: Paris, 2008) at 81–82 (statement of Jean-Pierre Ancel). 29. See the statement of Jacques Lemontey in Droit international privé. Travaux du Comité français de droit international privé, 2004–2006 (Pedone: Paris, 2008) at 80. He even revealed candidly that the true motive behind some of the judgments was to ‘retort to’ breaches of the bilateral treaty by the other side (ibid., at 80–81; Lemontey, ‘Volontarisme’, supra note 27, at 65–67, 71). This, however, did not apply to those decisions that expressly referred to the ECHR. 30. Lemontey statement, supra note 29, at 80.

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by the fact that they also apply principles of ordre public to treaties containing no such clause, as long as the treaty does not ‘expressly’ derogate from them.31 Finally, the position also finds support in legislative proposals: In 2005, the Assemblée nationale’s Delegation on the Rights of Women and Equal Opportunities Between Men and Women recommended to denounce bilateral conventions incompatible with gender equality; and in the preceding year, it was suggested in the Senate that an article be inserted in the Code civil affirming the priority of the ECHR over all other international commitments of France.32 The Cour de cassation employed an approach similar to the repudiation cases in a decision about a claim of a French dismissed by the African Development Bank. The Agreement establishing the African Development Bank granted the latter immunity and thus, on its terms, prevented the French courts from hearing the employee’s claims. Nonetheless, the Cour de cassation decided that because the Bank itself lacked an internal tribunal with jurisdiction over the issue, the employee’s right of access to a court would be violated if the French judiciary declined to accept the case. It held that such a refusal would amount to a denial of justice and a violation of the ordre public, so that the French courts had to declare themselves competent if the case was sufficiently linked to France. Thus, the Court again refrained from openly asserting a priority of the ECHR’s right of access to a court (Article 6) as such, integrating it instead into to the domestic law concept of ordre public and making it prevail over the conflicting treaty in this way.33 Remarkably, the Agreement establishing the African Development Bank does not contain a reservation for the ordre public, so that it is even clearer than in the repudiation cases that the decision amounts to the assertion of a priority of the Convention. 2.1.5. Germany Compared to their French counterparts, German judges appear to be less inclined to resolve treaty conflicts in favour of the ECHR. Admittedly, the German Constitutional Court has, in general terms, stated that extradition decisions have to respect the ‘internationally binding minimum standard’ of human rights.34 However, if those human rights obligations were to collide with extradition treaty obligations – which has never occurred up to date – it appears that the Court would give precedence to the obligation to extradite, unless the human 31. See the submission by M. Bonichot, commissaire du Gouvernement, in the Fidan case, Recueil Dalloz 1987, jurisprudence, at 306 in fine, and the case discussed in the next paragraph. 32. See Najm, supra note 27, at 633 n.16. The Senate amendment is available on . 33. See Mathias Forteau, ‘L’ordre public “transnational” ou “réellement international”’, Journal du Droit International 2011, 3–49 at 17 n.56. 34. Entscheidungen des Bundesverfassungsgerichts (BVerfGE) 113, 154 (2005) at 162; 75, 1 (1987) at 19–20; 63, 332 (1983) at 337; 59, 280 (1982) at 282–83.

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right was ius cogens.35 This is questionable in view of the fact that Article 25 of the Grundgesetz places general (customary) international law – to which the ‘internationally binding minimum standard’ of human rights belongs – above statutory law. Treaties have the same hierarchical position as statutory law, because they derive their (internal) legal validity from the statute which transforms them into national law (the ‘Zustimmungsgesetz’).36 Thus, in the view of the present author, the ‘internationally binding minimum standard’ of human rights should trump treaty obligations. This would also include those ECHR rights which are simultaneously part of general international law. 2.1.6. Switzerland Pronouncements of Swiss authorities, while not free of some aberrations, point strongly towards a priority of the ECHR. In 1982, the Swiss Supreme Court decided that a treaty-based extradition request could not be granted if the accused ran the risk of human rights violations in the requesting state.37 The case concerned a possible violation of Article 3 ECHR – and therefore of a ius cogens norm –, but the rule pronounced by the court appears to cover any human rights guarantees, which would thus precede obligations under extradition treaties. This reading is confirmed by a more recent dictum of the court, which states that in the case of a conflict between a legal assistance treaty and a human rights treaty, it would be difficult to deny that the latter would prevail.38 The Swiss Government, on its part, has also taken the general view that the ‘significance’ of a norm and the ‘respect’ that it enjoys should be taken into account when resolving conflicts between international law norms; as examples of 35. See BVerfGE 75, 1 (1987) at 19–20 (referring to the State responsibility that Germany would incur if it refused to extradite despite a treaty obligation; it seems that the Court overlooks that Germany would equally incur responsibility if it breached the human rights norm); BVerfGE 59, 280 (1982) at 283 (e contrario: ‘Gegebenenfalls könnte ein solcher Verstoss [gegen den völkerrechtlich verbindlichen Mindeststandard] … Anlass sein, die rechtliche Zulässigkeit der Auslieferung zu verneinen, insbesondere sofern … eine völkerrechtliche Auslieferungsverpflichtung nicht besteht’ – ‘In an appropriate case, such an infringement of the internationally binding minimum standard could be a reason to deny the permissibility of the extradition, especially if there exists no obligation to extradite under international law’ [emphasis added]). – Nonetheless, for van der Wilt (‘Après Soering’, supra note 6, at 58), the case law of the Constitutional Court ‘[u]nambiguously … instructs the judges to give precedence to ‘some’ rules of international law [namely, the internationally binding minimum standard of human rights] over extradition obligations’. 36. BVerfGE 75, 1 (1987) at 18–19. 37. Entscheidungen des Schweizerischen Bundesgerichts, 108 Ib 408 (1982) at 412, para. 8.a. 38. Entscheidungen des Schweizerischen Bundesgerichts, 126 II 324 (2000) at 327–28, para. 4.d. This position has been welcomed by Walter Kälin, Regina Kiener, Andreas Kley, Pierre Tschannen and Ulrich Zimmerli, ‘Die staatsrechtliche Rechtsprechung des Bundesgerichts in den Jahren 2000 und 2001’, 138 Zeitschrift des Bernischen Juristenvereins (2002) 605–704 at 691–92.

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‘significant’ and ‘respected’ norms, it mentioned human rights treaties, in particular the ECHR.39 Somewhat to the contrary, the Swiss Federal Administrative Tribunal recently stated that a bilateral treaty between Switzerland and the United States on administrative assistance prevailed over the ECHR under the rules of the VCLT and general treaty conflict rules (lex posterior and lex specialis).40 This reasoning is faulty in several respects: As will be shown below, the pertinent Article 30(4)(b) VCLT does not establish any order of priority between conflicting treaties with partially different parties, and neither does customary law contain a rule of lex posterior or lex specialis for such situations. In any case, the Tribunal hastened to add that the proclaimed conflict rules might appear too ‘technical’ in view of the special nature of the ECHR as part of the ‘European ordre public’; in this context, it referred to the above-mentioned statements of the Supreme Court and the Federal Council.41 In the end, the Administrative Tribunal left the question undecided. Its wavering deliberations cannot detract from the fact that the supreme judicial and governmental authorities in Switzerland have decidedly supported a priority of the ECHR over other treaties. 2.1.7. European Union Under the heading of state practice in a wider sense, it also bears mentioning how the European Court of Justice (ECJ) responded to the Matthews judgment42 of the ECtHR. In Matthews, the ECHR had held that the Community provisions for the elections to the European Parliament infringed the right to free elections under the First Protocol to the ECHR by excluding the residents of Gibraltar from the electorate. Subsequently, the ECJ decided that the controversial election provisions had to be – and could be – interpreted in a way consistent with the Convention, i.e., including the Gibraltarians.43 While ostensibly only interpreting Community law – which prevented or removed a norm conflict in the first place –, the ECJ in fact placed the ECHR above Community law, because the wording of the relevant provisions did actually not leave any leeway for the proclaimed ‘interpretation’.44 39. Report of the Federal Council on the ‘Relationship between International Law and National Law’, Bundesblatt der Schweizerischen Eidgenossenschaft 2010, 2263, at 2284, with reference to the last-mentioned decision of the Supreme Court. 40. Entscheidungen des Schweizerischen Bundesverwaltungsgerichts, 2010/40 (decision of 15 July 2010) at para. 6.3. 41. Ibid., at para. 6.4. 42. Matthews v. United Kingdom, Application no. 24833/94, European Court of Human Rights, Grand Chamber, Judgment (18 February 1999). 43. Case C-145/04, Spain v. United Kingdom [2006] ECR I-7917. 44. Annex I to the Act concerning the election of the representatives of the European Parliament by direct universal suffrage of 20 September 1976, OJ 1976 No. L278/1 (as amended by Council Decision 2002/772/EC, Euratom, of 25 June 2002 and 23 September 2002, OJ 2002 No. L283/1) unequivocally states that ‘The United Kingdom will apply the provi-

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2.1.8. Conclusion State and EC practice favour a primacy of the ECHR over other treaties. These decisions appear to rest on the content of the treaties (human rights v. other obligations); other considerations such as the chronological order seem irrelevant.45 However, this practice is rather sparse, especially concerning instances of ‘true’ conflicts forcing a state to openly choose one treaty over another. It has therefore hardly been able – at least not by itself – to generate a corresponding norm of customary international law. Still, one could argue that it indicates the emergence of such a rule.

2.2. Practice of ECHR Organs 2.2.1Conflicts with Treaty Law With regard to conflicts between the ECHR and later treaties, the former Commission46 and the Court47 have consistently taken the view that obligations under such a treaties cannot justify a violation of the Convention. Whether this implies an assertion that the Convention takes a hierarchical priority over these treaties is controversial. Some authors argue that the competence of a treaty organ is necessarily limited to determining whether the treaty sions of this Act only in respect of the United Kingdom’. See also Marko Milanović, ‘Norm Conflict in International Law: Whither Human Rights?’, 20 Duke Journal of Comparative and International Law (2009) 69–131 at 119: ‘[T]he ECJ retroactively interpreted the 1976 Act to make it compatible with Article 3 of Protocol No. 1 to the ECHR, even though after Matthews was decided everyone involved thought that it was incompatible.’ – It should be noted that the Act of 1976 is part of or at least has the same status as the primary law of the Community, and therefore could not be reviewed by the ECJ for its compatibility with e.g. fundamental rights under EU law. 45. See John Dugard and Christine van den Wyngaert, ‘Reconciling Extradition with Human Rights’, 92 American Journal of International Law (1998) 187–212 at 194–95. 46. See X. v. Germany, Application no. 235/56, European Commission of Human Rights, Decision (10 June 1958), 2 Yearbook of the European Convention on Human Rights (1958–1959) 256 at 300 (‘[I]f a State contracts treaty obligations and subsequently concludes another international agreement which disables it from performing its obligations under the first treaty [in casu, the ECHR], it will be answerable for any resulting breach of its obligations under the earlier treaty’), quoted with approval in M. & Co. v. Germany, Application no. 13258/87, European Commission of Human Rights, Decision (9 February 1990), 64 Decisions and Reports (1990) 138 at 145. 47. Matthews, supra note 42, at paras 32–33; Prince Hans-Adam II of Liechtenstein v. Germany, Application no. 42527/98, European Court of Human Rights, Grand Chamber, Judgment (12 July 2001), at para. 47 (‘Thus the Contracting States’ responsibility continues even after their having entered into treaty commitments subsequent to the entry into force of the Convention or its Protocols in respect of these States’); Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v. Ireland, Application no. 45036/98, European Court of Human Rights, Grand Chamber, Judgment (30 June 2005), at para. 154; Capital Bank AD v. Bulgaria, Application no. 49429/99, European Court of Human Rights, Judgment (24 November 2005), at para. 111 (obiter dictum); Al-Saadoon, supra note 23, at paras 128, 137–38, 162.

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to which it owes its existence has been violated; it would be impossible for it to leave this ‘internal’ perspective and examine from the ‘outside’, i.e. from the viewpoint of general international law, whether ‘its’ treaty might be subordinate or superior to another norm.48 In the opinion of these authors, a finding by e.g. the ECtHR that the conclusion or implementation of another treaty violates the Convention simply means that the Court finds the two instruments incompatible, without asserting a priority of the ECHR. Thus, they consider the case law of such treaty organs irrelevant for the issue of treaty hierarchy. Indeed, the ECtHR, above all, has refrained from explicit statements about the priority or otherwise of the Convention over other international norms. Implicitly however, it has quite unmistakably acknowledged the priority of the UN Charter over the ECHR49 – as, by the way, the ECJ has done with regard to EU law50 –, which already disproves this doctrinal opinion.51 Regarding other treaties or norms, the Court has approached the priority issue even more indirectly, simply treating them (or rather their conclusion or implementation) as restrictions of convention rights,

48. Dugard and van den Wyngaert, ‘Reconciling’, supra note 45, at 195; van der Wilt, ‘Après Soering’, supra note 6, at 55; Ignaz Seidl-Hohenveldern, ’Hierarchy of Treaties’, in Jan Klabbers and René Lefeber (eds), Essays on the Law of Treaties. A collection of essays in honour of Bert Vierdag (Nijhoff: The Hague, Boston and London, 1998) 7–18 at 12 (for the ECJ; but see the contrary ECJ case law in note 51 below!). Jenks, ‘Conflicts’, supra note 5, at 448–49, calls this the ‘autonomous operation principle’; according to him, this principle is limited by other principles like the ‘hierarchic’ or the ‘lex specialis’ principle. 49. See Behrami v. France, Application no. 71412/01, European Court of Human Rights, Grand Chamber, Decision (2 May 2007) at paras 147 and 27 (stating that the Court ‘had regard to’ Art. 103 of the Charter ‘as interpreted by the International Court of Justice’, which ‘considers Article 103 to mean that the Charter obligations of UN member states prevail over conflicting obligations from another international treaty’); Al-Jedda v. United Kingdom, Application no. 27021/08, European Court of Human Rights, Grand Chamber, Judgment (7 July 2011), at para. 101 (apparently accepting that in the event of a conflict of the UN Charter with the ECHR, the Charter would prevail). 50. See note 260 below. 51. Nonetheless, it is certainly true that most international tribunals almost automatically give precedence to ‘their’ treaty (for the example of an Austrian-German Arbitral Tribunal, see Ignaz Seidl-Hohenveldern, ‘Widersprüchliche völkerrechtliche Verpflichtungen vor internationalen Rechtsprechungsorganen’, in Ottoarndt Glossner and Walter Reimers [eds], Festschrift für Martin Luther zum 70. Geburtstag (Beck: München, 1976) 179–90 at 187–89). However, even this does not necessarily have to rest on an a priori rejection of the relevance of other treaties. Instead, it could be due to the fact that the other treaties were treaties with third states. In the view of the present author, a tribunal is constrained to decide about and take into account only the rights and obligations between the parties before it, notwithstanding their relationships, including treaties, with third states. In other words: If treaty AD conflicts with treaty ABC, so that its conclusion or application by A violates the rights of B and C, a tribunal charged with overseeing compliance with treaty AD will still have to enforce this treaty, because it may not look beyond the relation of A and D. Such a judgment does not, then, imply that treaty AD ‘prevails’ over treaty ABC.

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which have to be – and in appropriate cases can be – justified under the general52 requirements for such restrictions. On first sight, this would seem to indicate no relationship of priority between the conflicting norms, because each of them could prevail in a specific instance. Nonetheless, a careful examination of the case law shows that at least de facto, some international norms – especially the customary law on immunity (see section 2.2.3. below) – are invariably given precedence over the ECHR. In the opinion of the present author, this indicates a tacit acceptance of the priority of these norms, similar to the more openly acknowledged priority of the UN Charter. Conversely, if the ECtHR subjects other international law norms to real scrutiny and does not hesitate to declare them incompatible if they do not fulfil the requirements for restrictions of Convention rights – which is exactly the case with treaties postdating the Convention –, it is submitted that the Court thereby asserts a priority of the Convention over these norms.53 Concerning treaties predating the convention, the case law of ECHR organs is less conclusive. In a decision about the imprisonment of Rudolf Hess in BerlinSpandau by the allied powers under an agreement of 1945, the Commission made a statement that can be understood to concede priority (or at least immunity from scrutiny) to earlier treaties.54 However, its significance is reduced by the fact that it was an obiter dictum (as will just be seen, the case was decided on the ground of Article 1 ECHR and not of a priority of one of the treaties) and that it literally only covered the conclusion of the agreement in 1945, which indeed did not fall under the convention ratione temporis. Acts implementing the agreement, on the other hand, were not attributed to the respondent state (the United Kingdom), because they were undertaken collectively by the allied powers. Therefore, Hess was considered not to be within the UK’s ‘jurisdiction’ as required by Article 1 ECHR.55 More recently, the Court has held in the Slivenko case that it can 52. Or sometimes modified, as especially in the case of secondary EU law (see section 2.4.1 infra). 53. Accord Alexander Orakhelashvili, ‘Art. 30’, in Olivier Corten and Pierre Klein (eds), The Vienna Conventions on the Law of Treaties. A Commentary (Oxford University Press, 2011) 764–803 at 798: ‘[T]he decisions of the European Court of Human Rights on the primacy of the European Convention over other treaties’ (he probably means the decisions that tested later treaties for compliance with the ECHR, because explicit ‘decisions … on the primacy’ of the ECHR do not exist) are not based on the ‘autonomous operation principle’ (see note 48 above); rather, the Court asserts a ‘real’ primacy of the Convention over other treaties. 54. Hess v. United Kingdom, Application no. 6231/73, European Commission of Human Rights, Decision (28 May 1975), 2 Decisions and Reports (1975) 72 at 74: ‘The conclusion by the respondent Government of an agreement concerning Spandau prison of the kind in question in this case could raise an issue under the Convention if entered into when the Convention was already in force for the respondent Government. The agreement concerning the prison, however, came into force in 1945. Moreover, a unilateral withdrawal from such an agreement is not valid under international law.’ – The statement is understood in this sense by, e.g., Bardo Fassbender, ‘Der Fürst, ein Bild und die deutsche Geschichte’, Europäische Grundrechte-Zeitschrift (2001) 459–66 at 463. 55. Hess, supra note 54, at 74. – The Commission declared the application inadmissable ratione

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review actions implementing an earlier treaty for their compatibility with the Convention.56 In this dispute, the earlier treaty was a treaty between Latvia and Russia of 1994, Latvia having subsequently joined the ECHR in 1997 and Russia in 1998. However, a closer examination reveals that the case did not involve the kind of treaty conflict that is of interest here. First, the earlier treaty was a treaty between two states that were also parties to the ECHR.57 Such a situation must be governed by the principle of lex posterior, as provided for by Article 30(3) VCLT, according to which a later treaty prevails over an earlier one between the same parties insofar as the two are incompatible. Second, it appears that Latvia was not pitted between conflicting obligations at all. The bilateral treaty provided for the withdrawal of Russian troops and the return of retired Russian officers to Russia, but apparently it did not oblige Latvia to expel them (which was the cause of the complaint).58 Third, the treaty itself required that ‘Latvia shall guarantee the rights and freedoms of [the persons affected], in accordance with the legislation of the Republic of Latvia and the principles of international law’.59 Thus, there was probably no ‘true’ conflict at all, as the bilateral treaty, even if it obliged Latvia to expel these persons, did not require it to do so in violation of its ECHR obligations. For all these reasons, on the facts of the case, Slivenko does not mean that the Court claims a priority of the ECHR over earlier treaties where such priority is not already ensured by the principle of lex posterior. Nonetheless, the decision’s wording is admittedly broader60, which has led some observers to conclude that Slivenko contains an ‘important statement of principle’ implying that ‘obligations in human rights treaties … enjoy some kind of a precedence to merely transactional bilateral instruments’.61

56.

57. 58. 59. 60.

61.

personae (because Hess’ detention and treatment were not attributable to the United Kingdom); it could have also denied the admissibility ratione loci (because Hess was detained neither in the UK nor under the sole power of the UK in Berlin). Slivenko v. Latvia, Application no. 48321/99, European Court of Human Rights, Grand Chamber, Decision (23 January 2002) (‘Slivenko I’), at paras 60–62, and Slivenko v. Latvia, Application no. 48321/99, European Court of Human Rights, Grand Chamber, Judgment (9 October 2003) (‘Slivenko II’), at para. 120. This is overlooked by Patrick Daillier, Mathias Forteau and Alain Pellet, Droit international public (8th edn, LGDJ: Paris, 2009) at 300, para. 173. See the submissions by the applicants in Slivenko I, supra note 56, at paras 42 and 62, and Slivenko II, supra note 56, at para. 69, which are nowhere contradicted by the Court or the defendant state. Slivenko II, at para. 65; Slivenko I, at para. 62. Slivenko I, at para. 61: ‘In the Court’s opinion the same principles [that the Court has the power to review the compatibility of an older law with the convention] must apply as regards any provisions of international treaties which a Contracting State has concluded prior to the ratification of the Convention and which might be at variance with certain of its provisions’ (emphasis added). ILC, Fragmentation, supra note 3, at 127, para. 248; similarly, Daillier, Forteau and Pellet, Droit international public, supra note 57, at 300, and Cornelia Janik and Thomas Kleinlein,

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2.2.2. Conflicts with Secondary EU Law Conflicts of the ECHR with secondary EU law can be seen as a special case of treaty conflicts, the conflicting treaties being the Convention on the one hand and the Treaty on European Union (TEU) or the Treaty on the Functioning of the European Union (TFEU) – which underlie the secondary law and make it mandatory for member states – on the other. However, these conflicts and their treatment by the ECtHR have some particular features, which warrant a separate discussion. The leading case for conflicts with secondary EU law is Bosphorus,62 dealing with the impoundment by Ireland of an aircraft owned by the national airline of Yugoslavia, in implementation of an EEC regulation. In its decision, the ECtHR did not explicitly address the issue of a hierarchy between EU law and the ECHR. Instead, it simply examined whether the Irish measure complied with the conditions for the restriction of a Convention right (legitimate aim, proportionality).63 This might appear to imply that the Convention claims priority over secondary EU law, as is apparently the case with respect to primary (treaty) EU law64. However, this is put into doubt by the Court’s self-imposed limitation on the scope of its scrutiny in such cases. The Court presumes state actions implementing the secondary law of an inter- or supranational organisation to be compatible with the ECHR, if only the relevant organisation offers a mechanism for the protection of human rights which is ‘at least equivalent to that for which the Convention provides’.65 To rebut this presumption, it needs to be shown that ‘in the circumstances of a particular case, … the protection of Convention rights was manifestly deficient’.66 Practically, this means that secondary EU law prevails over the ECHR in all but the most extraordinary cases. Yet, neither should one fall into the other extreme and see therein an acknowledgment of a hierarchical superiority of secondary EU law. First, the wording of the decision is incompatible with such an understanding.67 Second, as has been mentioned, the ECtHR subjects primary (treaty) EU law postdating the Convention to its scrutiny, which

62.

63. 64. 65. 66. 67.

‘When Soering Went to Iraq…: Problems of Jurisdiction, Extraterritorial Effect and Norm Conflicts in Light of the European Court of Human Rights’ Al-Saadoon Case’, 1 Goettingen Journal of International Law (2009) 459–518 at 510. Bosphorus, supra note 47, resting essentially on the less famous precursor case M. & Co. v. Germany, supra note 46. The Bosphorus approach has recently been confirmed in M.S.S. v. Belgium and Greece, Application no. 30696/09, European Court of Human Rights, Grand Chamber, Judgment (21 January 2011), at para. 338 (obiter dictum, as Art. 3 of the Dublin Regulation did not oblige Belgium to return the asylum seeker to Greece [see ibid., at paras 74, 339–40]). Bosphorus, supra note 47, at paras 149–51. See the Matthews case, supra note 42 and accompanying text. Bosphorus, supra note 47, at para. 155. Ibid., at para. 156. Ibid., at para. 153: ‘[A] Contracting Party is responsible under Article 1 of the Convention for all acts and omissions of its organs regardless of whether the act or omission in question

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makes it logically impossible that the same court considers secondary EU law superior to the ECHR (if A is superior to B and B superior to C, C cannot be superior to A). Third, the ECtHR reserves the possibility to declare a violation of a Convention right where its protection by the EU itself is ‘manifestly deficient’, which means that ‘when push comes to shove’, the ECHR is still given priority. Thus, the approach of the Court should rather be seen as a pragmatic solution which takes account of the fact that states do transfer substantial competences to supranational organisations like the EU and cannot, once they have done so, realistically refuse to implement the secondary law emanating from such an organisation. Therefore, it would simply be unfair and impractical to hold them responsible according to the normal standards. 2.2.3. Conflicts with Customary International Law In addition to conflicts between ECHR obligations and obligations under other treaties or EU law, the ECtHR has also had to deal with conflicts or tensions between the ECHR and customary international law. So far, this has been limited to the field of immunities. In the Al-Adsani case68, a torture victim had tried to sue Kuwait in England. The English courts had rejected the suit on account of Kuwait’s sovereign immunity. Al-Adsani claimed that this violated his right of access to a court under Article 6 ECHR. The ECtHR agreed that granting an immunity curtails this right, and that this is only permissible if it pursues a legitimate aim and is proportional.69 It considered ‘complying with international law to promote comity and good relations between States through the respect of another State’s sovereignty’ a legitimate aim.70 Regarding proportionality, the Court held that ‘measures … was a consequence of domestic law or of the necessity to comply with international legal obligations [like the EEC regulation in question]’. 68. Al-Adsani v. United Kingdom, Application no. 35763/97, European Court of Human Rights, Grand Chamber, Judgment (21 November 2001). 69. Ibid., at para. 53. 70. Ibid., at para. 54. – One could argue that the phrase ‘to promote comity and good relations between States through the respect of another State’s sovereignty’ is redundant, because ‘complying with international law’ (especially the law of immunity) always ‘promote[s] comity and good relations between States’. However, it seems that the Court sees compliance with international law and the ‘promotion of comity and good relations between States’ as separate legitimate aims. This becomes apparent in the slightly different formulation in the simultaneous McElhinney judgment, infra note 81, where the Court speaks of ‘compliance with generally recognised principles of international law and the promotion of harmonious relations, mutual respect and understanding between nations’ as the legitimate aim (at para. 28) (emphasis added). It is further confirmed by Cudak and Sabeh el Leil, infra note 83, where the Court denied an immunity under international law, and nonetheless accepted a legitimate aim. This could be explained by the view that the granting of immunity serves the legitimate purpose of promoting ‘comity and good relations between States’ or ‘harmonious relations, mutual respect and understanding between nations’ even where it is not mandated

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which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to a court as embodied in Article 6 § 1’.71 This amounts to a presumption of proportionality. Accordingly, one would have expected the Court to examine whether it was justified to overturn this presumption in the present case. In reality, it confined itself to examining whether international law provided for an immunity of states against claims for damages for torture.72 When it came to a positive result, it jumped directly to the conclusion that there was no ‘unjustified restriction’ of Article 6.73 It therefore appears that observing an internationally mandated immunity in itself justifies a restriction of the right of access to a court, both under the headings of legitimate aim and of proportionality. It is at least unclear and hard to imagine what special circumstances could override this ‘principle’, if the quest of a torture victim to seek compensation cannot. In effect, the approach adopted by the Court means that the law of state immunity prevails over the ECHR. This reading is confirmed by other immunity cases, decided simultaneously with or subsequently to Al-Adsani: In Kalogeropoulou v. Greece and Germany, the Court found that international law provided for state immunity from civil claims or enforcement proceedings such as the one at issue.74 Accordingly, it saw a legitimate aim in the granting of such an immunity by Greece to Germany. Concerning the proportionality of this measure, the Court, while repeating the ‘in principle’-formula from Al-Adsani, again simply examined the state of international law, and when it came to the above-mentioned result, held that ‘[a]ccordingly’, there had been no ‘unjustified interference with [the] right of access to a tribunal’.75 This confirms that to satisfy the criterion of ‘proportionality’ (as well as that of a legitimate aim), it is sufficient for a measure to be required by international customary law. In Fogarty v. the United Kingdom, the Court noted that there was no unanimous view on the immunity of states from claims related to employment in a foreign mission or embassy, and left the issue undecided.76 Nonetheless, it affirmed without hesitation that the United Kingdom had pursued a legitimate

71. 72. 73. 74. 75. 76.

by international law. An alternative explanation could be that the Court accepted that the defendant states had acted in the (false) belief that international law obliged them to grant an immunity, which should also constitute a legitimate aim. Al-Adsani, supra note 68, at para. 56. Ibid., at paras 57–66. Ibid., at para. 67. Kalogeropoulou v. Greece and Germany, Application no. 59021/00, European Court of Human Rights, Decision (12 December 2002), section D.1.a of the part ‘The law’. Ibid. Fogarty v. the United Kingdom, Application no. 37112/97, European Court of Human Rights, Grand Chamber, Judgment (21 November 2001), at para. 37.

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aim by granting immunity to the United States,77 maybe because the UK could plausibly assert a belief to be obliged to do so by international law, or because even without such belief, the granting of an immunity serves to promote ‘comity and good relations between States’78. Concerning proportionality, the Court again simply examined the state of international law, and when found it to be ambiguous, it held without anything more that the United Kingdom had not ‘exceeded the margin of appreciation allowed to States in limiting an individual’s access to court’.79 It appears that to be ‘proportional’, it suffices if a measure is arguably intended to implement international law. In McElhinney v. Ireland, the Court also left open the existence of an immunity under international law for claims of the kind at issue.80 Still, as in Fogarty, it did not hesitate to accept the legitimacy of the aim and the proportionality of the Irish decision to accord immunity, on the basis of not much more than the possibility that it was mandated by international law.81 In the more recent cases of Cudak v. Lithuania and Sabeh el Leil v. France, the Court came to the conclusion that the defendant states had granted immunities even though they had not been required to do.82 Nonetheless, the Court accepted that the defendant states had pursued a legitimate aim.83 Under the heading of ‘proportionality’, the Court then examined whether international law did prescribe an immunity in the cases at hand; as mentioned, with a negative result, leading to the declaration of a violation of Article 6 ECHR.84 This implies again that proportionality and compliance with international law are congruent, at least when the state of international law is clear. The case law described can be summarized as follows: Wherever a state has rejected a suit out of an at least arguable duty under the international law of state immunity, the ECtHR considers the restriction of the right of access to a court justified. Where, on the other hand, clearly no such duty existed, the restriction is considered a violation of Article 6. At least de facto, this corresponds to a priority of the law of state immunity over the ECHR. This solution has much to be said for. The customary law on state immunity predates the ECHR, and it is universally valid, not only for the members of the 77. 78. 79. 80. 81. 82. 83. 84.

Ibid., at para. 34. See note 70 above. Fogarty, at paras 35–39. McElhinney v. Ireland, Application no. 31253/96, European Court of Human Rights, Grand Chamber, Judgment (21 November 2001), at para. 38. Ibid., at paras 35–40. The Court also pointed to the possibility of bringing an action against the UK (the state protected by the presumed immunity) in this state itself (at para. 39). Cudak v. Lithuania, Application no. 15869/02, European Court of Human Rights, Grand Chamber, Judgment (23 March 2010); Sabeh el Leil v. France, Application no. 34869/05, European Court of Human Rights, Grand Chamber, Judgment (29 June 2011). For an explanation, see note 71 above. Cudak, supra note 82, at paras 62–74; Sabeh el Leil, supra note 82, at paras 56–67.

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ECHR. It is comparable with a preceding treaty with third states like the Four Powers agreement in the Hess case. Third states would hardly accept that their rights should be diminished by a subsequent agreement to which they are not parties and which therefore is res inter alios acta for them. 2.2.4. Conclusion Contrary to the expectation that a treaty body inevitably gives priority to the agreement which it is charged to implement, the ECHR organs have not asserted a general primacy of the Convention. Instead, the Commission in the Hess case can at least be understood to have granted exactly this priority to earlier treaties with third states, and the ECtHR, at least in practical terms, does the same with regard to secondary EU law and the customary law of immunity. In this respect, the ECHR organs are even more deferential to other international law vis-à-vis the ECHR than the member states. However, the Court clearly asserts a priority of the Convention over later treaties. This case law is in line with pronouncements of the Court that the Convention should be interpreted in light of and in harmony with other rules of international law.85 With regard to earlier customary law and earlier treaties with third states, it also corresponds to an arguable conflict rule under general international law, which would grant priority to the earlier norm.86

3. Possible Conflict Rules under International Law Supporting the ECHR Practice 3.1. Sources for Conflict Rules After sketching the practice of states and ECHR organs on collisions between the Convention and other treaties, this section will now explore whether international law contains rules for such conflicts, either backing or contradicting the

85. Al-Adsani, supra note 68, at para. 55 (‘The Court must … take the relevant rules of international law into account … The Convention should so far as possible be interpreted in harmony with other rules of international law’); Al-Saadoon, supra note 23, at para. 126; Capital Bank AD, supra note 47, at para. 111; Cudak, supra note 82, at para. 56; Demir and Baykara v. Turkey, Application no. 34503/97, European Court of Human Rights, Judgment, Grand Chamber (12 November 2008), at para. 67 (‘[T]he Court has never considered the provisions of the Convention as the sole framework of reference for the interpretation of the rights and freedoms enshrined therein. On the contrary, it must also take into account any relevant rules and principles of international law applicable in relations between the Contracting Parties’ – but note that obligations owed towards third states would not be covered by this formula); Sabeh el Leil, supra note 82, at para. 48. 86. See section 3.3.1.2.2. infra.

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practice described. These rules will be looked for in treaty law, customary law and general principles of law. As to treaty law, the only instrument potentially containing general rules on treaty conflicts is the Vienna Convention on the Law of Treaties. Its Article 30(4) (b), dealing with incompatible treaties between partially identical parties, will be explored in section 3.3.1.1 below. While identifying relevant treaty law does not pose any difficulties in the present context, establishing customary law is more challenging. Customary international law develops out of the essentially uniform practice of a sufficient number of states over a usually prolonged period of time, performed out of a belief that it is obligatory (opinio iuris). The required uniformity is especially lacking if the practice of large and important states,87 and of states specially affected by relevant situations (in this case, treaty conflicts), is contrary to the asserted rule. Thus, to establish customary law from the ground up, it would be necessary to examine the practice of a great number of states, especially the larger ones. This would go beyond the scope of this article. Instead, it will rely mainly on pronouncements by state officials and scholars, which at least provide strong indications about the state of international law; the official statements, as verbal acts, also contribute by themselves to the development of customary law. A particularly rich source for official and semi-official statements about the law of treaty conflicts are the preparatory works for the VCLT. In addition, reference will be made to actual state practice wherever it is available (a subset of actual practice, the one about conflicts between the ECHR and other treaties, has already been surveyed in section 2). The third source of international law, general principles of law, are mainly derived from rules or principles that can be found in all or at least the major national legal systems; these principles are then transposed and adapted to the inter-state level.88 In addition, general principles of law are sometimes considered to include principles necessary for every legal system, principles of ‘legal logic’, and principles which can be derived inductively from more specific rules of international law.89 The distinction between customary law and general principles of law can be difficult, as both of them basically rest on widespread acceptance and state practice. 87. See United States v. Yousef, 327 F.3d 56 (2d Cir. 2003), at 92 n.25: ‘While it is not possible to claim that the practice or policies of any one country, including the United States, has such authority that the contours of customary international law may be determined by reference only to that country, it is highly unlikely that a purported principle of customary international law in direct conflict with the recognized practices and customs of the United States and/or other prominent players in the community of States could be deemed to qualify as a bona fide customary international principle.’ 88. See, in detail, Fabián O. Raimondo, General Principles of Law in the Decisions of International Criminal Courts and Tribunals (Nijhoff: Leiden and Boston, 2008) at 45–72. 89. See Pauwelyn, Conflict, supra note 5, at 125–26; see also Raimondo, Principles, supra note 88, at 1, 46.

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For present purposes, however, it is not necessary to try to draw a clear line between them is.90 It shall be sufficient if it can be established that a treaty conflict rule is generally recognized by states as a rule of international law; whether it is part of customary law or the general principles of law is of no practical importance. Besides, it is unlikely that treaty conflict rules should exist in the form of general principles of law, even though some authors think differently91. Due to the fundamental structural differences between the international and the national legal systems, intra-state rules on norm conflicts are hardly transposable to the inter-state level,92 and the other categories of general principles of law will not provide solutions for conflicts of the kind examined here either. For this reason and for the sake of simplicity, this article will only speak of customary law when it refers to rules that could either be customary law or general principles of law.

3.2 Excursus: Conflict Rules for Treaties Between Identical Parties Before turning to the specific topic of this article – conflicts between treaties with only partially identical parties –, it is useful to look at conflicts between treaties with identical parties (AB/AB type). The inclusion of this closely related – and considerably less complex – subtopic gives a more complete picture of treaty conflicts and allows seeing the specific difficulties of ABC/AD conflicts more clearly. It is particularly useful to recognize the appropriate scope of the lex posterior and lex specialis principles, which are often falsely extended to conflicts of

90. For their distinction in detail, see Pauwelyn, Conflict, supra note 5, at 131–32. 91. Hans Aufricht, ‘Supersession of Treaties in International Law’, 37 Cornell Law Quarterly (1952) 655–700 at 655, considers lex posterior a general principle of law, applicable to treaty conflicts. Jenks, ‘Conflicts’, supra note 5, at 406, wants to develop a system of treaty conflict rules on the basis of general principles of law, drawing mainly on ‘national practice in regard to conflicts between statutes [and] the principles applied in reconciling general and subordinate legislation, federal and State legislation under federal systems’ (‘as far as they are relevant or suggestive of analogies’). Jorge Cardona Lloréns, ‘Le rôle des traités’, in Rosario Huesa Vinaixa and Karel Wellens (eds), L’influence des sources sur l’unité et la fragmentation du droit international (Bruylant: Brussels, 2006) 25–51 at 44 considers ‘certain general principles of law’ following from ‘juristic logic’, like the lex specialis principle, a source of conflict rules, but with due regard to the ‘particular characteristics of international law’. Lastly, Lauterpacht claimed that his rule of the nullity of the later treaty (text accompanying note 133 below) ‘follow[ed] cogently from general principles of law governing the subject, from requirements of international public policy and the principle of good faith’ (emphasis added) (YILC 1953 II, at 156; see also ibid., at 158–59). 92. Seyed Ali Sadat-Akhavi, Methods of Resolving Conflicts Between Treaties (Nijhoff: Leiden and Boston, 2003) at 190–91; Suzanne Bastid, Les traités dans la vie internationale (Économica: Paris, 1985) at 164 (‘[L]es règles de droit interne sur la compatibilité des normes ne peuvent être transposées que dans des cas exceptionnels dans la vie internationale’); Wilhelm Heinrich Wilting, Vertragskonkurrenz im Völkerrecht (Heymanns: Köln, Berlin, Bonn and München, 1996) at 78–79.

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the ABC/AD type when the fundamental difference between the two types of conflicts is overlooked. According to Article 30(3) VCLT, a later treaty prevails over an earlier one between the same parties on the same subject matter (lex posterior derogat legi priori). To override this principle, Article 30(2) VCLT requires the later treaty to ‘specify’ that it cedes priority to the earlier one. If this is understood literally, only an express treaty clause could satisfy this requirement; the mere will of the parties to reserve the earlier agreement would be insufficient.93 This understanding of Article 30(2) might appear to be supported by reading it against the countless other provisions in the Convention that plainly speak of the ‘intent’, ‘consent’ or ‘agreement’ of the parties, or even specifically of the ‘intention’ of the parties ‘[as it] appears from the … treaty or is otherwise established’94. However, the drafting history shows that the ILC had no intention to attach such a limitative meaning to Article 30(2); rather, the provision has to be understood as only exemplary.95 Indeed, it would be pointless to try to impose a priority rule on treaty parties against their will, only because they did not express their consensus to subordinate the more recent treaty in writing. And even if their original consensus later broke down, it would go against pacta sunt servanda and good faith if the party that changed its mind could rely on a purported defect of form in the initial agreement.96 Therefore, it is with good reason that the majority of the doctrine holds that whether expressed or implied, the will of the parties decides the priority question;97 this may be called the ‘voluntarist principle’. To reconcile 93. See Sadat-Akhavi, Methods, supra note 92, at 205. 94. See Arts 28, 29, 44(3)(b), 59(1)(a) and 59(2); see also Arts 12(1)(a)+(b), 13, 14(1)(a)+(b), 15(a)+(b), 22(3), 25(2), 33(1)+(2), 44(1), 70(1) and 72(1) (substantially the same). 95. See Sadat-Akhavi, Methods, supra note 92, at 205–06. 96. See also Art. 3(a) VCLT (though only applicable to written treaties, the Convention does not affect the legal force of agreements in other forms). 97. See, in general (and without always taking a clear position themselves), Daillier, Forteau and Pellet, Droit international public, supra note 57, at 292–93 (‘méthode subjective’), 297; Arnold Duncan McNair, The Law of Treaties (Oxford University Press, 1961) at 219; Pauwelyn, Conflict, supra note 5, at 328, 330–31, 380, 388 (‘principle of contractual freedom of states’); Paul Reuter, Introduction au droit des traités (3rd edn, Presses Universitaires de France: Paris, 1995) at 119, para. 201 (‘principe de l’autonomie de la volonté’); Charles Rousseau, Principes généraux du droit international public (1 vol. published, Pedone: Paris, 1944) at 812 (‘En l’espèce c’est la volonté des parties qu’il y a lieu d’interpréter’); Sadat-Akhavi, Methods, supra note 92, at 63, 205–06, 211–12, 243, 249–50; Humphrey Waldock, Third Report on the Law of Treaties, YILC 1964 II, at 34–35, Art. 65(2) (‘Whenever it appears from the terms of a treaty, the circumstances of its conclusion or the statements of the parties that their intention was that its provisions should be subject to their obligations under another treaty, … the other treaty shall prevail’), 37–38, para. 12; Vanderbruggen, Above and Beyond the Treaty, supra note 5, at 63–64 (‘The phrase “when the treaty specifies” of Art. 30 (2) VCLT must be given a wide interpretation. “Specifies” does not mean “stipulate explicitly” or even “in writing”. It does not exclude that the intent of the parties on this matter is not explicit and can only be established by using the general rule of interpretation or even supplementary

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this common-sense position with the wording of Article 30(2) and (3) VCLT, it has been creatively suggested that two treaties are ‘compatible’ if the later one is supposed to give way to the earlier.98 The lex posterior rule thereby loses its quality of an (independent) conflict rule, but it keeps an important role as a presumption or an aid to determine the will of the parties: Usually, they intend to replace the provisions of an older treaty with those on the same subject matter in a later one, but this presumption can be rebutted by proof of a contrary intention.99 As a presumption, lex posterior is complemented by lex specialis (lex specialis derogat legi generali / generalia specialibus non derogant).100 This is not a conflict rule in itself either, but expresses the (again: rebuttable) experience that a general treaty is often not meant to override a more special one.101 If in a concrete case, means of interpretation’), 70, 72–73, 102; YILC 1963 I, at 88, para. 15 (Mustafa Kamil Yasseen); 1964 I, at 120, para. 13 (Alfred Verdross); 1964 I, at 127, para. 8 (Paul Reuter); Zuleeg, ‘Vertragskonkurrenz’, supra note 5, at 257; and specifically with regard to lex posterior and lex specialis (as aids to determine the – decisive – will of the parties), see notes 100 and 102 below. The voluntarist principle also corresponds to the rules on termination of a treaty by way of conclusion of a later treaty on the same subject-matter, where it is sufficient that ‘it appears from the later treaty or is otherwise established that the parties intended that the matter should be governed by that treaty’ (Art. 59(1)(a) VCLT). – Contra Felipe Paolillo, ‘Art. 30’, in Olivier Corten and Pierre Klein (eds), Les conventions de Vienne sur le droit des traités: commentaire article par article (3 vols, Bruylant: Brussels, 2006), vol. II, 1247–83 at 1271 (‘Les termes “[l]orsqu’un traité précise” ... ne laissent aucun doute quant au fait que le rapport de subordination ... d’un traité avec un autre traité doit être explicitement établi’); Jenks, ‘Conflicts’, supra note 5, at 426 (conflicts between treaties ‘must be determined on the basis of law rather than intention’ – but it is unclear whether this should also be true for conflicts between treaties with identical parties); Aufricht, ‘Supersession’, supra note 91, at 698 (apparently applying lex specialis and lex posterior as rules of law, independently of the will of the parties). – This leaves open the question of how to deal with a situation where the intention of the parties cannot be established by any means. In this case, the hypothetical will of the parties should be decisive (cf. Sadat-Akhavi, Methods, supra note 92, at 210–12, 249, who in such cases whould normally apply the lex posterior rule as corresponding most likely to the will of the parties [see note 108 below]). 98. Reuter, Introduction, supra note 97, at 119, para. 201. 99. ILC, Fragmentation, supra note 3, at 119, para. 230, and 125, para. 243; see also Pauwelyn, Conflict, supra note 5, at 331, 388. Cf. also Aufricht, ‘Supersession’, supra note 91, at 657 (lex posterior in cases of ‘implied’ or ‘tacit’ supersession of an earlier treaty), with the contradictory position ibid., at 659 (failure to insert conflict clauses in a later treaty indicates the intent to uphold the prior treaty). 100. For further elaboration on the lex specialis principle, see section 3.3.2 infra. 101. Michael Akehurst, ‘The Hierarchy of the Sources of International Law’, 47 British Year Book of International Law (1974/75) 273–85 at 273, 274 above n.1; McNair, The Law of Treaties, supra note 97, at 219; Pauwelyn, Conflict, supra note 5, at 388 (rejecting lex specialis as a ‘selfstanding legal norm[]’ and limiting it to a ‘practical method[] in the search for the “current expression of state consent”’) – but see also ibid., at 331, 366 (seeing lex specialis as ‘either an element to be looked at in determining the “current expression of state consent” or a principle of customary international law in its own right’) (emphasis added), 406 (same); Charles Rousseau,

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this leads to the precedence of an earlier, more specific treaty, the question of the compatibility with Article 30(3) and (2) VCLT returns. Some would again argue that these two treaties are in fact ‘compatible’; others have suggested that due to their different degrees of concreteness, a general and a special treaty do not ‘relate to the same subject matter’ in the sense of Article 30 VCLT, so that this provision would not be applicable at all,102 but this is quite far-fetched as well103. If a later, more specific treaty conflicts with an earlier general one, the interplay of the lex specialis and the lex posterior presumptions, leading to the same result, poses no problem. In the reverse situation, the question of priority among the presumptions arises. Castberg gives the example of a treaty on a particular subject with an arbitration clause, followed by a later treaty between the same parties whereby they agree to submit all their legal disputes to an international court. For Castberg, it cannot be supposed that the parties intended to replace the arbitration clause, specifically fitted to particular disputes, with the new general rule.104 ‘De la compatibilité des normes juridiques contradictoires dans l’ordre international’, Revue générale de droit international public (1932) 133–92 at 177–78. This so-called ‘voluntarist understanding of lex specialis’ (see ILC, Fragmentation, supra note 3, at 37, paras 60–61; see also ibid., at 62, para. 114) is also supported by the fact that lex specialis is not mentioned as a conflict rule in the VCLT at all. – Authors sometimes speak of lex specialis as an aid of interpretation (Zuleeg, ‘Vertragskonkurrenz’, supra note 5, at 257; ILC, Fragmentation, supra note 3, at 38–40, paras 65 and 67), but that is not to the point, because almost always, there will be no (conflict) clause which could be ‘interpreted’. Instead, the (tacit or even hypothetic) will of the parties has to be ascertained, which can hardly be called ‘interpretation’. 102. United Nations Conference on the Law of Treaties, Second Session, Vienna, 9 April – 22 May 1969, Official Records, Summary records of the plenary meetings and of the meetings of the Committee of the Whole, UN Doc. A/CONF.39/11/Add.1, at 222, para. 41 (Ian Sinclair), 253, para. 41 (Humphrey Waldock); Anthony Aust, Modern treaty law and practice (2nd edn, Cambridge University Press, 2007) at 229; Léna Gannagé, La hiérarchie des normes et les méthodes du droit international privé (LGDJ: Paris, 2001) at 255–56; Paolillo, ‘Art. 30’, supra note 97, at 1263; Reuter, Introduction, supra note 97, at 119, para. 201; Ian Sinclair, The Vienna Convention on the Law of Treaties (2nd edn, Manchester University Press, 1984) at 98; Alfred Verdross and Bruno Simma, Universelles Völkerrecht (3rd edn, Duncker & Humblot: Berlin, 1984) at 501–02, para. 786; Zuleeg, ‘Vertragskonkurrenz’, supra note 5, at 257. 103. Against such an interpretation, Pauwelyn, Conflict, supra note 5, at 364–65 (but he agrees that Art. 30 VCLT does not stand in the way of an application of the lex specialis principle, if this is what the parties wanted: at 406), and Wilting, Vertragskonkurrenz, supra note 92, at 88–89. 104. Frede Castberg, ‘La méthodologie du droit international public’, 43 Recueil des Cours (1933) 313–83 at 334. – For similar examples and positions, see Law of Treaties Conference Records 2nd Sess., supra note 102, at 222, para. 41 (Ian Sinclair) (if a convention on liability in the field of nuclear energy with provisions on the recognition of corresponding judgments is followed by a general treaty on the recognition of judgments, the prior treaty is still applicable in its field because of its special nature), 253, para. 37 (Mustafa Kamil Yasseen) (‘If a small number of States concluded a consular convention granting wide privileges and immunities, and those same States later concluded with other States a consular convention having a much larger number of parties but providing for a more restricted regime, the earlier convention would continue to govern relations between the States parties thereto if the circumstances or the intention of the parties justified its maintenance in force’).

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Thus, he gives precedence to the lex specialis over the lex posterior presumption. However, one could equally well imagine that the later treaty was in fact meant to override all previous dispute settlement provisions, or to complement them, permitting a choice between the procedures105. It all depends on the (actual or presumptive) will of the parties; there is no abstract priority between lex specialis and lex posterior, even though some authors tend to favour either the former106 or the latter107 in case of doubt. It is also possible that apart from lex specialis and lex posterior, other priority rules discussed below come into play – again solely as aids to determine the presumptive will of the parties. For instance, if states known to attach great weight to human rights conclude a treaty which conflicts with a prior human rights agreement between them, it could be presumed that they did not want the later treaty to be applied to the extent of the conflict.

3.3. Possible Conflict Rules for ABC/AD Conflicts 3.3.1. Lex prior / lex posterior In this section, it will be examined whether the VCLT or customary international law offer any temporal priority rules (lex posterior derogat legi priori v. prior in tempore, potior in iure/lex prior derogat legi posteriori) for treaty conflicts of the ABC/AD type. 3.3.1.1. Article 30(4)(b) VCLT

Article 30(4)(b) VCLT provides that in a conflict between treaties relating to the same subject matter with only partially identical parties (AB/AC, ABC/AD etc.), ‘as between a State party to both treaties [A] and a State party to only one of the treaties [B, C and D], the treaty to which both States are parties governs their mutual rights and obligations’. This corresponds to the principles of pacta sunt

105. For the latter solution, see Sadat-Akhavi, Methods, supra note 92, at 232 (‘The principle of cumulative application of instruments concerning dispute settlement’); Vanderbruggen, Above and Beyond the Treaty, supra note 5, at 76. But Sadat-Akhavi himself rejects that rule if the later treaty sets up a mandatory mode of dispute resolution; see ibid., at 238–39. 106. Aufricht, ‘Supersession’, supra note 91, at 698 (see also Pauwelyn, Conflict, supra note 5, at 405 n.162); Ignaz Seidl-Hohenveldern and Torsten Stein, Völkerrecht (10th edn, Heymanns: Köln, Berlin, Bonn and München, 2000) at 95, no. 94 (a later treaty should be interpreted so as to leave unaffected a narrower, more detailed earlier treaty). 107. Sadat-Akhavi, Methods, supra note 92, at 246–47 (in the absence of any indications as to the will of the parties, the later treaty should prevail, as corresponding most likely to this will); similarly Pauwelyn, Conflict, supra note 5, at 405–09, 437–39 (lex posterior as the ‘rule of first resort’ [at 408, 439], or even as always prevailing over lex specialis [at 409, 438]), and Ian Sinclair, The Vienna Convention, supra note 102, at 93. Daillier, Forteau and Pellet, Droit international public, supra note 57, make contradictory statements: at 297, they favour (slightly) lex specialis over lex posterior; at 298, they do the opposite, referring to the ‘implicit will’ of the parties, which lex posterior is supposed to reflect best.

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servanda108 and pacta tertiis nec nocent nec prosunt109: The treaties with B/C and D are both binding for A in the respective relation (pacta sunt servanda), and the positions of B/C and D are not impaired by the treaties concluded by A with other states (pacta tertiis). Thus, Article 30(4)(b), rather than offering A an escape route from the dilemma into which it has put itself, confirms it’s ‘double bind’. Particularly, the provision does not indicate that one of the treaties should be given priority.110 Under the VCLT, it is rather up to A to decide which of the treaties it prefers to perform, thereby exposing itself to liability under the other treaty.111 This corresponds to the ‘principle of political decision’ (section 3.3.8 below). 3.3.1.2. Customary Law and Doctrine

The fact that the VCLT does not contain a temporal (or any other) priority rule does not necessarily mean that no such rule exists; under customary international law, one treaty could still enjoy priority. Still, it indicates that such a rule is at least not too obvious or universally accepted; otherwise, it would be hard to understand why it was not incorporated into the VCLT, like the largely uncontroversial lex posterior principle for treaties with identical parties (Article 30(3)). Indeed, the travaux préparatoires show that while the special rapporteurs’ drafts had provided 108. Georg Dahm, Jost Delbrück and Rüdiger Wolfrum, Völkerrecht (2nd edn, 3 vols, De Gruyter: Berlin, 1989–2002), vol. I/3: Die Formen des völkerrechtlichen Handelns; Die inhaltliche Ordnung der internationalen Gemeinschaft (2002), at 694; Daillier, Forteau and Pellet, Droit international public, supra note 57, at 302; Sadat-Akhavi, Methods, supra note 92, at 64. 109. Aust, Modern treaty law, supra note 102, at 224; Daillier, Forteau and Pellet, Droit international public, supra note 57, at 302; Karl Doehring, Völkerrecht (C.F. Müller: Heidelberg, 1999) at 150–51, para. 349; Taslim Olawale Elias, The Modern Law of Treaties (Oceana: Dobbs Ferry, and Sijthoff: Leiden, 1974) at 55; Robert Jennings and Arthur Watts (eds), Oppenheim’s International Law (3 vols, vols I/1 and I/2–4 in 9th edn, Longman: Harlow, 1992), vol. I/2–4, at 1212, para. 590; Nele Matz-Lück, ‘Conflicts between Treaties’, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, online edition, , at para. 17; Paolillo, ‘Art. 30’, supra note 97, at 1275, para. 47; Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Nijhoff: Leiden and Boston, 2009), ad art. 30 at para. 15; Zuleeg, ‘Vertragskonkurrenz’, supra note 5, at 249. 110. For the sake of completeness, it shall be mentioned that a few voices have assumed that this provision gives priority to a bilateral treaty over the ECHR: See the decision of the Swiss Federal Administrative Tribunal of 15 July 2010, supra note 40 and accompanying text; Begdache, Répudiation, supra note 27, at 224–25, 227; Gannagé, La hiérarchie, supra note 102, at 254. They appear to believe that the bilateral treaty is, due to the smaller number of parties, lex specialis vis-à-vis the Convention and that Art. 30(4)(b) establishes such a lex specialis rule. 111. See Eric Suy, ‘The Constitutional Character of Constituent Treaties of International Organizations and the Hierarchy of Norms’, in Ulrich Beyerlin et al. (eds), Recht zwischen Umbruch und Bewahrung. Festschrift für Rudolf Bernhardt (Springer: Berlin, 1995) 267–77 at 276–77; Pauwelyn, Conflict, supra note 5, at 383–84, 426–27; Sadat-Akhavi, Methods, supra note 92, at 63–66, 72; Wilting, Vertragskonkurrenz, supra note 92, at 112–13; Zuleeg, ‘Vertragskonkurrenz’, supra note 5, at 268.

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for a priority of the earlier112 or even the nullity of the later treaty113, and some ILC members and Conference delegates adopted these positions114, the majority of them took no clear stance on the issue (apart from rejecting the nullity theory), instead contenting themselves with very general statements, implying or even explicitly stating that they did not recognize a priority rule – especially not a temporal one – under international law115. However, this should not discourage us from venturing to examine whether a priority rule based on the temporal succession of the treaties can nonetheless be found in customary international law, especially in view of the possibility that such a rule might have developed since the conclusion of the VCLT. 3.3.1.2.1. Nullity of the Later Treaty

Up to the middle of the 20th century, scholars usually regarded a treaty contradicting an earlier one as null and void, either because it was thought to have an impermissible or ‘immoral’ object, or because by entering a prior agreement, the state had lost the capacity to conclude a contradictory agreement.116 Such was the view of authors like Vattel117, Pufendorf118, Wolff119, Mably120, Klüber121, Phillimore122,

112. See note 153 below. 113. See notes 132–133 and section 3.3.3.2 below. 114. See notes 143 (second sentence) and 155 below. 115. See YILC 1966 I, pt. 2, at 102, para. 88 (Mustafa Kamil Yasseen) (‘He himself could not understand why priority should be given to the first treaty rather than the second’), para. 90 (Roberto Ago) (same). – For other voices rejecting a priority rule, see section 3.3.8 below. 116. For the theoretical underpinnings of the nullity theory, see Guyora Binder, Treaty Conflict and Political Contradiction. The Dialectic of Duplicity (Praeger: New York, 1988) at 39–42. 117. Emer de Vattel, Le Droit des Gens (2 vols, Leyden, 1758), vol. I, book 2, at paras 165, 315 (English translation in ‘Harvard Draft Convention on the Law of Treaties’, 29 American Journal of International Law [1935] [supp.] 653–1099 at 1025). 118. Samuel Pufendorf, De jure naturae et gentium libri octo (Hoogenhuysen: Amsterdam, 1688), book III, ch. VII, at para. 11. 119. Christian Wolff, Jus Gentium Methodo Scientifica Pertractatum (Halle, 1749) at 305–306, para. 383. 120. Gabriel Bonnot de Mably, Le droit public de l’Europe, fondé sur les traités (3rd edn, 3 vols, Compagnie des Libraires: Geneva, 1764) at 33–35. 121. Johann Ludwig Klüber, Droit des gens moderne de l’Europe (2 vols, Cotta: Stuttgart, 1819), vol I, at 228–29, para. 144 (a treaty violating the rights of third parties is ‘not binding’ because of ‘moral impossibility of performance’), 261, para. 164(e). 122. Robert Phillimore, Commentaries Upon International Law (3 vols, Johnson: Philadelphia, 1855), vol. II, at 91, para. 97.6.

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Martens123, Heffter124, Woolsey125, Field126, Fiore127, Oppenheim128, de Louter129, Hall130, Scelle131, Lauterpacht132, Fitzmaurice (in parts)133, and probably also of Bluntschli134. A few times, states have taken the same position: In its dispute with Nicaragua about the American-Nicaraguan Bryan-Chamorro Treaty of 1914, Costa Rica called this treaty null because of a conflict with the Nicaraguan-Costa-Rican Cañas–Jerez Treaty of 1858.135 The United States in its turn notified Japan and 123. Georg Friedrich de Martens, Précis du droit des gens moderne de l’Europe, (2nd edn, 2 vols, Guillaumin: Paris, 1864), vol. II, at 167, para. 53. 124. August Wilhelm Heffter, Das Europäische Völkerrecht der Gegenwart auf den bisherigen Grundlagen (5th edn, Schroeder: Berlin, 1867) at 159, para. 83. 125. Theodore D. Woolsey, Introduction to the Study of International Law (4th edn, Scribner and Armstrong, 1874) at 176, para. 101; see also ibid., at 186, para. 109. 126. David Dudley Field, Outlines of an International Code (2nd edn, Baker and Voorhis: New York, and Trübner: London, 1876) at 81, para. 198. 127. Pasquale Fiore, Il diritto internazionale codificato (2nd edn, Unione Tipografico-Editrice: Torino, 1898) at 266, para. 628(c); 271, para. 643; 288, para. 710; 289, para. 714. 128. Lassa Oppenheim, International Law: A Treatise (2 vols, Longmans and Green: London, 1905), vol. I: Peace, at 526–27, paras 501, 503. The current edition of this work from 1992 (cited supra note 109) leaves the question open (at 1214–15, para. 591). 129. Jan de Louter, Le droit international public positif (2nd edn, 2 vols, Oxford University Press, 1920), vol. I, at 480. 130. William Edward Hall, A Treatise on International Law (8th edn, A. Pearce Higgins ed., Oxford University Press, 1924) at 396–97, para. 112.6. 131. Georges Scelle, ‘Règles générales du droit de la paix’, 46 Recueil des Cours (1933) 327–703, at 471–76 (with the exception of status treaties, which he saw as hierarchically superior and which therefore were supposed to derogate also older treaties; see note 220 below). 132. See Art. 16 of Hersch Lauterpacht’s draft articles for the law of treaties as the first special rapporteur for the ILC, YILC 1953 II, at 93 (with a clarification in YILC 1954 II, at 133, 138, that the nullity should affect only the relevant provisions and not the whole treaty, if they were severable); see also note 92 above. For detailed discussions of Lauterpacht’s proposal, see Binder, Treaty Conflict, supra note 116, at 52–55; Klabbers, Treaty Conflict, supra note 24, at 71–74; Emmanuel Roucounas, ‘Engagements parallèles et contradictoires’, 206 Recueil des Cours (1987) 9–288 at 96–97; Jan B. Mus, ‘Conflicts Between Treaties in International Law’, Netherlands International Law Review (1998) 208–32 at 227–29; Sadat-Akhavi, Methods, supra note 92, at 66–67; Jenks, ‘Conflicts’, supra note 5, at 443; Pauwelyn, Conflict, supra note 5, at 425; Wilting, Vertragskonkurrenz, supra note 92, at 38–41, 92–94; Orakhelashvili, ‘Art. 30’, supra note 53, at 767–68; Zuleeg, ‘Vertragskonkurrenz’, supra note 5, at 248; Paolillo, ‘Art. 30’, supra note 97, at 1250–51. 133. See Art. 19 of Gerald Fitzmaurice’s draft articles for the law of treaties as special rapporteur for the ILC, YILC 1958 II, at 27–28, 44–45 (nullity for treaties conflicting with multilateral treaties of the ‘interdependent’ or ‘integral’ type; for details, see section 3.3.3.2 below). 134. See Johann Caspar Bluntschli, Das moderne Völkerrecht der civilisirten Staaten als Rechtsbuch dargestellt (Beck: Nördlingen, 1868) at 236–37, para. 414 (for French version, see ‘Harvard Draft’, supra note 117, at 1210, and Hall, Treatise, supra note 130, at 397 n.1). The passage could also be read to mean that a protest of a party to the older treaty ensures its priority, without in the strict sense nullifying the newer one. For a reading that Bluntschli meant nullity, see ‘Harvard Draft’, supra note 117, at 1025. 135. 11 American Journal of International Law (1917) at 181, 197, 202, 227. According to Christine Chinkin, Third Parties in International Law (Oxford University Press, 1993) at 74, the

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China in the famous Stimson note of 1932 that it does not ‘intend to recognize any treaty or agreement entered into between these governments, … which may impair the treaty rights of the United States … in China’;136 this policy apparently implied that such treaties were regarded as void or voidable137. Despite the long and once broad doctrinal support enjoyed by this theory, no national or international court has ever declared a treaty void on that basis.138 The only backing that it can muster from international case law, are a few individual opinions in the Oscar Chinn139 and the European Commission of the Danube140 cases before the PCIJ, which considered a later conflicting treaty void, but both nullity of the later treaty is also ‘the inevitable conclusion’ of the court’s holding in this case. Similarly, Rousseau, Principes généraux, supra note 97, at 803; the same, Droit international public (3 vols, Sirey: Paris, 1970–1983), vol. I: Introduction et sources (1970), at 162; and Seidl-Hohenveldern, ‘Widersprüchliche Verpflichtungen’, supra note 51, at 184, maintain that the court regarded Nicaragua legally incapable to conclude the later treaty because of its contradiction with the earlier one; this would entail its nullity as well. In truth, however, such a view is nowhere expressed in the judgment. The court only stated that concluding the later treaty violated the earlier one (11 American Journal of International Law [1917] at 210, 212, 228–29; see also Josef L. Kunz, ‘The Meaning and the Range of the Norm Pacta Sunt Servanda’, 39 American Journal of International Law [1945] 180–97 at 193 n.62: ‘[T]he Court decided that the Bryan-Chamorro Treaty was illegal, but not void’). This restraint was due to the fact that the United States were not subject to the jurisdiction of the court, so that it considered itself rightly incapable of adjudging the validity of the Bryan-Chamorro Treaty (see note 51 above). – It is, however, true that the court declared in a related dispute between Nicaragua and El Salvador that ‘Nicaragua lacks the legal capacity to alter by itself the status jure existing in the Gulf of Fonseca’ (11 American Journal of International Law [1917] 674 at 728), which Nicaragua had attempted to do by granting rights in the Gulf to the United States in the Bryan-Chamorro Treaty. But this rested on the fact that the Gulf was commonly owned by Nicaragua, El Salvador and Honduras (based on historic rights, not a treaty), so that indeed Nicaragua alone was incapable of granting a right (in rem) to the United States. It does not mean that Nicaragua would have been incapable of concluding a purely obligatory (instead of a dispositive) treaty with the United States, conflicting with its obligations towards El Salvador and Honduras, all the more so if these obligations were only contractual as well. 136. Note of January 7, 1932, 26 American Journal of International Law (1932) 342, also reproduced in Oppenheim’s International Law, supra note 109, vol. I/1, at 184, para. 54. 137. See 26 American Journal of International Law (1932) at 344, 346–47. 138. Julio Barberis, ‘Le concept de “traité international” et ses limites’, 30 Annuaire français de droit international (1984) 239–70 at 261–62; Klabbers, Treaty Conflict, supra note 24, at 61; MatzLück, ‘Conflicts between Treaties’, supra note 109, at para. 17. For fairness, it must be added that at least what concerns international tribunals, these have apparently never been ‘directly compelled to pass upon the question of the effect of conflicts or incompatibility [with other treaties or international law] upon the validity of a treaty’ (McNair, The Law of Treaties, supra note 97, at 214), so that this case law (or the absence thereof ) not decisive in itself. 139. The Oscar Chinn Case (UK/Belgium), PCIJ Series A/B, No. 63 (1934), Separate Opinions of Judges van Eysinga, at 131, and Schücking, at 148. 140. Jurisdiction of the European Commission of the Danube between Galatz and Braila, Advisory Opinion, PCIJ Series B, No. 14 (1927), Observations by Judge Nyholm, 71 at 73, and maybe also the Dissenting Opinion of Judge Negulescu, 84 at 129.

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times, the majority did not follow them141. Anyway, these cases concerned inter se agreements,142 which are not necessarily subject to the same rules as conflicts of the ABC/AD type. In addition to the fact that the nullity theory is not advocated by writers anymore at all, this lack of supporting case law makes it very unlikely that the theory reflects (current) international law. The VCLT suggests the same conclusion: If Article 30(4)(b) states that the rights and obligations of the parties to the earlier and the later treaty are each governed by the respective treaties, it implies that the treaties are both valid. The discussions during the elaboration of the VCLT clearly show that this was indeed the opinion of the large majority of state representatives.143 3.3.1.2.2. Priority of the Earlier Treaty

Up to at least 1935, the great majority of authors who did not go so far as to support the nullity theory, at least advocated the lex prior rule.144 This was the 141. In both cases, the majority did not explicitly reject or even examine the nullity argument. In Oscar Chinn, it contended itself with the observation that the parties to the dispute had agreed that their legal relationship should be governed by the later treaty (PCIJ Series A/B, No. 63 [1934] at 79–80); similarly, in European Commission of the Danube, it did not admit the argument that the later treaty might be void, ‘as all the Governments concerned in the present dispute have signed and ratified both’ treaties (PCIJ Series B, No. 14 [1927] at 23). Most authors therefore regard these opinions as inconclusive for this issue (see Binder, Treaty Conflict, supra note 116, at 24). However, on the assumption that a court has to consider the nullity of a legal act ex officio, some authors have seen them as implicit rejections of the nullity theory (e.g., Humphrey Waldock in his second and third reports on the law of treaties, YILC 1963 II, at 56–57, and 1964 II, at 41–42; see Binder, Treaty Conflict, supra note 116, at 24, 174 n.296). 142. To be precise, in Oscar Chinn, the later agreement included one additional party (Japan) that was not bound by the previous treaty; but because the parties to the dispute (the United Kingdom and Belgium) were parties to both treaties, the Court could certainly treat the case as an inter se situation. 143. See YILC 1963 II, at 53, Art. 14(2)(a); 1963 I, at 202, para. 75 (finding ‘the idea of nullity attractive from the academic point of view, but it did not reflect the present position in international law’); 1964 II, at 35, 44; 1964 I, at 121, paras 22 and 25 (always Humphrey Waldock); 1963 I, at 88, paras 17–18; 1964 I, at 122, para. 33 (Mustafa Kamil Yasseen); 1963 I, at 89, paras 26–27; 1964 I, at 122, para. 30 (Antonio de Luna); 1963 I, at 91, para. 52, and at 200, paras 49–50, 52 (Roberto Ago), 91, para. 55; 1966 I, pt. 2, at 101, para. 84 (Alfred Verdross); 1963 I, at 91–92, para. 60 (André Gros), 200, para. 56 (Milan Bartoš); 1964 I, at 123, para. 47 (Herbert W. Briggs), 126, para. 4 (José M. Ruda), 127, para. 9 (Paul Reuter) (all rejecting the nullity of the later treaty). Contra YILC 1963 I, at 91, para. 57 (Radhabinod Pal) (conflict with a prior treaty ‘at some points touched upon the issue of validity’ of the later one), 197, para. 19 (Grigori Tunkin) (voidness of the later treaty; but see also notes 155 and 206 infra for a different position of this Soviet representative); 1964 I, at 120, para. 20 (Eduardo Jiménez de Aréchaga). 144. In 1935, the ‘Harvard Draft’, supra note 117, found it the ‘unanimous’ view of writers that the earlier treaty should prevail (by way of its priority or of the nullity of the later treaty) (at 1025). One exception might be Henry Bonfils, Manuel de droit international public (4th edn,

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position of Calvo145, Pradier-Fodéré146, Wright147 and Wilson148, as well as of the Harvard Draft Convention on the Law of Treaties149. As a general principle, Grotius too appeared to favour a primacy of the earlier treaty.150 However, a state bound by military alliances with several states was not required to fulfil any of them in a war between the allies.151 Grotius does not give any reasons why in this particular situation the conflicting treaty obligations should ‘neutralize’ each other – in the very sense of the word. Apparently he borrowed this proposition from Gentili,152 who apart from this special case also displayed a preference for the earlier treaty. During the travaux préparatoires to the VCLT, Humphrey Waldock, the fourth and last special rapporteur of the ILC, suggested that an earlier treaty should prevail over a conflicting later one.153 Even though several representatives spoke out in favour of this proposal or otherwise of a priority of the earlier treaty154, others dismissed that idea155; in the end it was, as we have seen, not included in Paul Fauchille ed., Arthur Rousseau: Paris, 1905) at 477, para. 855.D, for whom apparently both conflicting treaties would be null, or at least would not have to be performed. 145. Charles Calvo, Le droit international theorique et pratique (6th edn, 6 vols, Guillaumin etc.: Paris, and Puttkammer and Mühlbrecht: Berlin, 1887–1896), vol. III (1888) at 398, para. 1659. 146. Paul Pradier-Fodéré, Traité de droit international public européen et américain (8 vols, Pedone: Paris, 1885–1906), vol. II (1885) at 753–54, para. 1083. However, a treaty in which one party expressly undertakes to violate an earlier treaty is considered null because of immorality (at 752, para. 1082). 147. Quincy Wright, ‘Conflicts Between International Law and Treaties’, 11 American Journal of International Law (1917) 566–79 at 576, 579. 148. George Grafton Wilson, International Law (8th edn, Silver and Burdett: New York etc., 1922) at 216, para. 88(b). 149. 29 American Journal of International Law (1935) (supp.) 653–1099 at 661–62 (Art. 22(c)), 1024–29 (with numerous examples from practice); for the Harvard Draft, see also Mus, ‘Conflicts’, supra note 132, at 228; Jenks, ‘Conflicts’, supra note 5, at 442–43; Orakhelashvili, ‘Art. 30’, supra note 53, at 767; Pauwelyn, Conflict, supra note 5, at 424–25. 150. Hugo Grotius, De jure belli ac pacis libri tres (Nicolas Buon: Paris, 1625) at book II, ch. XV, para. 13.3. 151. Ibid., at para. 13.2. At least one more recent author has followed him on this point: Bonfils, Manuel, supra note 144, at 477, para. 855.D. 152. Alberico Gentili, De Iure Belli Libri Tres (William Anton: Hanau, 1612) at book III, ch. XVIII. 153. YILC 1963 II, at 53–54, Art. 14; 1964 II, at 35, Art. 65(4). – For discussions of Waldock’s proposal in the literature, see Binder, Treaty Conflict, supra note 116, at 55–62; Klabbers, Treaty Conflict, supra note 24, at 77–80; Orakhelashvili, ‘Art. 30’, supra note 53, at 769–71; Paolillo, ‘Art. 30’, supra note 97, at 1253–57; Roucounas, ‘Engagements’, supra note 132, at 99–101; Mus, ‘Conflicts’, supra note 132, at 229–30; Sadat-Akhavi, Methods, supra note 92, at 68–70. 154. YILC 1963 I, at 88, para. 18 (Mustafa Kamil Yasseen), para. 24 (Grigori Tunkin) (with exceptions, see note 205 below), 91, paras 49 and 52 (Roberto Ago); 1966 I, pt. 2, at 100, para. 69 (Grigori Tunkin); United Nations Conference on the Law of Treaties, First session, Vienna, 26 March–24 May 1968, Official Records, Summary records of the plenary meetings and of the meetings of the Committee of the Whole, UN Doc. A/CONF.39/11, at 164, para. 5 (Anatoly N. Talalaev), para. 8 (M. Sarin Chhak). 155. See note 154 above.

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the VCLT. This outcome provides support for the thesis that a priority rule is not recognized as part of customary international law.156 One Commission member even found that in view of the UN resolutions ‘on the emancipation of peoples’, ‘it had become appropriate to regard a recent treaty as superseding an earlier treaty’ because ‘[m]any old treaties belonged to the colonial era and should not be given precedence over more recent ones’.157 Others have not gone so far as to proclaim the lex posterior principle as the decisive rule to resolve treaty conflicts, but have at least mentioned it as one factor to be taken in consideration.158 As the lex prior principle is usually mentioned as another relevant factor, the temporal element effectively loses its significance. In any case, it is remarkable that very few authors still advocate a strict lex prior rule,159 usually preferring a more eclectic approach. Some authors explicitly proclaim the hierarchical equality of earlier and later treaties.160 Of course, those authors who reject the existence of any priority rules161 also reject a lex prior or lex posterior rule. National and international practice, while scarce, points towards a lex prior rule. A Dutch District Court in 1952 held that the obligations under a Convention between, among others, the Netherlands and Belgium ‘could not be reduced by a later Convention between the Netherlands and Indonesia’.162 The ECJ has held that not only under positive EU law163, but also under ‘principles of international law’, the EU Treaty does not affect obligations of member states under earlier trea-

156. See text accompanying note 116 above. 157. YILC 1963 I, at 201, para. 64 (Abdul Hakim Tabibi). 158. See Zuleeg, ‘Vertragskonkurrenz’, supra note 5, at 265–66. – Others mention the lex posterior principle as a rule to resolve treaty conflicts without discussing at all whether the treaties must have identical parties (Walter Kälin, Das Prinzip des non-refoulement. Das Verbot der Zurückweisung, Ausweisung und Auslieferung von Flüchtlingen in den Verfolgerstaat im Völkerrecht und im schweizerischen Landesrecht ([Lang: Berne and Frankfurt a.M., 1982] at 58). 159. But see Lepper, ‘Short’, supra note 10, at 910–11 (customary international law and the VCLT [!] prescribe a priority of the earlier treaty). See also Cardona Lloréns, supra note 91, at 38–39 (advocating a lex prior rule for earlier ‘interdependent’ and – if protecting ‘collective interests’ – ‘integral’ treaties; for these notions, see section 3.3.3.2 below). 160. E.g., Seidl-Hohenveldern, ’Hierarchy of Treaties’, supra note 48, at 10. 161. See section 3.3.8 below. 162. In re B., District Court of the Hague (26 May 1952), ILR 1952 No. 55. It is not apparent that a true conflict between the two treaties existed, so the statement will only have the value of an obiter dictum. 163. Art. 351(1) TFEU: ‘The rights and obligations arising from [previous] agreements between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of the Treaties’; see Aust, Modern treaty law, supra note 102, at 221–22.

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ties with third parties; such obligations may be performed even when conflicting with EU treaty law.164 Advocate General Lagrange has expressed the same view.165 In the national case law on conflicts between the ECHR and other treaties described in section 2.1 above, precedence was almost always given to the ECHR when it was the prior treaty. In the Dutch Short decision and the decisions of the French Cour de cassation of 17 February 2004, the Convention even prevailed despite being more recent. In none of these decisions, however, was the issue of the temporal order even mentioned. This strongly indicates that they were based on the content of the treaties rather than on their temporal sequence, so that they do not count as state practice with respect to a possible lex prior/posterior rule. The sole exception – both with regard to relying on the chronological order and to subordinating the ECHR – is the decision of the Swiss Federal Administrative Tribunal of 15 July 2010, where a bilateral treaty was said to prevail over the ECHR as lex posterior. Some support for lex prior could also be seen in the fact that when treaties contain conflict clauses, they almost invariably provide for the priority of previous treaties with partially different parties.166 Opposite clauses would

164. Case 812/79, Attorney General v. Burgoa [1980] ECR 2787 at para. 8 (see also Sadat-Akhavi, Methods, supra note 92, at 157–58, and Klabbers, Treaty Conflict, supra note 24, at 127–29); Case C-249/06, Commission v. Sweden, [2009] ECR I-1335 at para. 34; Case C-62/98, Commission v. Portugal [2000] ECR I-5171 at para. 44. – But see text accompanying notes 255–261 below for the important exception made in the Kadi judgment for human rights guarantees of the EU Treaty. 165. Case 10/61, Commission v. Italy [1962] ECR 12 at 17 (provision corresponding to today’s Art. 351(1) TFEU ‘is merely stating an established principle of international law’); see SadatAkhavi, Methods, supra note 92, at 158. 166. See Elias, Modern Law, supra note 109, at 55–56; YILC 1966 II, at 215 (‘Such clauses … appear in any case of incompatibility to give pre-eminence to the other treaty’); 1964 II, at 37–38; Klabbers, Treaty Conflict, supra note 24, at 14 (Art. 103 UN Charter as the only current conflict clause providing for the priority of the treaty that contains it); see also Wilting, Vertragskonkurrenz, supra note 92, at 67–74 (especially 72–73) (with examples). For an ancient example of such a clause, see the alliance between Carthage and Macedonia of 215 BC, as reported by Polybios, Histories, at book VII, 9.8, 9.9, 9.16, and Grotius, De jure belli, supra note 150, at book II, ch. XV, para. 13.2 (‘We shall be the enemies of your enemies, with the exception of the kings, states, and ports with which we have treaties of friendship’). One possible exception is the peace treaty between Israel and Egypt of 1979 (18 ILM [1979] 362), which is also binding and applicable ‘in the event of a conflict between the obligations of the Parties under the present Treaty and any of their other obligations’ (Art. VI(5)). However, this provision is counteracted by an annex according to which ‘there is no assertion that this Treaty prevails over other Treaties’ (18 ILM at 392); see Binder, Treaty Conflict, supra note 116, at 14–15. Another partial exception appears to be the UN Convention on Biological Diversity (5 June 1992, in force 29 December 1993, 1760 UNTS 79), which in Art. 22(1) claims priority over existing treaties in case of ‘serious damage or threat to biological diversity’ (see Klabbers, Treaty Conflict, supra note 24, at 101).

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anyway be largely ineffective, because they could of course not diminish the rights of third parties.167 Overall, state practice supporting a lex prior rule is probably not sufficient for it to be already considered customary law; but it could be seen as a rule in statu nascendi. Support for a lex posterior rule, on the other hand, is almost non-existent, so that its customary nature does not come into question.168 This lack of support for a lex posterior rule is not surprising in view of the difficulty of justifying such a rule. The only serious argument in its favour would be the need to preserve the ability of treaty law to evolve in accordance with the changing needs and circumstances of the international community. This could be impeded if a party to an out-dated treaty was able to prevent the other party or parties from concluding new treaties better adapted to the current situation.169 However, in balance, the need to uphold the bindingness of (prior) treaties and to preserve the rule 167. See Oppenheim’s International Law, supra note 109, vol. I/2–4, at 1213 n.9; Pauwelyn, Conflict, supra note 5, at 331–32, 437. 168. See ‘Harvard Draft’, supra note 117, at 1029 (‘Apparently in no case in practice has the general principle of the priority of the obligations previously assumed by a State over those subsequently assumed by it with a third State, ever been seriously denied, and no decision of an international tribunal is known in which the contrary principle has been sustained’); Gannagé, La hiérarchie, supra note 102, at 257; Guerchon, ‘La primauté’, supra note 28, at 706 (‘[N]i la doctrine ni la jurisprudence n’ont été jusqu’à estimer que la … norme la plus récente devait primer la plus ancienne’); Roucounas, ‘Engagements’, supra note 132, at 82–83 (lex posterior only applicable among the same parties); Seidl-Hohenveldern, ‘Widersprüchliche Verpflichtungen’, supra note 51, at 183. – But see, remarkably, Dieter Blumenwitz, ‘Die Hess-Entscheidung der Europäischen Menschenrechtskommission’, Europäische Grundrechte-Zeitschrift (1975) 497–98 at 498 (rejecting lex prior and tending to favour lex posterior), and Aufricht, ‘Supersession’, supra note 91, at 656, 670–71 (lex posterior ‘in principle’ only applicable to treaties between the same parties, but ‘in practice’ also if only some of the parties to the two treaties are the same; Aufricht does not indicate what ‘practice’ he means). 169. See Sadat-Akhavi, Methods, supra note 92, at 211 (using this argument in support of a lex posterior rule, even though it is unclear whether he only thinks of AB/AB or also of ABC/ AD situations); Geraldo Eulalio do Nascimento e Silva, ‘Le facteur temps et les traités’, 154 Recueil des Cours (1977) 215–97 at 244–45; Rousseau, Principes généraux, supra note 97, at 785; Zuleeg, ‘Vertragskonkurrenz’, supra note 5, at 263 (mentioning this as an argument against a – strict – lex prior rule). See also the following voices, using this argument against the invalidity of later treaties, especially multilateral ones: YILC 1963 I, at 199, para. 40 (Mustafa Kamil Yasseen), 202, para. 81 (Antonio de Luna) (to place the provision on treaty conflicts in the draft of the VCLT in the section on validity of treaties ‘would be to build a veritable bastion of ultra-conservatism or even reaction in international law’); 1964 I, at 126, para. 82 (Milan Bartoš) (‘States should not be obliged to remain bound by vestiges of treaties that were still formally in force, but no longer corresponded to reality. A State must be free to exercise its treaty-making capacity, subject only to the proviso that in doing so it engaged its international responsibility’); 126, para. 5 (José M. Ruda) (nullity would make amendments of multilateral treaties ‘virtually impossible, thereby impairing the flexibility needed to keep abreast of changing international conditions’); see also text accompanying note 158 above and 185 below.

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of law, stability and good faith – all favouring lex prior – should outweigh these concerns. This is all the more justified effectively, and maybe not even legally, as even under a lex prior rule, states are not strictly prevented from concluding, contradictory treaties, and will also be able to perform them in most cases, if they are prepared to accept the consequence of incurring state responsibility. In addition, not every replacement of a rule by a newer one is a positive development.170 If the lex posterior rule was admitted, a state could effectively free itself of an inconvenient treaty by concluding a contrary agreement with a third state, in contradiction with the principles of pacta sunt servanda and of pacta tertiis. This would be inacceptable.171 3.3.2. Lex specialis 3.3.2.1 Rejection of a lex specialis Rule for Treaties Between Non-Identical Parties

It has already been shown that with regard to treaties between the same parties, the lex specialis principle does not operate as a conflict rule in itself, but serves as a presumption or an aid to determine the will of the parties. With regard to conflicts between treaties with non-identical parties (like of the ABC/AD type), the principle does not even have this limited function; the majority of the literature and practice rightly hold it inapplicable in this situation172. It would indeed appear untenable if a party to an earlier treaty, by concluding a more ‘special’ treaty with a third party, could thereby invalidate the prior treaty or at least push it back into second rank.173 In the relationship between these treaties, their ‘special’ or ‘general’ nature must be irrelevant. Anything else would invite absurd manipulations, in that treaties would be set up as ‘specially’ as possible (by splitting comprehensive treaties into separate ones covering more limited areas, 170. Klabbers, Treaty Conflict, supra note 24, at 92; Zuleeg, ‘Vertragskonkurrenz’, supra note 5, at 265. 171. See ‘Harvard Draft’, supra note 117, at 1024. 172. Lagodny, Die Rechtsstellung, supra note 21, at 102–03; Rousseau, Principes généraux, supra note 97, at 787; Zuleeg, ‘Vertragskonkurrenz’, supra note 5, at 266; statement of R. Abraham, commissaire du Gouvernement, in Revue du droit public (1992) 1793–97 at 1795–96; see also ILC, Fragmentation, supra note 3, at 62, para. 115 (‘largely irrelevant’). – For contrary opinions, see Decision of the Swiss Federal Administrative Tribunal of 15 July 2010, Entscheide des Schweizerischen Bundesverwaltungsgerichts 2010/40, at para. 6.3 (applying the lex specialis rule to an ABC/AD type of conflict); Begdache, Répudiation, supra note 27, at 227–28 (apparently accepting that in cases concerning the recognition of a judgment, a bilateral treaty on the recognition of judgments prevails over the ECHR by virtue of its more ‘special’ nature in that respect); Gannagé, La hiérarchie, supra note 102, at 257–58 (same, but considering this rule as ‘largely facultative for the courts’); and apparently also Guerchon, ‘La primauté’, supra note 28, at 708–15 (examining – though with a negative result in the specific case – whether an ABC/AD type of conflict should be resolved on the basis of the lex specialis principle). 173. If, on the other hand, the earlier treaty is more ‘special’, the lex specialis rule is simply unnecessary, because the treaty already arguably enjoys priority as lex prior.

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rights etc., or dividing multilateral treaties into bilateral ones – depending on the criterion for ‘speciality’), in order to secure their precedence. 3.3.2.2. Possible Criteria for ‘Speciality’

Even if the lex specialis rule was applicable in ABC/AD situations, another difficulty would be to find a satisfactory criterion for ‘speciality’. Sometimes, it has been suggested that the circle of states bound by a rule should be decisive, so that a bilateral, local or regional norm would be more ‘special’ than – and possibly prevail over – a multilateral or universal one.174 It is indeed true that particular usually prevails over general international law.175 The situation at issue here is, however, different. First, the principle mentioned concerns at least primarily customary law; treaty law conflicts follow different rules, as is already apparent from the treatment of inter se treaties, which, instead of generally prevailing over the general treaty, are only permissible within the limits set by it.176 Second, the situation examined here is not one of a general rule for a wider circle of states v. a special rule for some of them (ABC/AB conflict), but one of an ABC/AD conflict, where no set of treaty parties is a subset of the other. It is therefore not possible to qualify one treaty as more ‘special’ solely because of the smaller number of its parties. Instead of by the number of their parties, ‘speciality’ could also be determined by the content of the treaties; this is also by far the prevailing approach. In some cases, it is indeed possible to say which of two treaties has a more ‘special’ subject, as in the case of a treaty about the recognition of judgments in family matters and another one about the recognition of private law judgments in general. Here, the subject-matter of the former is a subset of the latter. In most cases, however, where treaties intersect only in certain situations and otherwise cover different grounds, it is impossible to qualify one of them as ‘special’.177 This is particularly true of conflicts between human rights treaties and treaties on extradition, the 174. Rousseau, Principes généraux, supra note 97, at 785; YILC 1963 I, at 89, para. 29 (Antonio de Luna); see also Akehurst, ‘Hierarchy’, supra note 101, at 273 (mentioning this as one possibility); ILC, Fragmentation, supra note 3, at 35–36, para. 58, and 61, para. 112 (same); Pauwelyn, Conflict, supra note 5, at 389–91 (same); and Vanderbruggen, Above and Beyond the Treaty, supra note 5, at 71 (same); Guerchon, ‘La primauté’, supra note 28, at 708–12 (discussing and finally rejeting a priority based on ‘spécialité spatiale’ for an ABC/AD type of conflict). 175. Right of Passage over Indian Territory (Portugal v. India), Merits, ICJ Reports (1960) 6 at 44; Jean Combacau and Serge Sur, Droit international public (9th edn, Montchrestien: Paris, 2010) at 72; Pauwelyn, Conflict, supra note 5, at 391–95. 176. But see ILC, Fragmentation, supra note 3, at 47, para. 85, claiming explicitly that ‘particular treaties [generally enjoy priority] over general treaties’ by virtue of the lex specialis principle. 177. See Ralf Michaels and Joost Pauwelyn, ‘Conflict of Norms or Conflict of Laws?: Different Techniques in the Fragmentation of International Law’, in Tomer Broude and Yuval Shany (eds), Multi-Sourced Equivalent Norms in International Law (Hart: Oxford and Portland, 2011) 19–44 at 34–35 (with several examples); Cardona Lloréns, supra note 91, at 46 (same); see also ILC, Fragmentation, supra note 3, at 63, para. 118.

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recognition of judgments etc.178 With regard to extradition, the extradition treaty is more ‘special’, if the human rights treaty lacks specific provisions on that issue; but with regard to the human rights of the extraditee, the human rights treaty is the ‘special’ one, if the extradition treaty is silent about these rights.179 In addition, the assessment may depend on whether one looks at the treaties as a whole or the provisions actually in conflict (and it is unclear what the proponents of a lex specialis rule would advocate): Comparing the treaties as such, one might argue that, e.g., the human rights treaty is more general because its scope of application is much wider, covering any kind of state action with an impact on a number of human rights. The specific provisions involved, however, may be Article 3 ECHR versus a treaty provision that suspected criminals must be extradited. From this perspective, the speciality claim of the extradition treaty is much more doubtful. And even if criteria and methods for determining ‘specialty’ could be found, it would be very questionable to decide on this basis about the priority of the treaties. Not only is there no objective reason why a more special treaty or provision should precede, such a rule would also invite manipulations: e.g., in order to secure the priority of human rights, states would have to conclude specific treaties (or include specific provisions in treaties) on particular human rights or on the application of human rights in particular circumstances, instead of the general codifications that are prevailing now and that are certainly preferable.180 These considerations further confirm that a lex specialis rule has no application in conflicts between treaties with non-identical parties. 3.3.3. Priority of certain multilateral treaties (‘lex multilateralis’) Over the course of the past sixty years, several authors have advocated a priority (or another kind of preferential status) of certain types of multilateral treaties. Such a rule would in a certain sense be the opposite of the lex specialis rule, if ‘general/special’ is defined by the number of states bound by a rule (general v.

178. See also E.W. Vierdag, ‘The Time of the “Conclusion” of a Multilateral Treaty: Article 30 of the Vienna Convention on the Law of Treaties and Related Provisions’, 59 British Year Book of International Law (1988) 75–111 at 100 (refusing to qualify a provision on conditions for satellite broadcasting in the ‘International Radio Regulations’ as lex specialis vis-à-vis the right to freedom of expression in Art. 19(2) ICCPR, because the latter was ‘deliberately framed in sweeping terms’, ruling out ‘any specialia in another instrument’). 179. Cf. Guerchon, ‘La primauté’, supra note 28, at 713 (arguing similarly that it is impossible to decide whether the ECHR or a treaty on the recognition of judgments is more ‘special’); Vanderbruggen, Above and Beyond the Treaty, supra note 5, at 71 (same, with regard to a human rights treaty and a double taxation agreement). 180. Cf. Michaels and Pauwelyn, ‘Conflict of Norms’, supra note 177, at 35 (‘[S]hould treaty parties be able to undermine their WTO obligations merely by formulating a specific rule?’, as would be the case with a mechanical application of the lex specialis principle).

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special international law).181 But as has been shown182, a lex specialis rule would in any case not be applicable to the kind of treaty conflicts examined here (ABC/ AD conflicts), so that it could not preclude the existence of a ‘lex multilateralis’. 3.3.3.1. ‘Legislative’ or ‘Particularly Important’ Multilateral Treaties

Hersch Lauterpacht, the second special rapporteur of the ILC on the law of treaties (and the first to address the issue of treaty conflicts), favoured the nullity of the later treaty.183 In general, this was his position irrespective of the multi- or bilateral nature of the treaties involved. However, he provided for one exception, in that ‘subsequent multilateral treaties, such as the Charter of the United Nations, partaking of a degree of generality which imparts to them the character of legislative enactments properly affecting all members of the international community or which must be deemed to have been concluded in the international interest’, were excepted from this nullity and should instead prevail even over prior other treaties.184 His idea was that the development of such treaties of fundamental importance and of a ‘constitutional’ (a word not used by him) or at least ‘quasi-legislative’ (his expression) character should not be ‘hampered by the obligations of existing treaties’.185 Support for a preferential treatment of particularly important multilateral treaties, especially those protecting community interests including human rights, has been expressed by other scholars as well.186 The Swiss Government is also of the view that the ‘significance’ of a norm should be taken into account when resolving conflicts between international law norms.187

181. See text accompanying note 175 above. 182. Supra section 3.5.2.2. 183. See note 132 supra. 184. YILC 1953 II, at 93, Art. 16(4). 185. YILC 1953 II, at 157. 186. Dahm, Delbrück and Wolfrum, Formen, supra note 108, at 692 (hierarchically higher status for, among others, multilateral treaties ‘protecting important community values’, like human rights and the environment), 694–95; Vanneste, ‘Droit international général’, supra note 5, at 814 and 816 (a hierarchically superior status of human rights treaties – or at least the ECHR – is justified because – or insofar as – they protect a ‘common interest’); Cardona Lloréns, supra note 91, at 46 (postulating de lege ferenda that the ‘norm which protects the more important legal interest’ should prevail, which he calls a ‘kind of lex superior’); Daillier, Forteau and Pellet, Droit international public, supra note 57, at 301 (apparently in favour of a hierarchically higher status of important and widely ratified multilateral treaties, but not yet seeing this as lex lata); YILC 1963 I, at 88, para. 20 (Mustafa Kamil Yasseen) (normally, an earlier treaty only prevails over a later one with partially different parties; but nullity is conceivable in conflicts with ‘conventions of great political importance based on a balanced compromise achieved with great difficulty’); 199, para. 41 (Mustafa Kamil Yasseen) (now prepared to accept the nullity of the later treaty as the basic rule, but not if it is a ‘general multilateral treaty’). 187. See text accompanying note 40 above.

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3.3.3.2. ‘Interdependent’ and ‘Integral’ Treaties

Gerald Fitzmaurice, Lauterpacht’s successor as the ILC’s special rapporteur, rejected his predecessor’s general nullity theory, advocating instead the priority of the earlier treaty as the basic rule.188 But he too supported the nullity of the later treaty in case of conflict with multilateral treaties of the ‘interdependent’ and ‘integral’ type.189 He defined ‘interdependent’ treaties as treaties ‘where a fundamental breach of one of the obligations of the treaty by one party will justify a corresponding nonperformance generally by the other parties, and not merely a non-performance in their relations with the defaulting party’.190 These treaties are, so to speak, especially ‘vulnerable’ or ‘fragile’, in that their whole purpose – often aimed at creating or preserving a certain ‘balance’ among the parties – ‘collapses’ if they are breached by anyone. As an example, Fitzmaurice mentioned multilateral disarmament treaties.191 ‘Integral’ treaties, on the other hand, are treaties ‘where the force of the obligation is self-existent, absolute and inherent for each party, and not dependent on a corresponding performance by the others’.192 In contrast to ‘interdependent’ treaties, they appear as especially ‘stable’ and ‘mandatory’, because they have to be obeyed even where ordinary treaties – resting on the principle of do ut des – could be repudiated.193 The most important example of ‘integral’ treaties are human rights treaties.194 Indeed, the ECtHR has stressed that the ECHR, ‘[u]nlike international treaties of the classic kind, … comprises more than mere reciprocal engagements between Contracting States. It creates, over and above a network of mutual, bilateral undertakings, objective obligations’.195 188. YILC 1958 II, at 27, Art. 18 para. 6. – For more details on Fitzmaurice’s proposals, see Binder, Treaty Conflict, supra note 116, at 52–55; Klabbers, Treaty Conflict, supra note 24, at 74–77; Orakhelashvili, ‘Art. 30’, supra note 53, at 768–69; Paolillo, ‘Art. 30’, supra note 97, at 1252–53; Roucounas, ‘Engagements’, supra note 132, at 97–99; Mus, ‘Conflicts’, supra note 132, at 223–24, 229; Sadat-Akhavi, Methods, supra note 92, at 67–68; Wilting, Vertragskonkurrenz, supra note 92, at 41–42, 94–97. 189. YILC 1958 II, at 27–28, Art. 19. 190. YILC 1958 II, at 27–28, Art. 19(a). – See also Art. 60(2)(c) VCLT, which contains a special rule for interdependent treaties (without naming them so) with regard to their termination or suspension following a material breach. 191. YILC 1958 II, at 44; further examples in YILC 1966 II, at 216 n.117. 192. YILC 1958 II, at 28, Art. 19(b). 193. Art. 60 VCLT grants a right to termination or suspension of a treaty as a consequence of its material breach. Art. 60(5) provides that this right does not apply to ‘treaties of a humanitarian character’, thereby acknowledging – while not in so many words – their ‘integral’ nature. 194. See YILC 1958 II, at 44 (‘humanitarian convention[s]’, like the Convention on the Prevention and Punishment of the Crime of Genocide, as examples of integral treaties); further examples in YILC 1966 II, at 216 n.117. 195. Ireland v. United Kingdom, Application no. 5310/71, European Court of Human Rights, Plenary Court, Judgment (18 January 1978), at para. 239; Mamatkulov, supra note 23, at para. 100.

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It is difficult to perceive the difference, if any, between the concepts of ‘integral’ and erga omnes partes obligations. ‘Integral’ obligations are owed towards all the other treaty parties, and are thus, by definition, simultaneously obligations erga omnes partes.196 Conversely, it is hard to imagine an erga omnes partes obligation that would not qualify as ‘integral’. Therefore, this section should be read in conjunction with section 3.3.4.2 below on treaties with erga omnes effect. While ‘interdependent’ and ‘integral’ treaties are treated differently in the VCLT with regard to their termination or suspension as a consequence of their breach197, they enjoy no special treatment under Article 30. This can be traced to the fourth and final special rapporteur, Humphrey Waldock, who rejected Fitzmaurice’s distinctions and proposed to treat all categories of treaties (with the exception of constituent instruments of international organizations198) the same way in case of conflict (with a priority of the earlier treaty).199 He argued that ‘integral’ treaties often expressed ius cogens norms, so that the nullity of inconsistent later treaties was assured anyway.200 Besides, ‘interdependent’ and ‘integral’ treaties ‘may vary widely in their character and importance’,201 which made it difficult to see why all of them should be accorded such a preeminent status.202 The case law of the PCIJ did not provide support for Fitzmaurice’s distinctions either.203 – Waldock’s arguments evidently convinced the other ILC members and delegates at the Vienna Conference204; almost no one requested the reintroduction of a special treatment for ‘interdependent’ or ‘integral’ multilateral treaties205; indeed, the official commentary of the ILC to the final draft

196. ‘Interdependent’ obligations are owed towards all the other treaty parties as well, but the consequence of their breach – essentially a breakup of the treaty – appears to distinguish them decisively from erga omnes (partes) obligations. 197. See notes 190 and 193 above. 198. See section 3.3.3.3 infra. 199. See the references in note 154 supra. 200. YILC 1963 II, at 59, para. 25; 1964 II, at 44, para. 33; see also 1966 II, at 217, para. 13. 201. See infra section 3.3.3.3, with the same point regarding erga omnes treaties. 202. YILC 1963 II, at 59, para. 26; 1964 II, at 44, para. 33; see also 1966 II, at 217, para. 13. – This militates, of course, all the more against granting a higher status to all multilateral treaties. 203. YILC 1963 II, at 60, paras 28–29. 204. For an explicit statement in support, see YILC 1963 I, at 89, para. 26 (Antonio de Luna); see also 1966 I, pt. 2, at 103, para. 12 (Humphrey Waldock) (‘Most members, and he shared their view, seemed opposed to introducing any idea of a hierarchy of treaties’, Law of Treaties Conference Records 1st Sess., supra note 154, at 165, para. 14 (Ian Sinclair) (‘There was no need to subdivide multilateral conventions into various categories’). 205. But see YILC 1963 I, at 88, para. 24 (Grigori Tunkin) (no general nullity of treaties conflicting with earlier ones, but with exceptions; e.g., treaties concluded in violation of the agreement on the neutrality of Laos – certainly an ‘interdependent’ treaty – should be void) (similarly at 116, para. 22); 1964 I, at 129, para. 31 (Grigori Tunkin) (suggesting a clarification that integral and interdependent treaties always prevailed over later conflicting treaties).

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for a Convention on the Law of Treaties explicitly rejects it206. Neither are such special rules supported by the current literature,207 with one notable exception208. 3.3.3.3. Constitutive Treaties of International Organizations

Article 103 of the UN Charter states that in the event of conflict with obligations under other treaties, the obligations under the Charter prevail. The question whether this rule is opposable to a non-member state (so that the Charter would prevail over treaties between members and non-members) is still controversial, but, in view of the universal membership of the UN, nowadays devoid of practical significance. Some scholars have suggested that such a rule is applicable to all treaties founding an international organization, even if they do not contain an express priority clause (or rather: claim) like Article 103. For do Nascimento e Silva, constitutive treaties of large international organizations, like (but apparently not limited to) the United Nations, should ‘generally’ prevail over other treaties.209 Dahm, Delbrück and Wolfrum assert the same for ‘important’ international organisations.210 Waldock, as we have seen, generally rejected the nullity of a treaty as a consequence of its conflict with an earlier one; but at one time he made a reservation with regard to ‘invalidity that may arise when the earlier treaty is the constituent instrument of an international organization which contains provisions limiting the treaty-making powers of its members with respect to the amendment of the constituent treaty or with respect to any particular matters’.211 McNair held the same view.212 From a practical and political viewpoint, it is understandable that the formation and workings of such essential organizations should not be impeded by conflicting prior or later (especially bilateral) treaties; but legally, a claim for superiority of their founding treaties is hard to justify, even for the UN Charter. In any case, as the ECHR is not a constitutive treaty of an international organization,213 such a priority rule would not be applicable for its benefit. If, in the reverse situation, the ECHR was pitted against such a constitutive treaty, it may be that this hypothetical priority rule would not be applicable either: Apparently, most authors would even reject the applicability of Article 103 of the Charter to conflicts between UN 206. YILC 1966 II, at 217. 207. For an explicit rejection, see Wilting, Vertragskonkurrenz, supra note 92, at 110–11. 208. See note 159 above for the position of Jorge Cardona Lloréns. 209. Do Nascimento e Silva, ‘Le facteur temps’, supra note 169, at 243, 246, 248. 210. Dahm, Delbrück and Wolfrum, Formen, supra note 108, at 692. 211. YILC 1963 II, at 54, Art. 14(3)(a). He later dropped this provision without an explanation; see YILC 1964 II, at 34–35, Art. 65. 212. McNair, The Law of Treaties, supra note 97, at 221. 213. The Council of Europe is founded on the Statute of the Council of Europe. The ECHR is the founding instrument for the European Court of Human Rights, but the Court alone is not an international organization.

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obligations and human rights treaties,214 and this should be all the more the case for constitutive treaties of a less ‘constitutional’ character than the UN Charter. 3.3.3.4. Assessment

The VCLT in its final form and in its overall history, as well as international case law (where multilateral treaties as such have never been accorded a higher status) indicate that a ‘lex multilateralis’ – for multilateral treaties in general or particularly important categories of them – does not exist in international law. This conclusion is shared by part of the literature.215 Nonetheless, other authors have expressed support for such a rule, so that it is conceivable that it might be adopted by the practice in the future. At present, however, it can not provide a basis for a priority of the ECHR over bilateral treaties. 3.3.4. Priority of Other Categories of Treaties In addition to or instead of multilateral (especially ‘interdependent’ or ‘integral’) and human rights treaties, it has been suggested that certain other categories of treaties should enjoy priority or another kind of special status. 3.3.4.1. Status Treaties

Even though the ECHR is certainly not a status treaty, this category shall be mentioned here for the sake of completeness, and because it is conceivable that the ECHR itself could conflict with a status treaty.216

214. This is at least what Martti Koskenniemi and Päivi Leino claim: ‘Even as Article 103 may seem like a constitutional provision, few would confidently use it to uphold the primacy of Security Council decisions over, for example, human rights treaties’ (‘Fragmentation of International Law? Postmodern Anxieties’, 15 Leiden Journal of International Law [2002] 553–79 at 559). 215. See note 207 above with regard to ‘interdependent’ and ‘integral’ treaties in particular; with regard to multilateral treaties in general see Benedetto Conforti, ‘Consistency Among Treaty Obligations’, in Enzo Cannizzaro (ed.), The Law of Treaties Beyond the Vienna Convention (Oxford University Press, 2011) at 187–91, 189; Vanderbruggen, Above and Beyond the Treaty, supra note 5, at 60 (‘Multilateral treaties do not necessarily have priority over bilateral ones’); Ziemele, ‘Case Law’, supra note 5, at 203 (‘questionable’ and ‘certainly too general for satisfactorily addressing the many different types of treaties’); Rousseau, Principes généraux, supra note 97, at 787, 812; explicitly with regard to the ECHR, see Begdache, Répudiation, supra note 27, at 226–27 (no priority of the ECHR over bilateral treaties by virtue of its multilateral nature). 216. One could, for example, imagine a treaty between the United Kingdom and Spain on the status of Gibraltar, with provisions on the citizenship and voting rights of the residents of this territory, conflicting with Art. 3 of Protocol No. 1 to the ECHR (an example obviously inspired by the Matthews case, section 2.1.7 supra). Another fictional example (inspired by Drozd and Janousek v. France and Spain, Application no. 12747/87, European Court of Human Rights, Plenary Court, Judgment [26 June 1992]) would involve a treaty on the status of Andorra, providing for the enforcement of Andorran judgments in the contracting parties, in possible violation of their obligations under Art. 6 ECHR.

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Status treaties are treaties whereby states set up an ‘objective’ or ‘territorial’ ‘régime’ for an area in the general interest and usually with (purported) effect for all other states (erga omnes), or at least to all other states which have not raised a protest.217 Instances of status treaties are ‘treaties providing for the navigation of international rivers or waterways, for the neutralization or demilitarization of particular territories or localities, for mandates or trusteeships of particular territories, … treaties of cession and boundary treaties, etc.’218. For some scholars, at least certain status treaties – even if clearly not creating rights in rem – entail a loss of capacity of the state concerned to dispose of or regulate the subject matter of the status treaty; therefore, later contrary treaties – at least those which do not include all parties to the status treaty – are ineffective and void.219 Whether existing contrary treaties are supposed to become void as well is usually not made clear,220 but it can be assumed. This would mean that status treaties enjoy status that is in effect even akin to ius cogens. However, practice shows that status treaties are sometimes amended or superseded by treaties between parties which do not include all the parties to the (earlier) status treaty. For instance, some of the parties to the Berlin Act of 1885 amended, as between them, its provisions on navigational rights on the Congo in the Treaty of Saint-Germain-en-Laye of 1919. The later treaty was held applicable by the PCIJ in the Oscar Chinn case,221 over the dissent of Judge van Eysinga, who regarded the treaty of 1919 as void particularly because it attempted to change an international régime,222 and of Judge Schücking, who agreed with van Eysinga.223 As another example, the provisions on the European 217. See Waldock’s Draft Article 63 on ‘treaties providing for objective régimes’ in YILC 1964 II, at 26–27, and his commentary thereto, ibid., at 27–34. – The controversial issue of the erga omnes effect of status treaties will not be treated here. 218. YILC 1964 II, at 27, para. 4. 219. For neutralization treaties: YILC 1963 I, at 62, para. 68 (Humphrey Waldock) (treaties concluded by Laos in violation of the agreement of 1962 on its neutrality [456 UNTS 301] could be invalid, because Laos might have lost its capacity to conclude such treaties); 200, para. 50 (Roberto Ago) (‘There was only one case in which the question of nullity could arise: that in which the first treaty had effected the capacity of one of the States. Such a consequence was possible in the case of certain neutralization treaties, where the neutralized State would be deemed no longer to possess the capacity to conclude certain treaties, such as treaties of military alliance’); 202, para. 74 (Humphrey Waldock) (agreeing with Ago); McNair, The Law of Treaties, supra note 97, at 220–21 (neutralization treaties entail a ‘surrender of treaty-making capacity’). – For further kinds of status treaties, see the following footnote. 220. But see Scelle, ‘Règles générales’, supra note 131, at 474–75: With the conclusion of ‘annexion, confederation, protectorate, and customs union’ treaties, certain existing treaties with third states (e.g., in the case of customs unions, all trade treaties) become automatically void. However, doctrinally, this seems rather to be based on an idea similar to rebus sic stantibus than on the concept of status treaties. 221. See note 141 above. 222. PCIJ Series A/B, No. 63 (1934) at 132–35. 223. Ibid., at 148.

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Commission of the Danube in the 1919 Versailles Peace Treaty were amended by the Definitive Statute of the Danube of 1921, agreed between only some of the parties to the Versailles Treaty. Again, the later treaty nonetheless served as the basis of a decision of the PCIJ.224 The Statute of 1921 itself was amended by further treaties, especially the Belgrade Convention of 1948. Here, parties to the earlier treaties which did not accede to the Belgrade Convention protested, and the wording of the protest indicates that they considered it void.225 Protests were also evoked by the revisions of the international régime for Tangier, ‘from certain States which considered that their rights or interests under earlier instruments had been disregarded’.226 Finally, the international régime for Trieste instituted in the peace treaty with Italy of 1947 was later abolished by an agreement between Italy, the United Kingdom, the United States of America and Yugoslavia only; in this case, no protests were raised against this course of action.227 These are by far not the only examples of this kind.228 Despite the occasional protests mentioned, the later treaties have all become operative, at least in respect of their parties; none of them has been annulled. It therefore seems that status treaties do not affect the capacity of the states to contract, and therefore do not enjoy the claimed superior status.229 Of course, any later treaty changing a territorial régime (as much as the original treaty establishing it!230) must include the states with territorial or in rem competence to dispose of the object of the treaty; nemo plus iuris transferre potest quam ipse habet. 224. See note 141 above. – As to this and the previous case, see also YILC 1963 II, at 60 paras 28 (Humphrey Waldock) (‘In both these cases the prior treaty was a multilateral treaty establishing for a particular region an international régime which contained obligations of an “integral” or “interdependent” type. In both cases the special character of the treaty was emphasized by the dissenting judges, yet the Court would not look beyond the fact that the disputing States were themselves parties to the later treaty and had not challenged its validity’) and 29 (‘The jurisprudence of the Permanent Court therefore, so far as it goes, seems to be opposed to the idea that a treaty is automatically void if it conflicts with an earlier multilateral treaty establishing an international régime’). 225. See YILC 1964 II, at 43, para. 31; Verdross and Simma, Universelles Völkerrecht, supra note 102, at 503, para. 788. 226. YILC 1964 II, at 43, para. 31. 227. See YILC 1964 I, at 128, para. 25, and 154, para. 17; 1966 I, pt. 2, at 27, para. 25. But this may have been a special case, because the other parties to the peace treaty had no discernable interest in the preservation of the status of this small territory (‘had not been principally concerned’: YILC 1966 I, pt. 2, at 27, para. 25). 228. YILC 1964 II, at 43, para. 31. 229. Accord, YILC 1964 II, at 43, para. 31 in fine (Humphrey Waldock); similarly, 1963 I, at 201, paras 59–60 (Milan Bartoš) (generally no ‘incapacity of a State to conclude treaties’ because of a status treaty, with the possible exception ‘of a territorial régime forming an integral part of the general international regime, which had the force of jus cogens’). 230. See Waldock’s Draft Article 63(1) (supra note 217): ‘… provided that the parties include among their number any State having territorial competence with reference to the subject-matter of the treaty, or that any such State has consented to the provision in question’.

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3.3.4.2. Erga omnes partes or erga omnes Treaties

While the obligations under some multilateral treaties (for instance, treaties on diplomatic immunities) are owed, in each concrete case, towards only one state, other treaties create obligations towards its parties as a whole (erga omnes partes).231 Human rights treaties are an important example of the latter category.232 Human rights obligations under customary international law may even be owed towards the international community as a whole (erga omnes).233 The reason for the erga omnes234 nature of an obligation usually lies in the importance of its subject matter. Often, though not always (see, e.g., the prohibition of agression), this is coupled with the additional reason that it would be impossible to identify any specific state as injured by a violation (e.g., human rights violations committed by a state against its own nationals). It is unclear whether the latter fact alone is (or whether even other considerations are) sufficient to attribute to a norm an erga omnes character, even if it does not protect an important community interest. Some authors seem to think so, accordingly pointing to the purely ‘procedural’ feature of these obligations and their not necessarily important subject matter.235 It is understandable that some of these authors deny erga omnes treaties a hierarchically superior status.236 Others, while

231. See Art. 48(1)(a) of the ILC’s Draft Articles on State Responsibility, GA Res. 56/83, 12 December 2001, Annex: ‘obligation … owed to a group of states …, … established for the protection of a collective interest of the group’. – As mentioned in section 3.3.3.2 above, the concept of obligations erga omnes partes is very similar to, if not identical with, the concept of integral treaties. 232. See ILC, Fragmentation, supra note 3, at 198, para. 391; American Law Institute, Restatement of the Law (Third), The Foreign Relations Law of the United States (2 vols, American Law Institute Publishers: St. Paul, 1987), vol. II, § 703(1); Commentary of the ILC to the Draft Articles on State Responsibility, YILC 2001 II, pt. 2, at 126, para. 7 ad Art. 48 (regional human rights treaties). 233. Barcelona Traction Light and Power Co. Ltd. (Belgium/Spain), ICJ Reports (1970) 3 at 32 (‘basic rights of the human person’ as ‘obligations of a State towards the international community as a whole’); Restatement (Third), supra note 232, vol. II, § 702, comment o, and § 703(2) with comment b; Tawhida Ahmed and Israel de Jesús Butler, ‘The European Union and Human Rights: An International Law Perspective’, 17 European Journal of International Law (2006) 771–801 at 779; Dahm, Delbrück and Wolfrum, Formen, supra note 108, at 692 (attributing this effect even to human rights treaty obligations – which is hard to justify at least for regional treaties); Klabbers, Treaty Conflict, supra note 24, at 121 (same opinion as Dahm, Delbrück and Wolfrum). 234. Used here and in the following sentences in a wider sense, embracing erga omnes in the literal meaning of the word and erga omnes partes. 235. E.g., ILC, Fragmentation, supra note 3, at 193, para. 380, and 197, para. 389. See also PierreMarie Dupuy, ‘L’unité de l’ordre juridique international’, 297 Recueil des Cours (2002) 9–490 at 140–41, and Cardona Lloréns, supra note 91, at 37 (saying the same for ‘integral’ treaties, which can be equated with erga omnes treaties – see note 231 above). 236. ILC, Fragmentation, supra note 3, at 193, para. 380. But see Malcolm N. Shaw, International

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not addressing the requirements for erga omnes obligations, share this conclusion.237 On the other hand, it is also asserted that erga omnes obligations enjoy priority over other international norms.238 Still others – on the background of support for a priority of particularly important treaties – assert that erga omnes treaties do often enjoy a higher status, but that there is no direct causal relationship between these two circumstances. Instead, the material importance of the treaties is the reason for their erga omnes effect as well as for their hierarchical superiority.239 Of course, insofar as erga omnes obligations are at the same time ius cogens, their priority – indeed the nullity of the contrary treaty – is out of doubt.240 3.3.5. Priority of Human Rights Treaties, Especially the ECHR As far as human rights treaties reflect ius cogens, they too supersede other treaties.241 While it is unquestionable that some human rights belong to ius cogens, the exact extent of that category is an open question.242 Not infrequently, it is contended that the non-derogable rights of Article 15(2) ECHR are ius cogens.243 The possibility of human rights or the ECHR as regional European ius cogens should also be mentioned.244 If this were accepted, it would raise the difficult question whether such a ‘regional’ status could be opposed to a third state like the US. Beyond ius cogens, several authors have claimed a general priority of human rights treaties or the ECHR over other treaties,245 while others have rejected the Law (6th edn, Cambridge University Press, 2008) at 124, who speaks of a higher status of erga omnes obligations, and yet says that this concept has ‘primarily a procedural focus’. 237. Klabbers, Treaty Conflict, supra note 24, at 94–95; Sadat-Akhavi, Methods, supra note 92, at 56; Wilting, Vertragskonkurrenz, supra note 92, at 54, 107. 238. ‘Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law’, Final Report of the Study Group of the International Law Commission, in Report of the International Law Commission, 58th Sess., UN Doc. A/61/10 (2006) 403–23 at 418–23. 239. Dahm, Delbrück and Wolfrum, Formen, supra note 108, at 692. 240. Arts 53 and 64 VCLT. 241. See note 240 above and Kälin, Non-refoulement, supra note 158, at 58, 166–67. 242. See, e.g., Art. 50(1)(b) of the ILC’s Draft Articles on State Responsibility, GA Res. 56/83, 12 December 2001, Annex: ‘obligations for the protection of fundamental human rights’ as ius cogens. 243. François, ‘Convention’, supra note 25, at 2960; see also Entscheidungen des Schweizerischen Bundesgerichts, 133 II 450 (2007) at 461–62, paras 7.1 and 7.2 (non-derogability as an indication of ius cogens nature; derogable rights ‘generally’ not ius cogens). 244. See Verdross and Simma, Universelles Völkerrecht, supra note 102, at 334, para. 531. 245. Cohen-Jonathan, ‘Rapports’, supra note 22, at 98–100, 108 (for the ECHR); Dahm, Delbrück and Wolfrum, Formen, supra note 108, at 692 (quoted supra note 186); Lemontey statement, supra note 29, at 80 (quoted in text accompanying note 29 above); Hans A. Stöcker, ‘Grund- und Menschenrechte bleiben im Zweifel unberührt’, Juristenzeitung (1976) 45–49 at 47–48 (at least if the conflicting treaty does not contain an explicit conflict rule); Vanneste, ‘Droit international général’, supra note 5, at 814 and 816 (quoted supra note 186); Vierdag, ‘The Time’, supra note 178, at 108 (tentatively); van der Wilt, ‘Après Soering’, supra note 6,

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idea.246 The idea of such a priority is also reflected in a resolution of the Institut de Droit international on extradition, which subordinates duties to extradite to ‘fundamental’ human rights,247 and in a resolution of the ILA on the same subject, inviting states to include a clause in their extradition treaties that extradition shall be refused if the requested person ‘would face a real risk of a serious violation of his or her human rights’.248 Claims for a priority of human rights treaties can also be found in decisions of the UN Human Rights Committee, which is responsible for monitoring compliance with the International Covenant on Civil and Political Rights (ICCPR). A statement in Chitat Ng v. Canada suggests that the Committee considers the ICCPR superior to other, conflicting treaties.249 This is confirmed by Sayadi and

at 76. See also Walter Kälin, ‘Menschenrechtsverträge als Gewährleistung einer objektiven Ordnung’, 33 Berichte der deutschen Gesellschaft für Völkerrecht (1994) 9–48 at 25 (literature and practice increasingly recognize as justified a refusal to fulfill extradition treaty obligations if the extradition would lead to serious human rights violations), 45; Koskenniemi and Leino, ‘Fragmentation’, quoted supra note 214 (Art. 103 UN Charter not applicable to conflicts with human rights treaties). 246. Conforti, ‘Consistency’, supra note 215, at 189; Guerchon, ‘La primauté’, supra note 28, at 733–36 (priority of the ECHR over other treaties in French law, as far as the Convention reflects French constitutional law; but no priority under international law); Lepper, ‘Short’, supra note 10, at 910–11 (customary international law and the VCLT [!] prescribe a priority of the earlier treaty, even over later human rights treaties, 926–27, 938–39; but he also acknowledges ‘some support’ for a priority of human rights [at 922]); Seidl-Hohenveldern and Stein, Völkerrecht, supra note 106, at 95, no. 439 (ECHR does not even have primacy over the ‘most banal adminstrative agreement’); Dinah Shelton, Normative Hierarchy in International Law, 100 American Journal of International Law (2006) 291–323 at 294 (‘The asserted primacy of all human rights law has not been reflected in State practice’); Joel P. Trachtman, ‘Joost Pauwelyn: Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law’ (book review), 98 American Journal of International Law (2004) 855–61 at 860 (‘[I]t seems quite incorrect to say that WTO law is generally trumped by international environmental, human rights, or labor agreements. Rather, in the general international legal system, we are stuck with the messy and often normatively incoherent rules of lex posterior, as reflected in Article 30 of the Vienna Convention, and questions about how multilateral treaties may be modified by custom or by other multilateral treaties with different membership’); Vanderbruggen, Above and Beyond the Treaty, supra note 5, at 60 (‘In and on itself, treaties on human rights do not have priority over treaties that organize more mundane matters such as taxation’); Wilting, Vertragskonkurrenz, supra note 92, at 107; Christine van den Wyngaert, ‘Applying the European Convention on Human Rights to Extradition: Opening Pandora’s Box?’, 39 International and Comparative Law Quarterly (1990) 757–79 at 762 (‘little support in positive international law’ for a superiority of human rights treaties). 247. See 60-II Annuaire de l’Institut de Droit international (1984) 304 at 306, Art. IV. 248. International Law Association Conference Report (1998) at 13; see also the corresponding report by Dugard and van den Wyngaert, ‘Extradition’, supra note 13, at 135–38, 152. 249. Communication no. 469/1991, Views (5 November 1993), UN Doc. CCPR/C/49/D/469/1991 (1994) at para. 14.1: ‘States parties to the Covenant will also frequently be parties to bilateral treaty obligations, including those under extradition treaties. A State party to the Covenant

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Vinck v. Belgium250, where the Committee even examined the ICCPR conformity of Belgian measures implementing Security Council resolutions, despite Article 103 of the UN Charter.251 Ostensibly, it did this on the premise that Belgium itself was ultimately responsible for the challenged measures (so that Article 103 did not apply): First, because it was this state which had originally transmitted the names of the supposed terrorist supporters to the Security Council, and second, because it would have always had the option not to take any implementation measures.252 However, both propositions are hardly convincing; Belgium had in fact always acted as required by the Security Council.253 If this is so, then Sayadi and Vinck indicates that the Committee considers the obligations under the ICCPR even superior to (or at least unaffected by) obligations under the UN Charter, and probably a fortiori to obligations under other treaties. Further limited support for a priority of human rights is provided by the Kadi judgment254, where the ECJ carved a significant exception in favour of human rights out of Article 351(1) of the Treaty on the Functioning of the European Union (TFEU). This Article lays down the principle that obligations under earlier treaties with third states shall not be affected by EU law, thus enshrining a lex prior rule.255 Despite the general wording of Article 351(1), the ECJ decided that this provision ‘may in no circumstances permit any challenge to the principles that form part of the very foundations of the Community legal order, one of which is the protection of fundamental rights [see Art. 6 Treaty on European Union, which also refers to the ECHR], including the review by the Community judicature of the lawfulness of Community measures as regards their consistency with those fundamental rights’.256 In other words, the ECJ sees human rights obligations under the EU Treaty as paramount over, or unaffected by, Article 351(1) TFEU. This even applies if the earlier agreement is the UN Charter, as was the case in Kadi, where the Court was asked to review Community measures that implemented binding Security Council resolutions. Nonetheless, the ECJ emphasised that such a review is undertaken ‘in the context of the internal and must ensure that it carries out all its other legal commitments in a manner consistent with the Covenant.’ 250. Communication no. 1472/2006, Views (22 October 2008), UN Doc. CCPR/C/94/D/1472/2006 (2008). 251. See, especially, ibid., at para. 10.6 (‘[T]he Committee considers that … it is competent to consider the compatibility with the Covenant of the national measures taken to implement a resolution of the United Nations Security Council’). 252. See ibid., at para. 10.7. 253. See the dissenting opinion of Ivan Shearer, ibid., appendix B, and Marko Milanović, ‘The Human Rights Committee’s Views in Sayadi v. Belgium: A Missed Opportunity’, 1 Goettingen Journal of International Law (2009) 519–38 at 529–32, 534. 254. Joined Cases C-402/05 P and C-415/05 P, Kadi v. Council [2008] ECR I-6351. 255. See note 163 and accompanying text above. 256. Kadi, supra note 254, at para. 304.

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autonomous legal order of the Community’,257 that is, from the viewpoint of this order as an ‘autonomous legal system’,258 where it is the ‘hierarchy of norms within the Community legal order’259 that matters. In other words, the Court does not claim a priority of the EU Treaty over the UN Charter under general international law; at the opposite, it recognizes the primacy of the UN Charter under that system.260 Still, the fact that the ECJ effectively places (only) human rights above contrary obligations under treaties with third states points to their increasingly elevated status in the context of treaty conflicts. The prime justification for a priority of human rights treaties under general international law would have to be the pivotal place that human rights now occupy in that legal system. For some, the protection of the rights and interests of people has replaced state sovereignty and its safeguard as the central pillar and purpose of international law (or has always occupied that place),261 and it could be regarded as consequential that this should be reflected in a higher status of human rights treaties. This view, however, is contested by others, for whom human rights are subjected to and limited by the traditional structural principles and aims (peaceful and orderly relations and cooperation between states) of international law;262 accordingly, human rights treaties would not enjoy precedence. One could also argue that, upon closer examination, it is often not in the interest of the greatest number of people that human rights trump other international obligations, so that the view that such a hierarchical order would most benefit ‘the people’ appears

257. Ibid., at para. 317. 258. Ibid., at para. 316. 259. Ibid., at para. 305. 260. Ibid., at paras 288 (a judgment of a EU court holding that the implementation of a Security Council resolution is contrary to EU law ‘would not entail any challenge to the primacy of that resolution in international law’), 300 (‘principle of the primacy at the level of international law of obligations under the Charter of the United Nations’). The Court of First Instance has expressed the same view even more clearly; see Case T-306/01, Yusuf v. Council [2005] ECR II-3533, at para. 231, and Case T-315/01, Kadi v. Council [2005] ECR II-3649, at para. 191 (‘From the standpoint of international law, the obligations of the Member States of the United Nations under the Charter of the United Nations clearly prevail over every other obligation of domestic law or of international treaty law’). 261. See, e.g., Theodor Meron, The Humanization of International Law (Nijhoff: Leiden and Boston, 2006) at xv (‘The humanization of public international law under the impact of human rights has shifted its focus ... from State-centered to individual-centered’); Shaw, International Law, supra note 236, at 258 (‘The essence of international law has always been its ultimate concern for the human being’); Report of the Federal Council on the ‘Relationship between International Law and National Law’, Bundesblatt der Schweizerischen Eidgenossenschaft 2010, 2263 at 2273 (international law increasingly gives priority to the protection and wellbeing of people, instead of only stabilizing inter-state relations). 262. See, e.g., Christian Maierhöfer, ‘Der EGMR als “Modernisierer” des Völkerrechts? – Staatenimmunität und ius cogens auf dem Prüfstand’, Europäische Grundrechte-Zeitschrift (2002) 391–98 at 397.

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short-sighted.263 For instance, under a strict priority of human rights treaties, it is conceivable that an extradition obligation could not be fulfilled because the accused is threatened with the death penalty in the requesting state, but could neither be prosecuted in his state of residence because of a lack of jurisdiction.264 A potentially highly dangerous person would then have to be left unpunished and free, threatening the safety of the population at large. Other considerations which have been put forward to justify a priority of human rights are even more problematic. Some authors want to derive a priority of such treaties from Articles 1(3), 55, 56 and 103 of the UN Charter.265 Article 103, as we have seen, proclaims the priority of obligations under the Charter over those under other treaties, whereas Articles 1(3) and 55 declare the promotion of respect for and of observance of human rights and the achievement of international cooperation in this respect as one of the purposes of the United Nations, and Article 56 contains a ‘pledge’ of member states to cooperate with the UN for this purpose. However, a close reading of these provisions reveals that it is not possible to derive from them an elevated status of human rights obligations of states. First, Articles 1 and 55 are addressed at the United Nations, not its member states. Article 56 only calls on states to ‘cooperate’ with the United Nations in its efforts for the promotion of human rights, which is different from an obligation of states to observe human rights by themselves.266 Second, Articles 1, 55 and 56 probably do not create rights or obligations in the legal sense at all,267 so that 263. Cf. Trachtman, ‘Joost Pauwelyn’, supra note 246, at 856 (criticising reviewed book’s author’s ‘systematic efforts to demote WTO law in favor of less “mercantile” law, such as human rights law and environmental law’, on the ground that ‘[t]he rights to trade ... are not necessarily inferior in priority to certain other rights. We can think of circumstances in which there may be deep normative import, if not normative superiority, attaching to trade law values; for example, trade disciplines may alleviate poverty in a very significant way at the expense of modest incursions on human rights or environmental protection’). 264. This would have been exactly the situation in the Short case, if the problem had not been resolved in the way described in section 2.1.2 above (see 22 Netherlands Yearbook of International Law [1991] 432 at 438 n.139; Lepper, ‘Short’, supra note 10, at 875 n.17). 265. See Jochen Abraham Frowein and Rolf Kühner, ‘Drohende Folterung als Asylgrund und Grenze für Auslieferung und Ausweisung’, 43 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (1983) 537–65 at 557; Kälin, Non-refoulement, supra note 158, at 58, 166; Stöcker, ‘Grund- und Menschenrechte’, supra note 245, at 46–48, esp. 48; Vierdag, ‘The Time’, supra note 178, at 99–100 (without taking a position himself ). 266. Manley O. Hudson, ‘Integrity of International Instruments’, 42 American Journal of International Law (1948) 105–8; Lagodny, Die Rechtsstellung, supra note 21, at 106–07; Klabbers, Treaty Conflict, supra note 24, at 95. Contra Stöcker, ‘Grund- und Menschenrechte’, supra note 245, at 47; F. Blaine Sloan, ‘Human rights, the United Nations and international law’, 20 Nordisk Tidsskrift for International Ret: Acta scandinavica juris gentium (1950) 23–42 at 31; Quincy Wright, ‘National Courts and Human Rights – The Fujii Case’, 45 American Journal of International Law (1951) 62–82 at 69–74. 267. Stöcker, ‘Grund- und Menschenrechte’, supra note 245, at 46–47; Sloan, ‘Human rights’, supra note 266, at 30–31. Klabbers, Treaty Conflict, supra note 24, at 95, leaves open whether

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even if they were applicable to the observance of human rights by states, they would be merely exhortatory and therefore not fall under Article 103. And third, the promotion of human rights is by far not the sole object of Articles 1 and 55. Very many, if not all, other treaty obligations could also be traced back to one of the purposes enumerated in Articles 1 and 55 (like ‘economic and social progress and development’ and the ‘solution[] of international economic [or] social … problems’), which would offset any elevated status of human rights treaties.268 Kälin offers another line of argument resulting in a priority of human rights obligations. For him, it can usually not be presumed that the parties to an extradition treaty did intend to commit themselves to extradite a person if this would lead to a violation of his ‘fundamental human rights’.269 Thus, he reads a tacit conflict clause in favour of human rights into extradition treaties. However, if such an understanding has found no expression in the wording of the treaty, and not even in the travaux préparatoires, it is not possible to follow Kälin under the established rules of treaty interpretation. In practice, as we have seen, the ECHR is usually given priority over other treaties. Due to the dearth of cases of real conflict and the frequent absence of expressions of opinio iuris270, it is, however, difficult to claim that a customary rule requiring or justifying such a priority already exists; at most, it is in statu nascendi. As to the scope of that arguably emerging rule, it would probably have to be limited to the ECHR, because other human rights treaties have not been given the same treatment. This could be explained by the particular enforcement mechanism of the ECHR, which creates a risk for member states to be ‘convicted’ for human rights violations by a formal judgment of an international court.271 In order to avoid this, they implement the ECHR, even over other commitments. It can only be speculated whether a similar treatment would be accorded to treaties in other areas, like environmental or trade law, if they had similar enforcement mechanisms. these articles establish a legal obligation to cooperate; but at any rate he excludes a binding obligation to observe human rights. 268. See Klabbers, Treaty Conflict, supra note 24, at 94–95. 269. Kälin, Non-refoulement, supra note 158, at 165. 270. For an explicit ‘opinio non-iuris’, see the decision of the Dutch Supreme Court in the Short case, 22 Netherlands Yearbook of International Law (1991) 433 at 436 in fine (‘The submission … that the European Convention [on Human Rights] takes precedence [over the NATO Status of Forces Agreement] under international law finds no support in law’). – But see the Swiss pronouncements in section 2.1.6 supra, where a preference for human rights treaties was expressed as a matter of law (but maybe Swiss constitutional rather than international law). 271. Cf. Ulrich Häfelin, Walter Haller and Helen Keller, Schweizerisches Bundesstaatsrecht (8th edn, Schulthess: Zürich, 2008) at 629, para. 1926a (the institutional enforcement mechanisms of the ECHR make it easier for the Swiss courts to accord it primacy over national statutory law; the courts would be more reluctant to accord a similar preference to other human rights treaties which lack such mechanisms).

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If, nonetheless, ‘human rights treaties’ as such were to prevail, it would have to be defined what that includes – for instance, the Refugee Convention of 1951? All ILO Conventions – or at least the eight ‘core Conventions’? The Council of Europe Framework Convention for the Protection of National Minorities of 1995? Or would one be misguided to categorise whole treaties, because the particular provision at issue would be decisive? In the latter case, would all provisions guaranteeing or conferring rights on individuals qualify for an elevated status, or only the more ‘fundamental‘ ones? 3.3.6. Balancing of all Relevant Factors Instead of a priority rule based on a single factor like speciality, temporal precedence or the content of the treaty, it could be submitted that a balancing of all relevant factors in the specific case is necessary. The treaty will be preferred which, in view of all aspects, has the best claim to priority. This approach was adopted by the Dutch Supreme Court in the Short case.272 The Swiss Federal Council also appears to support it for the resolution of conflicts among international law norms in general.273 The downside of this approach is that it leads to unpredictable results, at least as long as it does not develop clearer contours. In the final analysis, it would hardly differ from the ‘principle of political decision’, because a state could justify any result by invoking one of the various principles at hand, concealing the political nature of the decision. While it is possible that in the future, a balancing-of-interests rule emerges which develops into customary law, it does certainly not exist at present.274 3.3.7. Successive Application of Several Priority Rules If several priority rules could simultaneously be considered as recognized under international law, the question would arise how they relate to each other – the question of the ‘priority of priority rules’. An order of succession or subsidiarity would have to be set up, so that, e.g., the content of the treaties would be decisive in the first place, and only if this would not resolve the conflict (because both treaties would be on the same level in that regard), the lex prior rule would apply. At this time, the lack of any accepted priority rules may make such considerations appear purely theoretical. However, it is well possible that two priority rules with a relationship of subsidiarity are currently emerging: one granting priority to human rights treaties (or at least to the ECHR), and a subsidiary one 272. See text accompanying note 10 above. 273. See note 39 above and accompanying text. 274. See also Zuleeg, ‘Vertragskonkurrenz’, supra note 5, at 267, who rejects this rule because it leads to ‘unsatisfactory results’ and ‘has not been approved by the VCLT’.

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granting priority to the lex prior. This could well explain the seeming inconsistencies in state practice, where the earlier treaty is usually granted precedence, while in some ECHR cases, the later treaty (being the ECHR) was preferred275. As suggested here, all cases involving human rights treaties or the ECHR could be considered as decided on the basis of the content of the treaties, while (only) the remaining cases were decided on account of the temporal succession of the treaties. Thus, the seeming inconsistencies regarding a lex prior or posterior rule would largely disappear. 3.3.8. ‘Principle of Political Decision’ As has been seen, the VCLT does not provide any priority rules for the resolution of treaty conflicts, and customary law on this point is at least uncertain. If this is so, then it is up to the state which faces such a conflict to decide which of the conflicting obligations it wants to give preference to. Zuleeg calls this the ‘principle of political decision’.276 According to him, this decision belongs to the legislative and executive branches of the state. If they have not expressed a preference for one of the treaties, the (national) courts will have to give priority to the later one, according to the supposed will of the political branches. It is submitted that at its current stage of development, the principle of political decision or ‘equality’ of treaties represents the state of international law. The great majority of the literature agrees with this position.277 It is also implicitly shared by those who content themselves with stating that two conflicting treaties are both valid, without mentioning any priority rules,278 and by those who deny 275. See text after note 166 supra. 276. Zuleeg, ‘Vertragskonkurrenz’, supra note 5, at 267. 277. Lucius Caflisch and Antônio A. Cançado Trindade, ‘Les conventions americaine et européenne des droits de l’homme et le droit international général’, Revue générale de droit international public (2004) 5–62 at 24–25; Jean Combacau, Le droit des traités (Presses Universitaires de France: Paris, 1991) at 98–100, 113; Guerchon, ‘La primauté’, supra note 28, at 733–36; Lagodny, Die Rechtsstellung, supra note 21, at 102–08; Mus, ‘Conflicts’, supra note 132, at 230–31; Pauwelyn, Conflict, supra note 5, at 426–28 (with the exception of treaties directly conflicting with an earlier treaty that explicitly forbids such treaties, so called ‘illegal’ treaties; see at 298–301, 426, 427 n.212); Sadat-Akhavi, Methods, supra note 92, at 64–66, 72; SeidlHohenveldern and Stein, Völkerrecht, supra note 106, at 95, no. 439; Seidl-Hohenveldern, ’Hierarchy of Treaties’, supra note 48; Wilting, Vertragskonkurrenz, supra note 92, at 113. – Many of these authors only note the absence of a priority rule under the VCLT and do not discuss whether one exists under customary law. However, their not even mentioning this possibility strongly indicates that they do not seriously consider such a customary rule either. 278. Aust, Modern treaty law, supra note 102, at 216; Doehring, ‘Vertragskollisionen’, supra note 22, at 421 in fine, 424–25; the same, Völkerrecht, supra note 109, at 150–51 no. 349 (but with the important exception of acting in ‘bad faith’, meaning in knowledge of the earlier treaty); Hans Kelsen, ‘Conflicts Between Obligations Under the Charter of the United Nations and Obligations Under Other International Agreements’, 10 University of Pittsburgh Law Review (1949) 284–94 at 286–87; the same, The Law of the United Nations (Stevens & Sons: London,

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the existence of priority rules279 – if there are no such rules, the state bound by two treaties has to decide how to prioritize them.

4. Conclusions and Outlook With an ever-increasing number of treaties, conflicts among them could be expected to be on the rise as well. For a neat resolution, international law would have to indicate how to prioritize incompatible treaty obligations. Yet while it provides such rules for conflicts between treaties with identical parties (AB/AB type),280 no similar rules have developed for conflicts of the AB/AC or ABC/AD type. There is some support in practice and scholarship for a priority of human rights treaties, especially the ECHR, and of the earlier over the later treaty, but these rules have not yet crystallized into customary law. Thus, states still have to decide between irreconcilable obligations on the basis of political or other extra-legal considerations. Does this mean that international law steers towards chaos, with ever more conflicting treaties piling up, each of them equally valid and binding? Does the lack of a hierarchy among treaties further jeopardize the unity und certainty of international law, which require that each legal question finds a single and (theoretically) predictable answer? Such concerns, while theoretically understandable, are hardly justified in practice. Admittedly, conflicts between treaties with partially overlapping membership have sometimes challenged courts and governments, forcing them to flout one of the engagements in breach of the principle pacta sunt servanda. Yet overall, true conflicts, which could not be resolved othery than by disregarding one of the treaties and incurring state responsibility, are surprisingly rare. Partially, this can be explained by the ability of states to work out solutions beyond the narrow 1950) at 113–14; McNair, The Law of Treaties, supra note 97, at 221–22; Reuter, Introduction, supra note 97, at 99, para. 164; 119–20, paras 202–03. 279. Opinion of the Dutch Attorney-General Strikwerda in the Short case, 29 ILM (1990) 1385 (‘[T]he law of nations does not provide a way out of the dilemma caused by the incompatibility of [treaty] obligations’); Comment of the Netherlands on a draft article for treaty conflicts, YILC 1966 II, at 75 and 322 (‘There might be some justification for concluding that the problem [of successive treaties between parties, some of which are the same parties, giving rise to incompatible obligations] is not yet ripe for codification. Customary international law has not yet crystallized in this respect’); Forteau, ‘L’ordre public’, supra note 33, at 17, para. 56; György Haraszti, Some Fundamental Problems of the Law of Treaties (Akadémiai Kiadó: Budapest, 1973) at 297 (no ‘differences of rank among the various kinds of treaties, as in all of them the will of subjects of international law finds an expression’); see also ‘Fragmentation, Final Report’, supra note 238, at 416–17 (‘The question which of the incompatible treaties should be implemented and the breach of which should attract State responsibility cannot be answered by a general rule’). 280. See section 3.2. supra.

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framework of priority rules. Not infrequently, it seems that one of the parties refrains from asserting its rights, probably as result of diplomatic arrangements. However, the great number of possible conflicts is obviously avoided in the first place. When contracting, states are seldom oblivious of their previous commitments towards other states. Most often, this will prompt them not to enter into conflicting engagements, or to include a treaty clause granting priority to existing treaties. Apart from such avoidance of conflicts in the first place, states may also try to ensure that if a conflict arises, there will be a way to accommodate both treaties. This can be achieved by including sufficiently wide exception clauses, such as reserving the ‘ordre public’. The ordre public may then be interpreted to encompass obligations under other treaties, particularly those on human rights. A more direct way of conflict prevention is to include substantive provisions corresponding to those of another treaty. This would be the case, for instance, if the law of an inter- or supranational organisation contained comparable or identical provisions on human rights as those of a specific human rights treaty. Such concurrence may even be achieved, most elegantly, by direct reference to the human rights treaty, whose provisions would thereby be adopted wholesale into the law of the organisation.281 Despite frequent misgivings about the fragmentation of international law – its splitting into different régimes which operate independently of each other, bound to generate conflicting obligations –, it is the opinion of this author that there is, in fact, a reverse trend, at least with regard to human rights and environmental law. There is growing awareness that, for instance, extradition law or trade law cannot ignore the human rights obligations or environmental responsibilities of the parties. It is to be expected that treaty clauses preventing or addressing such conflicts will be included in future non-human rights and non-environmental treaties with increasing frequency. As this happens, the question of priority rules in customary law becomes less and less relevant. At some point, one might ask whether such treaty clauses themselves could generate customary priority rules – but this will be the task of a future researcher.

281. See, for instance, Art. 6(3), Treaty on European Union (7 February 1992, in force 9 November 1993, consolidated version at OJ 2012 No. C326/13), declaring that ‘[f ]undamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms ..., shall constitute general principles of the Union’s law.’

Unidentified Victims of Sex-Trafficking and Foucauldian Biopower: a Study on (Finnish) Anti-Trafficking Discourses and Practices Ukri Soirila* AbstrAct: It is widely held in academic literature that perhaps the gravest problem of current anti-sex-trafficking measures is the identification of victims of trafficking. As a consequence, potential victims are deported as illegal immigrants and foreign prostitutes or even detained as criminals. It is argued in this article that to understand why this problem has been unsolvable we ought to study Michel Foucault’s theories of biopower and governmentality and their later applications by other thinkers such as Giorgio Agamben. It is demonstrated that victims of sextrafficking are perceived as threats to the population via different biopolitical risk profiles and must, as such, be either normalized by drowning them into the mass of the mainstream population, or be excluded from the society. This is achieved especially through myriad seemingly insignificant discourses and practices operating inside the anti-trafficking campaign. These discourses establish what Jo Doezema has called ‘myth of trafficking’. As an outcome of the establishment of this myth, victims that do not fit certain stereotypes are perceived as illegal immigrants and foreign prostitutes. These stereotypes affect decision-makers especially in zones of indistinction – generated through different practices – where authorities enjoy a wide margin of discretion and the influence of biopolitical norms, arising from within the community, is increased. In order to demonstrate how these areas of discretion are generated in practice, the author draws examples especially from the Finnish anti-trafficking measures and legislation. Keywords: trafficking in human beings, sex-trafficking, biopower, biopolitics, Foucault, homo sacer

*

I would like to thank Jarna Petman, Miia Halme-Tuomisaari, Jens Kremer and the two anonymous referees whose insightful and helpful suggestions I tried to incorporate into the article to the best of my abilities. There are countless individual points and arguments that I owe entirely to these persons – especially the two referees – but I will not indicate them further in the article, simply for the reason that those references would be distractingly frequent. All responsibility for any mistakes or some controversial interpretations that were still left in the text is all mine.

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1. Introduction Trafficking in human beings (THB) has evolved into one of the most discussed global criminal concerns of the twenty-first century. As put by one publicist on the field, ‘it is cast by political leaders, alongside terrorism and drug trafficking, as one of the three “evils” that haunts the globe, and it has become the subject for much academic research, policy work, and action in a wide variety of disciplines and fields.’1 The increased attention and resources devoted to anti-trafficking has not achieved the hoped results, however. Several studies have demonstrated that problems lie especially in the identification of victims of trafficking.2 For example, in Finland, only a few dozen victims have been identified and guided to the victim assistance system,3 and only five cases have been heard in the courts as trafficking, even though the Ministry of Foreign Affairs has estimated that hundreds of victims of trafficking arrive yearly to Finland to be exploited here, or to be transferred to another country.4 The consequences of these kinds of problems are severe: potential victims are deported as illegal aliens, closed to immigration facilities, or even prosecuted for status related offences such as illegal entry, illegal stay or illegal work.5 Some excellent analyses have already been provided in order to explain the failures to identify victims of trafficking.6 The Finnish National Rapporteur, for 1.

2.

3. 4. 5.

6.

Kamala Kempadoo, ‘Introduction: From Moral Panic to Global Justice: Changing Perspectives on Trafficking’, in Kamala Kempadoo, Jyoti Sanghera and Bandana Pattanaik (eds), Trafficking and Prostitution Reconsidered: New Perspectives on Migration, Sex Work, and Human Rights (Paradigm Publishers: Boulder, London, 2005) vii-xxxiv at vii. See Venla Roth, Defining Human Trafficking, Identifying Its Victims: A Study on the Impact and Future Challenges of the International, European and Finnish Legal Responses to Prostitutionrelated Trafficking in Human Beings (UNIPRINT: Turku, 2010); Mohamed Y. Mattar, ‘Human Security or States Security? The Overriding Threat in Trafficking in Persons’, 1 Intercultural Human Rights Review (2006) 249-279 at 268-271; Johnny E. McGaha and Amanda Evans, ‘Where Are the Victims? The Credibility Gap in Human Trafficking Research’, 4 Intercultural Human Rights Law Review( 2009) 239-266. See The Finnish National Rapporteur on Trafficking in Human Beings, Report 2010: Trafficking in human beings, phenomena related to it, and implementation of the rights of human trafficking victims in Finland (Vähemmistövaltuutettu: Helsinki 2010) at 45. Ministry of the Interior, Ihmiskaupan vastainen toimintasuunnitelma, available at: http:// www.intermin.fi/intermin/images.nsf/files/985d8d85dd6bc0c3c22573b8003f68fa/$file/ ihmiskaupan_vast_toimsuunn.pdf (last visited 10.8.2011) at 18. Anne T. Gallagher, ‘Human Rights and Human Trafficking: Quagmire or Firm Ground? A Response to James Hathaway’, 49 Virginia Journal of International Law (2008-2009) 789-848 at 831; Joan Fitzpatrick, ‘Trafficking as a Human Rights Violation: The Complex Intersection of Legal Frameworks for Conceptualizing and Combating Trafficking’, 24 Michigan Journal of International Law (2002-2003) 1143-1167 at 1154; Mattar, ’ Human Security or States Security?’, supra note 2, at 268-271; McGaha, and Evans ‘Where Are the Victims?’, supra note 2. See for example Roth, Defining Human Trafficking, supra note 2; The Finnish National Rap-

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example, lists the following factors as possible explanations: THB is a hidden crime; victims are afraid of revenge if they identify themselves to the authorities; victims are suspicious of authorities; victims are hard to find for they are marginalized; and the threshold for seeking help is high because the victims do not know their rights or are ashamed to betray their family or ‘friends’ – friends that often act as the perpetrators.7 All of these factors are certainly very important but it must be noticed that they all relate to the hidden nature of the crime of trafficking and to some personal difficulties that the victims may face. Yet Venla Roth has in her dissertation detected also several problematic features and practices in the practices of the Finnish authorities and in the anti-trafficking legislation and measures.8 Furthermore, it has also been suggested in more cynical studies that ‘[s]ome states, aided and abetted by civil society groups, continue to manipulate the global momentum against trafficking to wage their own wars against perceived social harms such as prostitution and illegal migration.’9 It seems, therefore, that more attention could be paid to the anti-trafficking campaign itself. I do not doubt the sincerity of authorities working against trafficking. In fact, they have shown great enthusiasm to combat this atrocity: anti-trafficking legislation has been widely adopted on the national level10 and punishments for the crime have been severe, even if rare.11 Yet the analysis of Roth regarding the details of Finnish anti-trafficking measures suggests that there porteur on Trafficking in Human Beings. Report 2010, supra note 3; Gallagher ‘Human Rights and Human Trafficking, supra note 5; Fitzpatrick‘Trafficking as a Human Rights Violation, supra note 5. 7. Finnish National Rapporteur on Trafficking in Human Beings. Report 2010, supra note 3, at 9. 8. Roth, Defining Human Trafficking, supra note 2, Chapter V at 179-290. These practices will be studied in more detail in Chapter 3. 9. Gallagher ‘Human Rights and Human Trafficking’, supra note 5, at 830-831. 10. On the legislation and practice of Belgium, the Netherlands and Germany, see Patrick Twomey, ‘Europe’s Other Market: Trafficking in People’, 2 European Journal of Migration and Law (2000) 1-36 at 22. On USA, see Angela A. Jones, ‘Post-traumatic Stress Disorder and Victims of Human Sex Trafficking: A Perpetuation of Chronic Indignity’, 4 Intercultural Human Rights Law Review (2009) 317-354 at 323-327; Johnny E McGaha. & Amanda Evans, ‘Where Are the Victims? The Credibility Gap in Human Trafficking Research’, 4 Intercultural Human Rights Law Review (2009), 239-266 at 240-242. On Thai, Polish and UK legislation, see Tom Obokota, Trafficking of Human Beings from a Human Rights Perspective: Towards a Holistic Approach (Martinuf Nijhoff Publishers: Leiden and Boston, 2006) at 47-52, 60-62 and 68-71 respectively. Mattar lists all the penal codes in the world that criminalize THB (Mohammed Y. Mattar, ‘Incorporating the Five Basic Elements of a Model Antitrafficking in Persons Legislation in Domestic Laws: From the United Nations Protocol to the European Convention’, 14 Tulane Journal of International and Comparative Law (2005-2006) 357-419 at 359-360, note 4), and all laws that deal specifically with THB ( note 5). 11. See United States of America Department of State, 11th annual Trafficking in Persons Report, available at (last visited 12.8.2011). The annual Trafficking Reports list anti-trafficking measures, including punishments, country by counry.

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exist several problematic details and practices that twist the outcome. I also do not want to outright reject the claim that the anti-trafficking campaign is used to fight other social harms; even if I would be very hesitant to accept that this is some kind of explicit plan. I suggest therefore, that there could be use for a more theoretically orientated approach that could link together the aforementioned conclusions of more practical studies. It is my opinion that the tools for such an analysis, conducted in this article, are provided by Foucault’s theories of biopolitics and governmentality. The advantages of a Foucauldian approach are several. Not only is Foucault’s concept of power non-subjective – therefore being able to explain why the sincere attempts to help the victims of trafficking turn into a fight against several social harms – but it is also capable of analyzing details detected by Roth as a part of the countless cogs and gears through which this power operates. Furthermore, the twist that Giorgio Agamben gives to the theory of biopolitics allows us to analyze in greater detail the difficult situation of the victims of trafficking on the threshold of the legal sphere. The scope of the article is limited to sex-trafficking and its structure goes as follows. After this Introduction, the article provides, in Chapter 2, an overview of the theories of biopower and governmentality, which are used in Chapter 3 to study the anti-trafficking campaign from a new perspective. Examples are drawn especially from the Finnish anti-trafficking measures and legislation. The conclusion drawn from this analysis is that there exists a certain subliminal biopolitical bias hidden in the anti-trafficking campaign. The consequences of this bias to the victims of trafficking are studied in Chapter 4, before conclusions in Chapter 5.

2. Biopower, Governmentality and the Victims of Trafficking as Threats to the Population ‘Biopower’ is the term that Foucault uses to describe the kind of power that focuses on human beings as a species or a population – on the detailed control of human life – in the attempt to make the population as strong, efficient and productive as possible. It emerged as a result of the birth of capitalism and advancements in medicine, biology and statistic in a situation where there was need for new technologies of power, too much escaping the classical sovereign power that was incapable of exercising strict control over its subordinates.12 If sovereign power was exercised by arousing fear with the help of grandiose execution acts, and could therefore be called the right to the right to let live or make die, biopower could be described as the right to make live or let die. It fosters and administers human life and the population on two levels, both of which are included in my 12. Michel Foucault, Discipline and Punish: The Birth of the Prison (Penguin: London, 1977) at 54-57, 76-78.

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definition of biopower in this article. At the level of individuals, disciplinary power – that was sometimes described as a separate power and sometimes included within biopower by Foucault –13 shapes individuals through normalizing and corrective techniques into functional parts of the society in different institutions, such as kindergartens, schools, prisons and the army.14 The thus formed machine or body politic is then manipulated at the state (or nowadays perhaps global15) level by biopower as regulatory power that targets the species-body instead of the body of an individual.16 This manipulation is accomplished through different societal institutions and functions – such as health care, medical assistance, social welfare and rationalization of mechanisms of insurance– that guarantee the material survival of the population: biopower is interested in birth and mortality rates, biological deficiencies and environmental matters, anything that affects the vitality of the population. It has become so successful in assuming responsibility for the life process of its subjects that an individual in a biopolitical society can no longer stay alive without the system.17 In order to understand what this biopower has to do with the victims of trafficking, however, we must study Foucault’s concept of power further. First, we must analyse how power (that takes the form of biopower in our contemporary societies) operates. And secondly, it must be clarified how biopower, aimed to make life live and to nurture it, can in certain cases become violent. Power, according to Foucault: must be understood in the first instance as the multiplicity of force relations immanent in the sphere in which they operate and which constitute their own organization; as the process which, through ceaseless struggles and confrontations, transforms, strengthens, or reverses them […] Power is everywhere, not because it embraces everything, but because it comes from everywhere […It] is simply the 13. See Chloë Taylor, ‘Biopower’, in Dianna Taylor (ed.), Michel Foucault: Key Concepts (Acumen: Durham, 2011) 41-54 at 44-46. 14. Foucault, Discipline and Punish, supra note 12, passim, but especially 210-217. 15. For a critical assessment of this topic, see David Chandler, ‘Critiquing Liberal Cosmopolitanism? The Limits of the Biopolitical Approach’, 3 International Political Society (2009) 53-70. 16. Michel Foucault, Security, Territority, Population: Lectures at the Collège de France, 1977-1978 (Palgrave Macmillan: New York, 2004) at 107-110; C. Taylor ‘Biopower’, supra note 13, at 44-45; Kai Alhanen, Käytännöt ja ajattelu Michel Foucault’n filosofiassa (Gaudeamus: Helsinki, 2007) at 141-142; Michael Dillon and Julian Reid, The Liberal Way of War: Killing to make life live, (Routledge: London and New York, 2009) at 84-85; Michael Hardt and Antonio Negri, Empire (Harvard University Press: Cambridge and London, 2001) at 24. 17. Perhaps a good example of an extreme biopolitical society would be the world of the movie The Matrix, where humans are attached to machines that carefully manage every bodily function of humans in order to make them as good energy sources as possible and where humans are reduced to binary codes on a computer screen. As the anonymous reviewer of the article correctly pointed out, there is, however, the notable exception that whereas the power of the machines in The Matrix is carefully kept secret, the administration of human life of our biopolitical societies is exercised completely transparently.

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over-all effect that emerges from […] mobilities, the concatenation that rests on each of them and seeks in turn to arrest their movement […Power] is the name that one attributes to a complex strategical situation in a particular society.18

Power is, therefore, not a personal skill or capacity of an individual, nor is it an institution or a structure. Power is rather a complicated ratio of different forces.19 Force, that can be understood in a Newtonian sense as something that can put an object into motion, means the possibility to carry out different tasks – labor force and coercive force are good examples – and power is then an attempt to manage and control these forces in order to achieve some aim.20 When this kind of situational power becomes settled, it transforms into planned, calculated use of power – what Foucault called governmentality.21 As long as the use of power and surveillance is consistent and complete enough, the subjects of power internalize it and start to control themselves. This form of power is embodied in the concept of Panopticon, a central tower or an ‘observance house’ in the middle of a prison – or another institution – from which prison guards can spy upon prisoners without the prisoners knowing whether they are being monitored or not. In this situation in which a prisoner could potentially be under surveillance at any given moment, the prisoners find themselves in a power relation in which the power acts inside them: ‘[h]e who is subjected to a field of visibility, and who knows it, assumes responsibility for the constraints of power; he makes them play spontaneously upon himself […]’22 The prisoners absorb the demands of power and start to obey them instinctively.23 When relations of power are crystallized into governmentality, they become relatively independent of the aims of the subjects partaking of the practices: it is insignificant who uses power and what her motive is. Foucault came to the conclusion, therefore, that power, and especially governmentality, are fundamentally non-subjective.24 As Foucault explains, large strategies of power are ‘anonymous, almost unspoken strategies which coordinate the loquacious tactics whose ‘inventors’ or decisionmakers are often without hypocrisy.’25 Through governmentality, the (bio)political society governs, arranges, maintains and controls the population and goods. Governmentality, therefore, enables biopolitics. Societies have become 18. Michel Foucault, The History of Sexuality, vol. 1: An Introduction, (Penguin: London, 1978) at 92-93. 19. Richard A. Lynch, ‘Foucault’s theory of power’, in Dianna Taylor (ed.) Michel Foucault: Key Concepts (Acumen: Durham, 2011) 13-26 at 21. 20. Costas Douzinas & Adam Gearey, Critical Jurisprudence: The Political Philosophy of Justice (Hart Publishing: Oxford and Portland Oregon, 2005) at 59; Alhanen, Käytännöt, supra note 16, at 119-120. 21. Alhanen, Käytännöt, supra note 16, at 124. 22. Foucault, Discipline and Punish, supra note 13, at 202. 23. Ibid., at 201-203. 24. Ibid. 25. Foucault, The History of Sexuality, supra note 18, at 95.

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dependent on governance that is actualized through different practices, rituals, norms and tactics.26 While rules have always been indeterminate, the increasing juridification and normativization– norm is a term which in Foucauldian studies refers to the regulative power of the normal (the way people normally act) that tries to absorb all ‘otherness’ inside it, instead of a judicial norm that separates legal from illegal – generated by governmentality constantly multiplies the kinds of areas of discretion that give biopower more room to operate. The power of the normal rises out of the community and is therefore internalized by different actors, affecting subliminally the decision-making process in the condition of indeterminacy. As Chloë Taylor writes, ‘[b]iopower is able to access the body […] because it is internalized by subjects rather than exercised from above […] and because it is dispersed throughout society rather than located in a single individual or government body.’27 The primary aim of biopower is to nurture life. Yet, in order to understand the effects of biopolitics on unidentified victims of trafficking, it is important to notice that violence still constitutes an inherent part of biopolitical societies. In order to make the population as strong as possible, elements that pose a threat to its well-being, such as dangerous groups or individuals must be eliminated, just like a gardener eliminates weeds in order to give her plants more room to live. It is necessary to ‘to fragment, to create caesuras within the biological continuum addressed by biopower,’28 in order to detect neutralize the ‘degenerates’ who cannot be cured.29 The exclusion of these dangerous parts of the society makes the remaining population stronger, protects it against its internal threats, and guarantees it more room and resources to live. 30 Violence has therefore not been erased in biopolitical societies; it has simply changed its form. Risks that are not deemed irreparable can be shaped through disciplinary power into functional parts of the society in different institutions, making these threats ‘disappear’ into the mass.31 But if an individual is irreparable, she must be excluded from the society or otherwise eliminated. Illegal immigrants can be deported, mentally disabled patients locked into asylums and different outcasts simply left outside all societal functions, as long as they do not endanger the mainstream population. 26. Foucault, Security,Territory, Population, supra note 16, at 99, 104-110; Judith Butler, Precarious Life: The Power of Mourning and Violence (Verso, London and New York, 2004) at 51-53. 27. C. Taylor ‘Biopower’, supra note 13, at 43. 28. Foucault, Michel, Abnormal: Lectures at the Collège de France 1974-1975 (Verso: London, 2003) at 255. 29. Ibid., at 316-318. 30. Michel Foucault, Society Must Be Defended: Lectures at the Collège de France, 1975-1976 (Picador: New York, 2003), at 254-255. See also Johanna Oksala, Violence and the Biopolitics of Modernity, 10 Foucault Studies (2010) 23-43 at 38-39; C. Taylor ‘Biopower’, supra note 13, at 50; Michael Dillon, Cared to Death: The Biopoliticised Time of Your Life, 2 Foucault Studies (2005) 37-46 at 41-42, 44. 31. See Hardt & Negri, Empire, supra note 16, at 23.

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It is on these occasions that we see how biopower is actually linked not only to disciplinary power but also to sovereign power. This aspect is present already in the analysis of Foucault who explicitly notes that disciplinary power and biopower did not simply substitute sovereign power, but rather complemented it.32 It is not entirely clear, what is the exact relation between sovereign power and biopower, however. Yet, it seems quite safe to suggest that, in Foucault’s theory, sovereign power is not part biopower,33 but rather that sovereign power is present in the triangle of forces of governmentality, discipline, sovereignty, through which power operates.34 Furthermore, Foucault’s analysis seems to suggest that sovereign power was weakened with the emergence of biopower. Other thinkers have developed the relation between sovereign power and biopower further, and in a somewhat different direction, however. It is, in particular, argued by some that the two forms of power share an even stronger bond than the one suggested by Foucault. According to Judith Butler, sovereign power emerges, in the form of expert discretion, from within biopolitical governmentality as the latter suspends the rule of law in order to allow more fluent governance.35 This approach has the advantage of articulating in clearer terms the relation between the two forms of power, without assuming the diminishing of sovereign power, but still inheres the problem that it seems to suggests that there has been a time where there existed clear-cut rules and a strong rule of law, now replaced with governmental norms – a time without the indeterminacy of rules. In other words, the analysis sidesteps the lessons that critical legal studies (CLS) have taught us. According to my – admittedly controversial – reading of him, this flaw has, however, been corrected by Giorgio Agamben’s theory. While there are some excellent studies that claim the complete opposite,36 it is my opinion that Agamben’s view of law, sovereign power and biopolitics, as well as his controversial concept of state of exception, is quite compatible with the indeterminacy thesis of CLS – 32. Foucault, Security,Territory, Population, supra note 16, at 219; Oksala, ‘Violence’, supra note 30, at 36. 33. Foucault, Society Must Be Defended, supra note 30, at 35. 34. Michel Foucault, The History of Sexuality, vol. 1: An Introduction, (Penguin: London 1981) at 137, 139, 145-146. See also Foucault, Society Must be Defended, supra note 30, at 245; Foucault, Security, Territory, Population, supra note 16, at 106-107; Jemima Repo, The Biopolitics of Gender (Unigrafia: Helsinki, 2011) at 180; Dillon and Reid, The Liberal way of War, supra note 16, at 93; Roberto Esposito, Bíos: Biopolitics and Philosophy (University of Minnesota Press: Minneapolis, 2008) at 57. 35. Butler, Precarious Life, supra note 26, at 53-67. 36. See Akbar Rasulov, ‘Writing about Empire: Remarks on the Logic of a Discourse’, 21 Leiden Journal of International Law (2010) 449-471. For other positions in addition to Rasulov’s very critical and my highly symphatetic reading of Agamben, see for example Tom Frost, ‘Agamben’s Sovereign Legalization of Foucault’, 30 Oxford Journal of Legal Studies (2010) 545-577; Daniel McLoughlin, ‘In Force without Significance: Kantian Nihilism and Agamben’s Critique of Law’, 20 Law and Critique (2009) 245-257; Jessica Whyte, ‘”I Would Prefer Not To”: Giorgio Agamben, Bartleby, and the Potentiality of Law’, 20 Law and Critique (2009) 309-324.

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even if I do not claim that Agamben would have excplicitly taken it into account or would even necessarily be aware of its existence. As is well known, Agamben’s thought is based on the concept of exception. But it is crucial to notice that the exception is not, according to Agamben, outside law. Instead, Agamben emphasizes that ‘the most proper characteristic of the exception is that what is excluded in it is not, on account of being excluded, absolutely without relation to the rule.’ Rather, ‘[t]he situation created in the exception has the peculiar characteristic that it cannot be defined either as a situation of fact or as a situation of right, but instead institutes a paradoxical threshold of indistinction between the two.’ This applies also for law. To quote Agamben again, ‘[t]he “sovereign” structure of law, its peculiar and original force, has the form of a state exception in which fact and law are indistinguishable (yet must nevertheless be decided on).’37 The form of law is therefore exactly that of indeterminacy: abstract laws can capture factual life, with all its peculiarities, only as an exception. It is impossible to decide on life. Or as he writes in State of Exception, the application of law ‘is in no way contained within the norm and cannot be derived from it’: there is ‘no internal nexus’ between the norms and its application ‘that allows one to be derived immediately from the other.’38 And yet, almost all aspects of our lives are now regulated by different laws and rules. It is, according to my reading, against this background that we must understand Agamben’s controversial claim that we live in a ‘permanent state of exception’: we live in such a condition not because we live outside law but because we live in a world where law has permeated all aspects of our societies. The ‘permanent state of exception’ is therefore a matter of proliferation of rules rather than withdrawal of law or the replacement of clear rules with indeterminate norms. Law has always been indeterminate. As Agamben writes: “the state of exception [the condition of indeterminacy] is the – secret and truer – life of the law.“39 It is true throughout his work Agamben too uses expressions that seem to suggest that it would be a modern phenomenon that the state of exception withdraws what used to be clear rules. In my opinion, however, there is enough evidence to argue that this is more because of careless use of dramatic expressions – partly deriving from Agamben’s peculiar style, especially his frequent use of paradigmatic examples that must not be taken as historic or literal –40 rather than a lack of critical understanding of law. 37. Giorgio Agamben, Homo Sacer: Soverign Power and Bare Life (Stanford University Press, 1998) at 27. 38. Giorgio Agamben, State of Exception (The University of Chicago Press, Chicago and London, 2003) at 40. 39. Ibid., at 70. 40. See Frost, ‘Agamben’s Sovereign Legalization of Foucault’, supra note 36, at 553-554. For a critique of Agamben’s style, see Ernesto Laclau, ‘Bare Life or Social Indeterminacy?’ in Matthew Calarco and Steven DeCaroli (eds), Giorgio Agamben: Sovereignty & Life (Stanford University

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In any case, Agamben’s work provides us another theory that establishes a strong bond between sovereign power and biopower – one that is based on a more thorough analysis of law that that of Butler’s. Since, according to Agamben, the function of the sovereign is to trace the indeterminate threshold between inside and outside, law and fact, it is a prerogative of the sovereign to decide on life that is constantly on that threshold – life that Agamben calls bare life, the fleshy material that forms the object of biopower. Therefore, there exists for Agamben an originary link between sovereign power and biopower. What we should draw from the theories of Foucault, Butler and Agamben with the rest of this article in mind – regardless of whether we accept this Agamben link or deny it in favor of the Foucauldian view of the relation of biopower and sovereign power as historically contingent and parallel – is that sovereign power has not withered away but is rather ‘hidden within various institutions in which petty sovereigns can reign’,41 as put in quite provocative words by Johanna Oksala. The power of these sovereigns may be tied to different practices and policy aims but they still make sovereign decisions – that is decisions that have self-preservation as their ultimate aim– in the condition of indeterminacy.42 While biopower is focused on the nurturing of life, it can still open sites for unprecedented, but carefully hidden, violence. Now that we are getting closer the topic of victims of trafficking as threats to the population and victims of bio-sovereign violence, it is important to notice that a biopolitical threat is not necessarily the kind of external Enemy characteristic of traditional geopolitical security. Biopolitical security is irrevocably linked to governmentality and risks: it is a matter of managing risks to the population by security technologies, of calculating probable futures and acting and thinking accordingly in order to optimize the state of life. As Nikolas Rose explains, the biopolitical society tries ‘to identify, treat, manage or administer those individuals, groups, or localities where risk is seen to be high.’43 This can be accomplished in many ways, for example through campaigns aimed to alleviate or reduce risks, through strategies for managing high-risk groups and even through preventive interventions into the lives of risky individuals.44 It is therefore impossible to make a distinction between security and biopolitics; biopolitics becomes a matter of installing security mechanisms ‘around the random element inherent in a population of living beings so as to optimize a state of life.’45 As Michael Dillon and Luis Lobo-Guerro put it, ‘there is no biopolitics which is not simultaneously

41. 42. 43. 44. 45.

Press: Stanford 2007) 19-22. For a more symphatetic view, see Leland de la Durantaye, Giorgio Agamben: A Critical Introduction (Stanford University Press: Stanford 2009) at 220-226. Oksala, ‘ Violence’, supra note 30 at 42. Butler, Precarious Life, supra note 26, at 53-67. Nikolas Rose, ‘The Politics of Life Itself ’, 18 Theory, Culture & Society (2001) 1-30 at 7. Ibid., at 7. Foucault, Society Must Be Defended, supra note 30, at 246.

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also a security apparatus. There is no biopolitics of this, or a biopolitics of that. When one says biopolitics one says security, albeit in a certain way.’46 When security becomes management of risks, threats no longer refer to concrete, particular dangers, but are mixtures of abstract risk factors that have certain probability of realizing into concrete threats or hampering the circulation that is necessary for life to live. Danger has therefore become virtual, based on assumptions and details, and associated with high risk groups instead of concrete persons and behavior.47 Moreover, risks, generated through different kinds of calculative rationalities, become a way of governing the population and producing certain kinds of subjects. Even though the trafficked persons might not at first glance seem like what one would intuitively (or geopolitically) call a threat to the society – they are victims, not criminals after all – it is not difficult to see that they start to appear as risk factors from the biopolitical security perspective. There are at least four, interlinked, reasons for this. First, trafficking is often linked to terrorism, drug trafficking and other security threats.48 Therefore, victims of trafficking are associated with risky phenomena, even if they were not seen to be the main perpetrators. As such, they are classified as a risk group, associated with abnormal behavior, and put under increased surveillance. Second, as Claudia Aradau explains, the victim status itself can also start to seem risky. It is quite common for NGOs to create all kinds of risk profiles, drawing from psychological knowledge and biographical information, in order to emphasize the vulnerability of the victims, to raise pity and to help in the rehabilitation of the victims. These profiles consistently show that the victims have been exposed to violence in the past and have often been abandoned by their families. They come from dysfunctional families and many have experienced 46. Michael Dillon & Luis Lobo-Guerro, ‘Biopolitics of Security in the 21st Century: an introduction’, 34 Review of International Studies 2008, 265-292 at 266. 47. See Claudia Aradau , ‘The Perverse Politics of Four-Letter Words: Risk and Pity in the Securitisation of Human Trafficking’, 33 Millenium: Journal of International Studies (2004) 251-277 at 264-269. 48. Kempadoo, Kamala, ‘Introduction: From Moral Panic to Global Justice: Changing Perspectives on Trafficking’, in Trafficking and Prostitution Reconsidered: New Perspectives on Migration, Sex Work, and Human Rights (Kempadoo, Sanghera and Pattanaik eds.), Paradigm Publishers, Boulder, London, 2005, vii-xxxivat vii; Guild, Elspeth, Immigration and Criminal Law in the European Union: Legal Measures and Social Consequences of Criminal Law in Member States on Trafficking and Smuggling in Human Beings, in Immigration and Criminal Law in the European Union: Legal Measures and Social Consequences of Criminal Law in Member States on Trafficking and Smuggling in Human Beings (Guild ed.), Martinus Nijhoff Publishers, Leiden and Boston, 2007, 1-6 at 3-4; Arthur Rizer & Sheri R Glaser, ‘Breach: The National Security Implications of Human Trafficking’, 17 Widener Law Review (2011) 69-94 at 76; James C Hathaway, ‘The Human Rights Qugmire of “Human Trafficking”’, 49 Virginia Journal of International Law (2008-2009) 1-59, at 6; Mohamed Y. Mattar, ‘Human Security or States Security? The Overriding Threat in Trafficking in Persons’, 1 Intercultural Human Rights Review (2006) 249-279.

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sexual and psychological abuse. Indeed, the victims typically become trafficked because they have no protectors and no alternatives, and have therefore ended up in the hands of traffickers through coercion or fraud. They are, thus, often outcasts of the society – those that have already been excluded from their community and start to appear as ‘doubly traumatised, both by the experience of trafficking and by earlier/childhood experiences of abuse.’49 Hence, despite the benevolent motives of the NGOs, when victims are profiled as traumatized outcasts, they start to appear as a high risk group from a security perspective. This is because, according to psychological knowledge, victimization does not only entail a high risk of re-victimization, but it is also an indicator of future risky behavior: victims often adopt certain models of behavior and become perpetrators themselves. This activates biopolitical risk management mechanisms with the result that ‘[t]he expert knowledge mobilised by NGOs with the purpose of helping trafficking women becomes “hijacked”’ by authorities that are more interested in maintaining security and minimizing risks than in acting according to the interest of the victims. 50 Third, and in a similar vein, if the aim of biopower is to build as strong and effective a population as possible, the outcasts of other societies do not seem like a welcomed addition to the body politic that it is managing. Not only are trafficked persons potential disease-carriers, and as such a threat to the health of the population, but, beside this banal point, we must also remember that the primary reason for a biopolitical society to turn violent is that the more the weakest parts of the society, the ‘degenerates’ and ‘abnormals’, are eliminated, the more improved and stronger the rest of the population becomes.51 As unsuccessful outcasts of their societies, the victims of trafficking must therefore be kept apart from the population, in order to maintain its health and vitality. Fourth, it must be remembered that sex-trafficking is linked to prostitution and brothels. This brings several new risk factors into the calculation. Interestingly, the whole anti-trafficking campaign first began in the 19th century England, when British authorities discovered that the effectiveness of the British army was by put in danger by venereal diseases. Consequently, prostitution became strictly regulated and prostitutes were subjected to different disciplinary techniques and soon excluded from the society. This led many women to find opportunities elsewhere, some becoming easy targets of abuse abroad and generating sensational stories of ‘white slave trade’.52 What we now call sex-trafficking, was enabled, 49. Aradau , ‘The Perverse Politics’, supra note 47, at 272. 50. Ibid., at 274. 51. Ann Laura Stoler, Race and the Education of Desire: Foucault’s History of Sexuality and the Colonial Order of Things (Duke University Press: Durham and London, 1995) at 85. 52. See Judith R Walkowitz., Prostitution and Victorian Society: Women, class, and the state (Cambridge Univerity Press: Cambridge, 1980); Nickie Roberts, Whores in History: Prostitution in Western Society (Harper Collins Publishers: London, 1992) at 245-254; Kathleen Barry,

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therefore, by the exclusion of a whole part of the society after they had become profiled as a risk – even if the stories spread by puritans, who used the occasion to demand stricter sexual norms and standards, often had little to do with reality. These kinds of measures were not limited to Victorian England of course. Toomas Kotkas, for example, has studied the anti-prostitution laws in Sweden-Finland expressly from the biopolitical perspective, and his description matches very well the story of England.53 It is clear, therefore, that biopower and prostitution, and consequently trafficking, have from the very beginning been tightly connected. Today, too, sex business is associated with disorder and immorality, to rogues and outlaws. Penny Crofts makes an interesting connection between prostitution and pollution. Referring to Mary Douglas,54 she notes how dirt has become our contemporary equivalent of taboo. Just like something was denounced in primitive cultures by calling it taboo, we now utilize the terms dirty and dangerous. Dirt is something out of place, like the dust at the corner of the living room that one must get rid of before one’s dinner guests arrive. Even things that are acceptable in certain contexts can become dirt in others: ‘[w]e might admire someone’s beautiful hair, but if we find it in our soup it is disgusting.’55 Dirt and taboo offend because they ‘challenge our systems and categories’, they are ambiguous, abnormal, because out of place.56 As such, persons that cross boundaries and lines also start to seem like pollution. This, of course, applies to prostitutes and brothels that are seen to threaten the norms according to which sexual relationships are arranged in our societies. The polluting effect is often highlighted by associating sex trade with corruption. And when corrupted authorities are willing to turn a blind eye on prostitution, they are willing to ignore other things as well, it is believed. Indeed, prostitution is connected to other, more illegal elements: brothels attract drug sale, illegal immigrants, criminals and other dangerous ‘dirt’. The polluting effect of prostitution is extended also to the clients of sex trade and even to the premises, the brothel building.57 As Crofts explains, referring to several Australian cases, the activities conducted inside the brothel is seen to infect ‘the bricks, mortar

53. 54. 55. 56. 57.

Female Sexual Slavery (Prentice-Hall: New Jersey, 1979) at 12-32. See also Jo Doezema, ‘Loose Women or Lost Women? The Re-emergence of the Myth of White Slavery in Contemporary Discourses of Trafficking in Women’, 18 Gender Issues (2000) 23-50; Petra de Vries, ‘White Slaves’ in a Colonial Nation: the Dutch Campign Against the Traffic in Women in the Early Twentieth Century’, 14 Social & Legal Studies (2005) 39-60. Toomas Kotkas, ’Ohjesääntöinen prostituutio – Foucault’laista biovaltaa?’, 27 Oikeus 1998, 82-92. Mary Douglas, Purity and Danger: An Analysis of the Concepts of Pollution and Taboo (First Published in 1966) (Routledge and Kegan Paul: London, 2002). Penny Crofts, ‘Borthels: Outlaws or Citizens?’, 6 International Journal of Law in Context (2010) 151-166 at 158. Ibid., at 158. Ibid., at 158-160.

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and roof of the entire building. It is almost as though the building is magically irradiated from within, polluting all who see it.’58 It is not difficult to extend this polluting effect of prostitution also to sextrafficking. If dirt is taken to mean something out of place, the polluting effect of prostitution is emphasized regarding sex-trafficking. Not only is sex-trafficking an inherently criminal activity, unlike prostitution in some countries, but the victims of trafficking are also ‘illegal’ immigrants, foreigners who invade our society. They cross not only the virtual lines of social norms, but also the concrete boundaries of the nation state. Even though the victims of trafficking are not criminals, but victims, they are still disorderly and anomalous and must as such be eliminated, punished and expunged. Women trafficked into prostitution challenge the cohesiveness and moral order of the community. As Jacqueline Berman writes: ‘[d]espite being “victims” of kidnapping, trafficked women as well as women who migrate for sex work are ambivalently positioned as committing a crime of “moral degeneracy”.’59 Control, normalization and the regularization of sexuality are some of the most important biopolitical mechanisms in managing the population. As Foucault explains, sex is ‘a means of access both to the life of the body and the life of the species.’60 It is this access to life and bodies that the ‘unconventional’ sexuality of trafficked prostitutes threatens by challenging the established norms of the community.61 These women must be, therefore, either ‘massified’ – normalized into functional, controlled, parts of the population – or excluded from the society. Not only are threats to the population eliminated as a consequence of this process, but the society also reinforces and reproduces its norms, those relating to reproduction and sexual relations in this case, and produces certain kinds of subjects and social rules. We can, therefore, now see how victims of trafficking constitute a threat to the population from a biopolitical perspective. Having studied how biopower operates non-subjectively through different kinds of norms and practices, and how victims of trafficking are profiled as threats to the population, we can finally start comprehending the difficult situation of the victims. Although authorities operating with trafficking victims on different levels of society surely aim to help the victims, this is often impossible in practice, since power is fundamentally independent from those exercising it. An individual or even a group does not really have much power, but power is actualized through different practices aiming for governance. This governmentality executes biopolitical aims, and since the victims of trafficking constitute a risk to the society from the biopolitical 58. Ibid., at 160-161. 59. Jacqueline Berman, ‘(Un)Popular Strangers and Crises (Un)Bounded: Discourses of SexTrafficking, the European Political Community and the Panicked State of the Modern State’, 9 European Journal of International Relations (2003) 37-86 at 61. 60. Foucault, quoted in Stoler Race, supra note 51, at 34. 61. Berman, ‘(Un)Popular’, supra note 59, at 62.

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perspective, different control mechanisms try to normalize them or to exclude them from the society. How these biopolitical aims are accomplished in practice, is the topic of the next Chapter of the article.

3. The Discourses and Practices of (Finnish) Antitrafficking, and the Myth of Trafficking Since power operates silently in different relationships through countless cogs and gears that no one is in charge of, its operation is very difficult to observe. Biopower, especially, is mostly undetectable through traditional politico-judicial tools of analysis and research questions. The remaining part of this article, therefore, aims to track down the operation of biopower in the practice of anti-trafficking measures, in the hope that this alternative view on the trafficking quagmire might provide support and stimulus for more traditional and practical legal studies. It is my argument that the biopolitical result of normalization or exclusion of the victims of trafficking is dependent on two very Foucauldian elements, clearly visible in the anti-trafficking campaign too. The first one of these is the creation of certain knowledge or beliefs through different discourses, and the second a wide margin of discretion of authorities and experts: the latter allows the discourses, internalized by different actors, more room to operate. When authorities are forced to make open-ended decisions, it is natural that certain norms arising from below, from inside the community or institutions, start to affect their decision-making. It is at these moments, in these spaces of discretion, that biopower penetrates the defensive mechanism of law.

3.1. Security and humanitarian discourses and the myth of trafficking Discourses, according to Foucault, are not only an effect, but also an instrument of power – they function as a way of exercising it. Discourses construct subjects and structure relations between them. They constitute knowledge and articulate and distribute all of the norms and practices that we follow in our day-to-day actions.62 Through discourses, therefore, power silently penetrates new areas by constituting ‘the unconscious and conscious mind and emotional life of the subjects which they seek to govern.’63 Some ‘knowledge’ and certain beliefs become facts, something that is so internalized by us that we take it for granted. The discourses, at their surface, may not seem to have anything to do

62. See Lynch, ‘Foucault’s Theory’, supra note 19, at 18; Chris Weedon , Feminist Practice and Poststructuralist Theory (Blackwell Press: Cambridge, 1997) at 105; Berman, ‘(Un)Popular’, supra note 59, at 47. 63. Weedon, Feminist Practice, supra note 62, at 110.

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with biopower, but since the power they distribute is in contemporary societies primarily biopolitical, the discourses often have biopolitical outcomes. In the case of trafficking, we have two large discourses that could be seen to present two opposing poles in the anti-trafficking campaign. On the one hand we have the security discourse. In this paradigm, sex-trafficking becomes pictured as a security threat to the state and the individuals inhabiting it: the population. The organized, large-scale nature of trafficking is emphasized and the alleged security problems – the expansion of transnational and international criminal organizations, terrorism, illegal immigration, and spread of diseases –64 caused by THB are put in the center of the discourse, even if it is difficult to tell whether all of these heterogeneous elements are truly consequences of trafficking, or the other way around. The language invoked is that of panic. The security and health problems related to trafficking are emphasized and exaggerated and shocking expressions and phrases are utilized. I’m not suggesting any kind of conspiracy theory, however, for the utilization of exaggerated expressions is often a result of very mundane reactions and interests. A journalist may use more dramatic expressions than need be to sell the newspaper; ministries and other governmental units may exaggerate a little bit to gain more funds, and to be sure not to fail fulfilling their obligations; a politician may fish for votes, perhaps; and there is certainly nothing surprising in people worrying for their jobs or the safety of their children. However, once these small elements start to combine and link up, the result can be quite immense. The effects of this discourse is reflected especially in the criminal law, or law-enforcement, approach to trafficking that has so far been the prevalent approach in the anti-trafficking campaign. As Elizabeth Bruch writes, ‘[a]ll of the international documents addressing human trafficking in detail have essentially embodied a law enforcement perspective’, and the Trafficking Protocol (TP) – the most relevant international document concerning trafficking –65 too, is ‘simply one more component of the fight against organized crime.’66 This approach perceives trafficking first and foremost as a crime against the destination state, and emphasizes, therefore, public interests over individual ones. It has, consequently, recently become a target of severe criticism. Countless commentators have pointed 64. See Dina Fransesca Haynes, ‘(Not) Found Chained to a Bed in a Brothel: Conceptual, Legal and Procedural Failures to Fulfill the Promise of the Trafficking Victims Protection Act’, 21 Georgetown Immigration Law Journal (2006-2007) 337-381at 361-365. 65. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, in force 25 December 2003, 2237 UNTS 319, Finnish Treaty Series 70/2006. The Trafficking Protocol was signed in Palermo, Italy, in 2000, and forms a part of the larger UN Convention against organized crime. 66. Elizabeth, M. Bruch, ‘Models Wanted: The Search for an Effective Response to Human Trafficking’, 40 Stanford Journal of International Law (2004) 1-45 at 16.

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out that the measures for punishing traffickers and tightening border controls have happened at the expense of the interests of victims. As Hannah Simon puts it: While the criminalization approach to trafficking is essential, it is not without limitations. By focusing on the criminal offence, anti-trafficking law becomes not only associated with, but sometimes also limited to, deterrence and punishment strategies. In fact, by nature, the criminal justice system focuses on the prosecution of a perpetrator rather than on the needs of the victim.67

It is now increasingly believed that human rights are needed to protect the victims and their human dignity from discrimination and inhuman treatment. On the other hand, therefore, we have a more humanitarian discourse. In this discourse, attention is directed away from the security questions surrounding THB, and the true victims of trafficking – the persons actually trafficked – are put into the highlight: ‘a human rights approach’, proclaims Federico Lenzerini for example, ‘is endorsed by those who see the need of restoring the human dignity of victims as the main goal to be pursed [sic] in the context of the fight against trafficking in human beings.’68 Instead of a language of risk and panic, a language of pity is invoked in this paradigm. To protect the rights of the victims against the effects of the security approach, the horrific experiences of the trafficked persons are emphasized. Every shocking detail of their suffering is carefully described and the story re-told and re-told again. But even with horrendous stories, those invoking the language of pity may meet obstacles. It is a well known fact, after all, that ‘[p]ity cannot work for those who are deemed responsible for the ills that have befallen them or those who are considered dangerous to the community.’69 Since many of the victims of THB have actually been willing to act as prostitutes, and are therefore often deemed ‘responsible’, or even considered ‘dangerous’, this may become problematic. Suffering may suffice to be redeeming or purifying, if it can be described intensively enough,70 but if this does not work, the humanitarians have two possibilities. Either they can further emphasize the innocence of the victims, in which case the most important task becomes ‘identifying trafficked women through disidentifying them from [the dangers of THB]’,71 and a victim discourse starts to develop under the humanitarian discourse; or they can ask for tolerance (falling 67. Hannah Simon, ‘Human Trafficking from an International Protection Perspective: Probing the Meaning of Anti-Trafficking Measures for the Protection of Trafficking Victims, with Special Regard to the United Kingdom’, 28 Penn State International Law Review (2009-2010) 634-673 at 643. 68. Federico Lenzerini, ‘International Legal Instruments on Human Trafficking and a VictimOriented Approach: Which Gaps Are to Be Filled?’, 4 Intercultural Human Rights Law Review (2009) 205-238 at 237. 69. Aradau, ‘The Perverse Politics’, supra note 47, at 258. 70. Ibid., at 262-263. 71. Ibid., at 259.

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back on pity), in which case the discourse starts to bear resemblance to the toleration discourse studied by Wendy Brown.72 In any case, we can see that new discourses emerge between the two poles. There is, therefore, no great gap between the security and humanitarian discourses, but the seemingly opposite discourses are, in fact, firmly connected through smaller discourses. The victims discourse, for example, is not utilized only by the humanitarians, but the image of innocent victims also serves to legitimate stricter security measures. And conversely: the repetition of the most extreme cases of sex-trafficking serves to arouse fear, and therefore justify stricter border controls, but also raises pity towards the victims of THB and provides, therefore, more fuel for the humanitarian arguments as well. Tolerance discourse, too, can be used to justify interventionist policies and security/control mechanisms, on the one hand, while demanding a more humanitarian approach towards the victims, on the other. Asking for tolerance, the discourse ‘establishes a hierarchy in which some people are marked out as different from the norm, and therefore as potential objects of tolerance, whereas others, through their (self-) ascribed ability to tolerate that difference, constitute the norm.’73The state is, then, presented as a neutral arbiter between different groups, governing and controlling difference through the very same techniques that are used in the security paradigm. A particularly interesting bridge between the security and humanitarian discourses is what could perhaps be called a discourse of war. Once we start looking at the terminology used in the trafficking discourse, we can notice that it is permeated with the rhetoric of war, with such terms as ‘fight against trafficking’ and ‘war on trafficking’. This is, perhaps, not that surprising from a Foucauldian perspective, however. Power relations in our contemporary societies are, according to Foucault, ‘anchored in a certain relationship of force’,74 meaning that political power is forced to perpetually use ‘a sort of silent war’ to maintain its power.75 It is no wonder, therefore, that, as Hardt and Negri point out, ‘[w]ar is becoming a general phenomenon, global, and interminable.’76 Through war, relations of power and techniques of domination are revised and all aspects of social life produced and reproduced.77 Only seldom does war today take the traditional form of an armed conflict between two sovereigns, however. Instead, it has transformed into 72. Wendy Brown, Regulating Aversion: Tolerance in the age of identity and empire (Princeton University Press: Princeton, 2006). 73. Christine M. Jacobsen and Dag Stenvoll, Muslim Women and Foreign Prostitutes: Victim Discourse, Subjectivity, and Governance, 17 Social Politics: International Studies in Gender, State and Society 2010, 270-294 at 273. 74. Foucault Society Must Be Defended, supra note 30, at 15. 75. Ibid., at 15-16. 76. Michael Hardt and Antonio Negri, Multitude: War and Democracy in the Age of Empire (Penguin Books: London, 2006) at 3. 77. Ibid., at 13, 21.

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a civil war on a global terrain,78 with abstract, rather than concrete enemies. War is now waged against poverty, or more concretely on drugs, crime and terrorism:79 it has, in other words, been reduced to police action. War on THB is, therefore, a natural addition to this continuum, one that transcends social and political boundaries, and is, as Michael Grewcock has noted, used to legitimize and extend ‘Western exclusion zones’– areas of externalized border control.80 The rhetoric of war, permeating the whole trafficking discussion, blurs, therefore, the distinction between governmental forces and humanitarians and allows the manipulation of the human rights rhetoric that, 81 because of its notorious indeterminacy, is always adjustable to support myriad different aims and views.82 As Hardt and Negri explain, the new kinds of wars against ‘indefinite, immaterial enemies’, allow, ‘[a]ll of humanity’ to unite ‘against an abstract concept or practice.’83 As a consequence of the victim, tolerance and war discourses, the humanitarian and security discourses start to merge. When the picture of suffering victims is useful for security and humanitarian actors alike and everyone can unite in the war on trafficking, differences between different actors diminish and diminish to the point that they in all practical sense disappear; with the exception that power still lies mainly in the hands of the security actors, supported by the state apparatus. A concrete example of the merging of security and humanitarian approaches, provided by Claudia Aradau, is that the profiles of victims, collected by different NGOs in order disentangle background reasons that lead to trafficking and ‘to consider the predispositions that exist in the personal history of women and girls’84 become hijacked by security experts who use it as material for biopolitical risk-calculations. The emotional promise of politics of pity is turned into a suspicion of risk.85 In repeating the stories of the suffering body of the victims of trafficking, the security and humanitarian discourses, and the other discourses operating between these two poles, generate what Jo Doezema calls the myth of trafficking, which again reinforces the discourses that created it, and is distributed around especially 78. Ibid., at 3-5. 79. Ibid., at 13-14. 80. Michael Grewcock, ‘Shooting the passenger: Australia’s war on illicit migrants’, in Maggy Lee (ed.), Human Trafficking (Willan Publishing: Cullompton, Devon, 2007) 178-209 at 180. 81. Ibid., at 184. 82. See Martti Koskenniemi, ‘Human rights, politics, and love’, Mennesker & Rettigheter 4/2001, 33-45; Martti Koskenniemi, The Effect of Rights on Political Culture, in Philip Alston (ed.), The EU and Human Rights (Oxford University Press: Oxford, 1999); Jarna Petman, Human Rights and Violence: the Hope and the Fear of the Liberal World, forthcoming; Costas Douzinas, The End of Human Rights: Critical Legal Thought at the Turn of the Century (Hart Publishing: Oxford and Portland Oregon, 2000). 83. Hardt & Negri, Multitude, supra note 76, at 15. 84. Aradau, ‘The Perverse Politics’, supra note 47, at 271. 85. Ibid., at 275.

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with the discourse of war (on THB). As Doezema explains, the mythical victim of THB is a white, innocent woman, abused in prostitution in the hands of brutes.86 This picture consists of several parts. First, the victim is abducted or severely lured or deceived. By no means can the mythical victim of trafficking have been aware of ending up working in prostitution, even if she would have been unaware of the actual conditions of her work. As Sally Engle Merry explains: ‘Those who are selected [as victims] are typically those who are in some way helpless, powerless, unable to make choices for themselves’, whereas ‘[t]hose who choose to put themselves in a dangerous situation are less deserving of the status of victim […]’87 Secondly, to establish the innocence of the victim, her youth and virginity, or alternatively her beauty, are emphasized. Thirdly, repetition of horror stories of violence and abuse serve to reinforce the victimization of the trafficked women. The whiteness of the victims is also emphasized, in stark contrast to the dark, terrifying ‘otherness’ of the mythical trafficker, who is usually pictured as a dark, eastern brute.88 One commentator even compares traffickers to the ‘Dementors’ from the Harry Potter saga: horror creatures that ‘glory in decay and despair [and] drain peace, hope, and happiness out of the air.., long enough to reduce you to something like itself... soulless and evil.’89 The myth of trafficking contains, therefore, all of the elements – the beastly perpetrators, the innocent victims and the virtuous saviors – criticized regarding the more general paternalistic symbolism detectable in international law, including human rights.90 As will be explained in the following section, together these factors serve to raise attention to the anti-trafficking cause, but also to distinguish the ’true victims’ from ‘guilty’ prostitutes.91 Indeed, there seems to be a common belief among authorities worldwide that ‘”real” victims of human trafficking’, as Dina Francesca Haynes notes, ‘will be found when they are liberated from their exploitation by law enforcement officials’,92 whereas ‘victims not rescued by officials are even susceptible to being viewed as criminals […] wor86. Doezema ‘Loose Women’ supra note 62. See also Berman ‘(Un)Popular, supra note 59. 87. Sally Engle Merry, ‘Introduction: Conditions of Vulnerability’, in Mark Goodale and Sally Engle Merry (eds), The Practice of Human Rights: Tracking Law Between the Global and the Local (Cambridge University Press: Cambridge, 2007) 195-203 at 195. 88. Berman ‘(Un)Popular, supra note 59, at 54. 89. Angela A. Jones, ‘Post-traumatic Stress Disorder and Victims of Human Sex Trafficking: A Perpetuation of Chronic Indignity’, 4 Intercultural Human Rights Law Review (2009) 317354 at 323-327 at 334-335. The extract is from J.K. Rowling, Harry Potter and the Prisoner of Azkaban (Scholastic Inc, 1999) at 187. 90. See for example Makau Mutua, ‘Savages, Victims and Saviors: The Metaphor of Human Rights’, 42 Harvard International Law Journal (2001) 201-245. In the specific context of THB and feminist NGOs, see Elina Penttinen, Globalization, Prostitution and Sex Trafficking – Corporeal Politics (Routledge: Abingdon, Oxon, 2007) at 18. 91. Doezema ‘Loose Women’, supra note 62, at 34-37. 92. Haynes, ‘(Not) Found Chained’, supra note 64, at 349-350.

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thy of deportation.’93 What ought to be concluded from the present section is, therefore, that the myth of trafficking, generated by the discourses in operation in the anti-trafficking campaign, seems to permeate the whole anti-trafficking campaign and become internalized by different actors. To take an example, the myth of trafficking is used by both of the competing camps of radical, or structural, feminists and liberal feminists. For the radical feminists, – for whom it is impossible to voluntarily consent to prostitution, with the consequence that all forms of prostitution must be criminalized – ‘the “suffering body” of the sex worker becomes a mythical metaphor for the condition of the imagined “ideal society”. Her function as a symbol condemns her to suffer; because she must suffer, she cannot consent.’94 The approach of the individualist or liberal feminists is very different. They emphasize the importance of free consent. Even with the danger of oversimplification: one cannot be trafficked if one is not transported without one’s will. The same goes for prostitution: as long as prostitution does not occur in a coercive environment, it must be allowed. But this approach cannot escape the myth either. As Doezema explains, the liberal approach too, entails an investment in the continued importance of sexuality as a “site of violence”. Thus, the continued importance of the suffering, violated body of the sex worker remains even for “consensual prostitution” supporting feminists. Without this body, the subject of liberal feminist concern “disappears”.95

The discourses generating the myth of trafficking seem therefore to silently operate in all parts of the anti-trafficking campaign, finding links even between seemingly opposite paradigms, and therefore distributing certain knowledge of trafficking and its victims to new areas and to new actors. As a consequence of these discourses, the knowledge becomes so internalized by different actors that it starts to affect their decision-making subconsciously, and consequently penetrates the defensive mechanisms of law. In the case of the Trafficking Protocol, the myth was incorporated into the Trafficking Protocol, which now links prostitution and trafficking in a very ambiguous and confusing manner.96 But the power of discourses is perhaps even stronger when they are internalized by decision-makers making practical decisions, concerning the identification of victims of trafficking, for example. This is true especially where the margin of discretion of the authorities is wide, for the absence of clear rules gives different norms, beliefs and discourses, rising from the community or institutional practices, more room to operate. The fact that certain outcomes seem to repeat themselves despite the wide margin of discretion of decision makers has in more general critical literature been studied 93. Ibid., at 350. 94. Jo Doezema, ‘Now You See Her, Now You Don’t: Sex Workers at the UN Trafficking Protocol Negotiation’, 14 Social & Legal Studies (2005) 61-89 at 74. 95. Doezema, ‘Now You See Her’, supra note 94, at 81. 96. Ibid., at 79-80.

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as a ‘structural bias’, grounded in the existence of ‘a professional consensus or a mainstream answer to any particular problem.’97 In this, article, however, I would like to give the structural bias a biopolitical twist. In the next two sections of this article, therefore, I shall study, first, the sources of indeterminacy of the anti-trafficking practice and legislation, and, secondly, the biopolitical outcome of this indeterminacy and the myth of trafficking.

3.2. Indeterminacy and margins of discretion: the (Finnish) practices of anti-trafficking The indeterminacy thesis, associated especially with CLS, is not reduced to a claim of the semantic ambiguity of words and legal terms. As Martti Koskenniemi explains with regard to international legal norms, ‘even where there is no semantic ambivalence whatsoever, international law remains indeterminate because it is based on contradictory premises and seeks to regulate future in regard to which even single actors’ preferences remain unsettled.’98 In the conditions of uncertain future, broadly defined standards are preferable and rules must be supplemented with exceptions. And because different actors have different purposes, rules will always turn out to be over-inclusive or under-inclusive.99 There is always need for discretion and hence ‘[t]here is no space […] that would be free from decisionism, no aspect of the legal craft that would not involve a choice […].’100 In the anti-trafficking measures the necessary indeterminacy of law – especially international law – is perhaps the easiest to observe in the trafficking protocol and in the wide margin of discretion of the national authorities dealing with trafficking. These are by no means the only sources of indeterminacy in the antitrafficking campaign, but they serve as good examples for studying the operation of biopower in the field. This is not least because the indeterminacy of treaties and the discretion of executive authorities are interlinked, therefore providing an illustrative narrative. Treaties, including the Trafficking protocol, are usually a result of careful balancing and compromises between differing interests and views are, as such, necessarily left indeterminate, in order to be able to adapt to the changing circumstances of real life. The interpretation of treaties is, therefore, often left experts who can guarantee their efficiency. This deformalization, however, inevitably leads to further deformalization, for now the question of legitimacy appears. How do we know that the experts are making the rights decisions? Rules 97. Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument: Reissue with New Epilogue (Cambridge University Press: Cambridge and New York, 2005) at 607. For another view, see Susan Marks, ‘False Contingency’ , 62 Current Legal Problems (2009) 1-21. 98. Koskenniemi, From Apology to Utopia, supra note 97, at 590. 99. Ibid., at 590-592. 100. Ibid., at 596.

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are needed to regulate the work of experts and limit their power. But these rules will also end up being indeterminate, meaning that more experts are needed to apply them. The legitimacy problem reappears, of course, and more experts are again needed. As Jarna Petman explains, ‘[t]he move from function to rules to indeterminacy to contextualized expert decisions will start again – only to start again. There will be no place to stop.’101 This constant process of deformlization requires areas of indistinction where experts on the field enjoy almost unlimited margin of discretion. There is nothing scandalous about the indeterminacy of the Trafficking Protocol or the wide margin of discretion of the national authorities. As Koskenniemi explains, both the indeterminacy of rules and the wide margin of discretion is absolutely crucial for international law – or law in general, for that matter. Both emerge from the wish to ensure that rules ‘fulfill the purpose for which they were adopted.’102 Yet this indeterminacy is also necessary for biopower to operate, and can have detrimental consequences for the victims of trafficking. In this section I shall take a closer look at the two sources of indeterminacy, and the biopolitical outcome is studied in the next section. The whole negotiation process of the Trafficking Protocol was dominated by a fundamental disagreement about sex work between liberal and radical feminists. As was already mentioned in the previous section, for the radicals it is impossible to voluntarily consent to prostitution, just like it is impossible to voluntarily consent to slavery, for prostitution in all its forms therefore oppresses women. The radicals wanted, therefore, to criminalize all transportation of women into prostitution as trafficking, irrespective of the women’s consent.103 Emphasising the importance 101. Jarna Petman, Deformalization of international organizations law, in Jan Klabbers and Åsa Wallendahl (eds), Research Handbook on the Law of International Organizations (Edward Elgar: Cheltenham and Northampton, 2011) 398-430 at 399. See also Martti Koskenniemi, ‘Human Rights Mainstreaming as a Strategy for Institutional Power’, 1 Humanity: An International Journal of Human Rights, Humanitarianism, and Development (2010), 47-59; Koskenniemi, From Apology to Utopia, supra note 97, at 589-592. 102. Koskenniemi, From Apology to Utopia, supra note 97, at 591. 103. Melissa Ditmore, ‘Trafficking in Lives: How Ideology Shapes Policy’, in Kamala Kempadoo, Jyoti Sanghera and Bandana Pattanaik (eds), Trafficking and Prostitution Reconsidered: New Perspectives on Migration, Sex Work, and Human Rights (Paradigm Publishers: Boulder, London, 2005) 107-126 at 111-114; Jacqueline Berman, ‘The Right, the Left, and the Prostitute: The Making of U.S. Antitrafficking in Persons Policy’, 14 Tulane Journal of International and Comparative Law (2005-2006) 269-293 at 270-271; See Jo Doezema, ‘Now You See Her, Now You Don’t: Sex Workers at the UN Trafficking Protocol Negotiation’, 14 Social & Legal Studies (2005), 61-89at 67, 72-74; Janet Halley, Prabha Kotiswaran, Hila Shamir and Chantal Thomas, ‘From the International to the Local in Feminist Legal Resonses to Rape, Prostitution/Sex Work, and Sex Trafficking: Four Studies in Contemporary Governance Feminism’, 29 Harvard Journal of Law and Gender (2006) 335-423 at 349-351; Lindsey Strauss, ‘Adult Domestic Trafficking and the William Wilberforce Trafficking Victims Protection Reauthorization Act’, 10 Cornell Journal of Law and Public Policy (2009-2010), 495-536 at 512-517;

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of free will, the individualists took the opposite stance. In contrast to the radical feminists, the individualists demanded that the transportation of women into prostitution should not be criminalized, should the women be transported with their consent.104 It did not take long for the drafting process of the Trafficking Protocol turn into a battle field between these two feminist strands, certainly concerned of the faith of the victims of trafficking, but also wishing to use the attention that THB was receiving to score points in the internal feminist power struggle, centered especially on the question of sex work. The liberal feminists had had an upper hand in this struggle, as can be perceived from the U.S. Trafficking Victims Protection Act,105 having been supported by the liberal Clinton administration.106 But in the drafting process of the TP they suddenly found themselves on level terms with the radicals who received heavy support from different conservative actors, George W. Bush at the forefront, and different religious organizations.107 This battle between equally strong parties to the dispute led into an extremely indeterminate definition of THB – a definition that seems more like a result of the power struggles between the different feminist strands and between American political actors than a careful assessment of the needs of the victims of trafficking. When faced with the radical feminist notion of sex work as ‘violence’, the liberals, viewing sex work as ‘choice’ had no choice but to make all references of sex work disappear. The result was a compromise where the link between prostitution and trafficking remains undecided, and the myth of suffering victims of THB is enforced.108 According to Article 3(b) of the TP, consent of the victim is deemed irrelevant where any of the means found in the definition of

Rutvica Andrijasevic, Migration, Agency and Citizenship in Sex Trafficking, (Palgrave Macmillan: New York and Houndmills, Basingstoke, Hampshire, 2010) at 59; Shelley Cavalieri, ‘Between Victim and Agent: A Third Way Feminist Account of Trafficking,’ 86 Indiana Law Journal (2011), 1410-1458 at 1418-1426; Michelle Madden Dempsey, ‘Sex Trafficking and Prostitution: In Defense of Feminist Abolitionism’, 158 University of Pennsylvania Law Review (2009-2010), 1729-1778. 104. Ditmore, ‘Trafficking in Lives’, supra note 103, at 111-114; Doezema ‘Now You See Her’, supra note 94, at 67-68, 75-77; Andrijasevic, Migration, Agency and Citizenship, supra note 103, at 58; Halley et al. ‘From the International to the Local’, supra note 103, at 350-351. 105. Victims of Trafficking and Violence Protection Act of 2000, 18 U.S.C §§ 1589-1594, 22 U.S.C §§ 7101-7110 (2000). 106. Halley et al. ‘From the International to the Local’, supra note 103, at 356. 107. Ibid., at 357; Berman, ‘The Right, the Left, and the Prostitute’, supra note 103. The conservative and religious organizations include, for example: National Association of Evangelicals, Catholic Bishops Conference, Traditional Values Coalition, Concerned Women for America, Salvation Army, International Justice Mission, Shared Hope International, Religious Freedom Coalition and Focus on the Family. See Ronald Weitzer, ‘The Social Construction of Sex Trafficking: Ideology and Institutionalization of a Moral Crusade’, 35 Politics & Society (2007) 447-475 at 449. 108. See Doezema, ‘Now You See Her, Now You Don’t, supra note 94.

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trafficking (Article 3) have been used,109 which implies, that consent is still relevant when none of those measures is used, thus recognizing the possibility of choice in trafficking (and in prostitution).110 While the application of the rule may seem clear in the abstract, it is far from that in practice, as we will soon discover with regard to the Finnish anti-trafficking practice. Therefore the question of consent mainly remains a non-issue, leaving the status of abused sex-workers undecided. It is as if the Protocol was made only for the mythical victims of trafficking. As treaties usually, the Trafficking Protocol, too, was left indeterminate, for it was supposed to cover various mutually differing interests, with different actors trying their best to leave the rules open for their own interpretations while aiming to counter the views of their opponents. There is nothing scandalous in this, it is a necessary consequence allowing equal participation for all parties to the treaty. In many senses it is exactly the challenging of establish ways of thinking that the anti-trafficking campaign needs. The problem with the TP is, however, that the main participants to the dispute were the feminist groups, absorbed in an internal power struggles. What happened, therefore, was that those actors that were supposed to provide a counter-force to the state actors, to protect the human rights of the victims against security interests, in fact countered each other and as such all opposition to the state actors who were able to use the Protocol to tighten their borders. The aura of legitimacy created by the human rights language, capable of supporting very different views – in this case, liberal views of individual freedom, on the one hand, and the Kantian concept that man exists as an end and must never be treated as a means alone, on the other – sadly enabled and concealed measures that are completely at odds of the alleged benefiters of the Protocol.111 As such, it became perhaps another example of the way in which the expanding human rights phenomenon becomes ‘hijacked’ by state bureaucrats, as Costas Douzinas has famously proclaimed.112 The vagueness in the definition of trafficking and the myth of trafficking is necessarily reflected also on the national level. In Finland the former is detectable especially in overlapping of penal law provisions concerning THB with those of 109. Article 3(b), Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, in force 25 December 2003, 2237 UNTS 319, Finnish Treaty Series 70/2006. 110. Alice Edwards, ‘Traffic in Human Beings: At the Intersection of Criminal Justice, Human Rights, Asylum/Migration and Labor’, 36 Denver Journal of International Law and Policy (20072008) 9-53 at 14. See also Kay Warren, ‘The 2000 UN Human Trafficking Protocol: Rights, Enforcement, Vulnerabilities’, in Mark Goodale and Sally Engle Merry (eds), The Practice of Human Rights: Tracking Law Between the Global and the Local (Cambridge University Press, Cambridge, 2007, 242-269 at 246. 111. See Warren, ‘The 2000 UN Human Trafficking Protocol’, supra note 111, See Doezema, ‘Now You See Her, Now You Don’t, supra note 94; James C. Hathaway, ‘The Human Rights Qugmire of “Human Trafficking”’, 49 Virginia Journal of International Law (2008-2009), 1-59. 112. See Douzinas, The End of Human Rights, supra note 82, especially at 380.

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pandering. Both provisions become applicable if a person has been intimidated into prostitution. The preparatory works of the penal law provision on THB indicate that provisions are applicable even if no violent methods have been used, and it is indeed fundamental from the victim’s perspective that the provisions on THB are applied in this scenario, for victims of trafficking are entitled to certain special rights that procured women are not. However, such application of the rule is seriously threatened by the operation of the myth of trafficking. According to the National Rapporteur on THB, ‘the [old] understanding that trafficking does not concern Finland – at least not as a destination country – seems to be emerging again among the authorities.’113 Since authorities have a certain stereotypical notion of what victims of trafficking are like (i.e. innocent and completely dominated), they tend to ignore that even a woman that has been aware that she would end up working in prostitution upon entering Finland can become a victim of trafficking should her procurers use any methods described in the Finnish penal provisions on trafficking to coerce her to stay in prostitution or abuse her in any other way.114 It is, indeed, often emphasized by the authorities in denying the victim status from a foreign prostitute that she was aware of the nature and conditions of her work in Finland and had consented to the rules set by the procurers (traffickers).115 This problem is reinforced, according to Roth, with the notion that, in Finland, ‘women in prostitution have always been considered as threats to society.’116 It is therefore no wonder that with regard to the overlapping trafficking and pandering provisions, the Committee of Legal Affairs for the Parliament has stated that open concepts such as ‘dependent status’ or ‘insecure state’ should be interpreted narrowly and that the provisions on THB are to be applied only on the most serious offences. The Committee has, therefore, set the boundary between THB and pandering in such a way that the THB provisions are only to be applied in rare and extreme situations – in those that fit the myth that is created around trafficking.117 According to Roth, the courts ‘seem to refer to this statement whenever they seek to restrict the scope of application of the penal provisions on human trafficking.’118 Similarly, even though the preparatory works infer that in cases where serious

113. Roth, Defining HumanTrafficking, supra note 2, at 232. 114. HE 34/2004, Government proposal to Parliament for an Act amending the Penal Code and certain associated Acts at 100, See also at 102. 115. Roth, Defining Human Trafficking, supra note 2, at 246. 116. Ibid., at 233. 117. LaVM 4/2004, Report of the Legal Affairs Committee on the Government proposal to Parliament for an Act amending the Penal Code and certain associated Acts. 118. Roth, Defining Human Trafficking, supra note 2, at 199.

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harm is caused to the victim, the THB provisions should be applied,119 the courts apply the fairly similar pandering provisions.120 Indeed, only five cases have been heard in Finnish courts as trafficking. Three of these dealt with sex trafficking and two with trafficking to labor exploitation.121 I will concentrate only on the former three here, since the article is focused on sextrafficking, and since both of the labor trafficking claims withered as soon as they reached the court. Out of the three sex-trafficking cases, two dealt with foreign women and one with a Finnish woman. It is certainly not surprising from a Foucauldian perspective that the case dealing with the Finnish woman is the only one that has not been widely criticized, although it is impossible to make very far-reaching conclusions from such a small sample of cases. Regarding the two cases dealing with foreign prostitutes, it should be emphasized that the threshold of applying the trafficking provisions was very high. More specifically, it was required that the women managed to show that they were in an especially vulnerable and dependant state. In the first one122 of these cases only one of 14 procured women was trafficked, according to the Court, that noted that the woman was in a particularly vulnerable and dependant state, since she had suffered from mental health problems, and had also been threatened with violence, should she not manage to pay her debt to the defendants. The other women, however, had engaged in prostitution voluntarily, argued the court – a fact from which it drew the conclusion that they had not been trafficked, but procured, despite the very suspicious conditions under which the women has worked, including threats against the women and their families, restrictions on their movement and unreasonable debts. Referring to the aforementioned problematic opinion of the parliamentary Legal Affairs Committee in Report LaVM 4/2004, the District court stated that the requirement of dependence is higher in trafficking than in procuring. Therefore, although the procured women were acknowledged to have been in a vulnerable state, the dependent status was not met, since the women had known that they would have to offer intimate services when they entered Finland, and since they had earned money through prostitution. This has led the Finnish National Rapporteur on Trafficking in Human Beings to state that ‘the District Court did not adequately examine the conditions in which the women were selling sexual services.’123 The outcome was that ‘attention was only paid to violations of the rights of the disabled woman, who was an injured party.’124 119. HE 34/2004, Government proposal to Parliament for an Act amending the Penal Code and certain associated Acts at 102. 120. Roth, Defining Human Trafficking, supra note 2, at 200-201. 121. The labor exploitation cases are Vantaa District Court 13.7.2007, R 07/1363, 07/1991 and Österbotten District Court 30.4.2010, R 09/528/737, 10/74. 122. Helsinki District Court, 20.7.2006, R 06/5204, 06/6857. 123. The Finnish National Rapporteur on Trafficking in Human Beings. Report 2010, supra note 3, at 115. 124. Ibid.

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The other women were treated only as witnesses to the case and the violations of their rights as evidence of procuring (not as true violations). Nothing changed in this respect in the Court of Appeal.125 In the other case subject to criticism, the topic of discussion has been the Court’s inadequate interpretation of the means and the manner of trafficking. In this case,126 the District Court considered that the defendants were guilty of procuring, but not of trafficking of an Estonian woman whom they had deceived to stay in prostitution, against her decision to quit the profession, by falsely promising her a different job in Sweden (once she had made them enough money in prostitution). Admittedly, the evidence of trafficking in this case was debatable. The National Rapporteur on Trafficking in Human Beings, however, considers that the court’s decision was faulty, stating that: When assessing the case […] the District Court confused the means and the manner of committing a human trafficking office. Consequently, it required in its decision the fulfillment of two different means, or exploitation of a dependent status and vulnerable state as well as deception, and failed to look at the manner of committing the offence defined in the Criminal Code, or taking control of another person, recruiting, transferring, transporting, receiving, and harboring.127

She points out that the court had considered that the defendants had managed to deceive the woman into continuing in prostitution by the promises of a job in Sweden, and continues that abusing a mistake made by another person also meets the criteria for the means required for trafficking.128 She also adds that ‘[a]ccording to Government proposal 34/2004, the dependent status may be caused by family relationships.’129 Since the injured party had previously had a relationship with one of the defendants and since the so-called ‘lover boy’ recruitment technique130 is widely used in trafficking business, the court should have reconsidered its decision. The vulnerable state of the injured party was further emphasized by the facts that psychiatrists had confirmed in the court that the injured party was exposed to exploitation because of her development and previous experiences and that the defendants had rendered the injured part into a poor financial situation by asking her to take fast loans that were never paid back. These facts were, indeed, taken into consideration by the Court of Appeal that altered the District Courts decision and sentenced the defendants for traf125. Helsinki Court of Appeal 1.3.2007, R 06/2317, decision no. 722. 126. Helsinki District Court 28.11.2008, R 08/10613, 08/11690. 127. The Finnish National Rapporteur on Trafficking in Human Beings. Report 2010, supra note 3, at 118. 128. Ibid. 129. Ibid. 130. The ‘lover boy’ technique refers to a method where the victim is lured to trust the traffickers and accompany them by seducing her to fall in love with one of the traffickers.

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ficking.131 The Court of Appeal’s decision, although a significant improvement, raises some questions, too, however. The biggest difference to the District Court decision was that the Court of Appeal found that the defendants had subjected the victim to sexual abuse by abusing her vulnerable state and dependent status. In coming to this conclusion, the court pointed out the lack of language skills of the injured party, her indebtedness and her psychological properties. The decision is, therefore, comparable to the first case dealing with Estonian prostitutes. The confusions of the District Court decision are solved, but the decision still seems to be based on the disabled state of the victim. In light of the court’s arguments, it seems likely that had the victim not been disabled, her initial consent to work in prostitution would have trumped the false promises of the traffickers and rendered the offence that of procuring. The results and the problematic details in the court decisions, analyzed above, are extremely interesting from a biopolitical perspective. Foucault certainly would not have been surprised to notice that the most criticized decisions are those dealing with foreign prostitutes. Especially the first one of these is telling. Although I do not doubt the sincerity of the judges, the outcome was that only the girl that could be deemed completely innocent (and therefore fitting the myth of trafficking) was recognized as a true victim of trafficking. The other women, on the other hand, were cast out of governmental protection – as criminals or dangerous risks worthy of exclusion, it is implied by the Foucauldian interpretation. In the second case, too, the pandered girl became a true victim of trafficking only after the Court of Appeal decided that she was psychologically disabled, and therefore innocent in the sense of being incapable of consenting to prostitution. Interestingly, in the final sex trafficking case,132 dealing with a Finnish girl – easily believed to be someone not engaging willingly in prostitution, and already a part of the Finnish national body – no major problems appeared. To return to the indeterminate rules concerning trafficking, the second case were indeterminacy is easy to detect is the margin of discretion of national authorities, granted in order to allow them to make efficient, reasonable decisions in difficult situations. Indeed, the Finnish border control and police authorities are provided a very wide margin of discretion with regard to making decisions on the rights of the victims of trafficking to remain in Finland temporarily or permanently – i.e. the so-called residence permit and the reflection period respectively – which again gives room for different discourses, norms and rituals to enter legal decision-making. It was discussed during the drafting process of the Act, whether the reflection period should also cover illegal immigration, but in fear of potential misuse the application was limited to THB. As Roth notes, because of this narrow scope of application, the implementation of the residence 131. Helsinki Court of Appeal 29.12.2009, R 09/385, decision no. 3420. 132. Kotka District Court 9.12.2008 R 08/1069, 08/1655.

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permit and the reflection period depend on whether authorities are able to identify victims of THB.133 The reflection period is granted by the District police or the border control authorities. It may be suspended – quite suspiciously – by the same authorities if the victim has voluntarily and on his/her own initiative re-established relations with the traffickers, or if they are considered a danger to public order, security, health or international relations –134 a familiar clause of exception for any jurist from countless laws and treaties, but one that cannot be left without a mention form a Foucauldian perspective, not least if we combine it with a section of the Aliens Act under which an alien may be refused to enter the country if there are reasonable grounds to suspect that he or she may sell sexual services.135 To make things worse, the period and its suspension are not subject to appeal.136 All this seems to leave quite a wide margin of reflection to the authorities, especially since there is insufficient information available on what kind of persons the reflection period is grantable to, or how the duration of the period should be determined.137 According to Roth, ‘there are […] reasons to believe that reflection periods are not issued even if the issuing of such a period would be possible.’138 She continues that ‘a large number of potential victims arguably remain in the “gray zone” without being identified and referred to the system of victim assistance.’139 The residence permit also depends on the victim’s willingness to co-operate with the authorities in the investigation of the crime (unless the victim is in a particularly vulnerable position),140 not only raising more questions of the margin of discretion of the authorities and their impartiality, but also providing another example of the disciplinary, biopolitical control techniques operating in the frames of THB. The willingness to cooperate with authorities distinguishes ‘good’ victims from the ‘bad’ ones and shapes their subjectivity so that they better fit the mainstream society. The victim assistance – constituting in large part from psychological treatment, a biopolitical control technique par excellence, although certainly very important, and thus desirable, for rehabilitation in many cases – is another area where power is transformed from legislators and courts to authorities with wider mandate. The decision to apply the provisions on assistance, and to stop applying them, is made by the director of the specific reception center,141 assisted by 133. Roth, Defining Human Trafficking, supra note 2, at 208-209. 134. Section 52b, Aliens Act 301/2004, adopted 30.4.2004. 135. Section 148, ibid. 136. Section 191, ibid. 137. Roth, Defining Human Trafficking, supra note 2, at 210. 138. Ibid., at 211. 139. Ibid., at 211. 140. Section 52a, Aliens Act 301/2004, adopted 30.4.2004. 141. Section 25d, Act on the Integration of Immigrants and Reception of Asylum seekers 493/1999, adopted 9.4. 1999.

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a multi-professional expert group.142 Without any clear standards, the decision seems to be wholly in the discretion of these experts. The locations of the victim assistance centers, at the outskirts of Joutseno and Oulu (far from the densely populated Helsinki metropolitan area, where the main anti-trafficking have their headquarters), also raises some questions. Not only are the centers far from the watchful eyes of other authorities and NGOs, but the victims – the potentially ‘dangerous’ subjects – are also excluded from the rest of the society. As noted above, this wide margin of discretion and expert power is absolutely necessary for biopower, operating through norms and rituals, rather than laws, to function, and the most fundamental element of governmentality. It is, therefore, no wonder that this kind of margin is typical in the anti-trafficking campaign outside of Finland, too – everywhere in the global North, in fact. In Italy, for example, ‘irregular migrants, in respect of whom an expulsion order has been issued, are kept in centres of assistance and their personal freedom is limited, although they have not committed a crime’143, reports Matilde Ventrella McCreight. In Canada, again, the practice of offering residency on humanitarian grounds is, according to Constance McIntosh, ‘highly discretionary’ and is ‘only granted if the Minister of Immigration “is of the opinion that it is justified by humanitarian and compassionate considerations […]”’144 To take only one more example, Mary Bosworth notes that private companies run more than one half of the removal/detention centers in UK. These companies are also often used to move individuals to the centers and to the border.145 As Bosworth explains, privatization is extremely useful in the case immigration, since ‘in this corporate take-over […] certain elements of state responsibility and more complex questions of justice and morality are erased’ , providing ‘both a symbolic and a physical exclusion zone [:] Detention excludes non-citizens from the society while their appeals are processed or they await removal or deportation.’146

142. Section 25e, ibid. 143. Matilde Ventrella McCreight, ‘Crimes of Assisting Illegal Immigration and Trafficking in Human Beings in Italian Law: Illegal Immigration between Administrative Infringement and Criminal offence’, in Eslpeth Guild (ed.), Immigration and Criminal Law in the European Union: Legal Measures and Social Consequences of Criminal Law in Member States on Trafficking and Smuggling in Human Beings (Martinus Nijhoff Publishers: Leiden and Boston, 2007) 141-168 at 168. 144. Constance McIntosh, ‘Assessing Human Trafficking in Canada: Flawed Strategies and the Rhetoric of Human Rights’, 1 Intercultural Human Rights Law Review (2006) 407-435 at 420. 145. Mary Bosworth, ‘Immigration detention in Britain, in Maggy Lee (ed.), Human Trafficking (Willan Publishing: Cullompton, Devon, 2007) 159-177 at 165. 146. Ibid., at 174.

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4. The biopolitical outcome: victims of trafficking as homines sacri What the analysis provided in this article suggests is that the conventional picture where the victims, protected by different humanitarian actors, are discriminated against and mistreated by state actors, although true in many parts, is too simplistic to be able to adequately illustrate the whole situation. Despite the opposition between the two blocks, it seems that both the state authorities and the humanitarians are sincerely willing to help the victims, yet they both also unintentionally contribute to their hardship. The problem of the victims is not, then, a specific actor or a group of actors, nor is it simply a troublesome law or treaty or the misapplication of such – although both factors play an important part in the conundrum – but rather a complicated web of seemingly harmless or insignificant discourses, practices, beliefs, knowledges and mistakes. The outcome of all the discourses, practices and norms is that the myth of trafficking – the image of victims of trafficking as innocent, miserable, suffering bodies – internalized by authorities, starts to guide their decision-making. This outcome has two intertwined and unmistakably biopolitical results. Firstly, and most importantly for this article, most trafficked persons are not identified as victims of trafficking, for cases where a girl is abducted completely without her will and locked into a brothel to be sexually exploited there are, in reality, in a clear minority compared to cases that represent the gray area between trafficking and smuggling – cases where the victims have pursued better life abroad, often with full knowledge that they would support themselves with prostitution, but have fallen prey to traffickers and are therefore abused in working conditions that they had never consented to. These persons are therefore perceived as illegal immigrants and foreign prostitutes, dangerous subjects who are responsible for their own misery and are to be deported. Secondly, those persons that are indeed identified as victims are perceived as doubly traumatized, abused and suffering bodies. They are, consequently, profiled by psychological expert knowledge as probable suspects of future risky behavior. As such they are just as dangerous as foreign prostitutes. The difference is, however, that these persons are much more suitable subjects to psychological treatment, different disciplinary techniques and other normalizing practices. They are not, thus, as explicitly excluded from the society as the foreign prostitutes are – even though victims assistance often ends in ‘voluntary’ return to home – but put under strict surveillance in victim assistance centers and subjected to different disciplinary techniques. Through their normalization the society can maintain and renew its norms and control over bodies. What connects all of the victims, despite their different situations, is therefore, that they all start to resemble what Giorgio Agamben calls homo sacer, a term

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borrowed from archaic Roman law where it described someone who could not be sacrificed, yet she who killed this person was not condemned for homicide147 – meaning a human being reduced to bare life.148 Bare life is another Agambenian key concept. Although used sometimes ‘as a synonym for biological life as opposed to political life, bare life is strictly neither natural nor political life, neither the public life of a citizen nor the natural life of an animal’,149 as put by Johanna Oksala. Exemplified by the homo sacer, that could not be officially sacrificed, yet did not enjoy any protection from the society, ‘[b]are life is thus something that cannot be clearly demarcated and then simply negated. It is biological life that has been politicised in being included in the political community, but only through its exclusion.’150 Indeed, as aliens whose fate is completely in the hands of the authorities with indeterminate powers and nearly unlimited margin of discretion, the life of the victims of trafficking is not truly political, for they are not a part of the society (most of the victims, in fact, avoid any contact with authorities in fear of being deported or being treated as criminals) or have the full rights granted to citizens, nor is it merely natural animal life since it must be rescued from panderers, traffickers or other exploiters, to save the spark of life. It is, rather, the politicized form of natural life,151 the bare life in the strict Agambenian sense, politicized only through its exclusion. Yet it must be noticed that the difference between the victims of trafficking and citizens of the state is not one of position but rather one of degree. Because of the indeterminacy of law and rights anyone can suddenly find oneself at any moment in the position of homo sacer. As Agamben states –even though he draws his conclusion from the indeterminate borders of ‘sacred’ life rather than indeterminacy of rules – ‘we are all virtually homines sacri.’152 For those trafficked persons who are not perceived as victims of trafficking the exclusion from the realm of politics is very concrete, rather than virtual, however – they are included within the state’s jurisdiction only to be removed from its territory. Those identified as ‘true’ victims, on the other hand, are seemingly included within the society and provided certain rights, but those rights are not really their rights, for they have no real possibilities of taking advantage of them. The rights do not become void, however, for as Jacques Rancière writes, ‘political names and political places never become merely void.’ Instead, ‘the void is filled 147. Agamben, Homo Sacer, supra note 37, at 71. 148. Ibid., at 8-9. 149. Oksala ‘Violence’, supra note 30, at 30. 150. Ibid., at 30. According to Agamben, this exclusion is what constitutes sovereignty by creating a zone of indistinction where the sovereign power can operate as the one who decides on the exception. 151. Catherine Mills, ‘Agamben’s Messianic Politics: Biopolitics, Abandonment and Happy Life’, 5 Contretemps (2005) 42-62 at 46. 152. Agamben, Homo Sacer, supra note 37, at 115.

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with somebody or something else.’153 Rancière uses an example where rights given to the poor in the Third World are turned into the right of humanitarian intervention and therefore returned to the sender: ‘the disused rights that had been sent to the rightless are sent back to the senders.’154 In the case of trafficking the void is filled with state authorities and humanitarian NGOs, and so the rights of the victims become the rights of well-meaning experts to discipline, treat and govern the victims, providing support to Žižek’s statement that the true homo sacer of today is the privileged object of humanitarian help, taken care of, but in an extremely condescending way.155 Instead of being transformed political, bare life in this case is dressed with the myth of trafficking and expert knowledge (but remains just as bare under these new clothes). The humanitarian and security approaches will inevitably merge in biopolitical pressure and the victims of trafficking are thus exposed to the governmental techniques and the rationality of risk. In here lies the danger that what all the psychological, statistical and medical techniques, applied in order to help the victims and to prevent trafficking, may accomplish, instead of emancipation, is the depolitisation of the victim – even though I do not want to deny the fact that often these treatments are also crucially important from the victim’ perspective. Just like the ‘sans-papier’ (‘illegal’ immigrant) that is noticed only as a ‘dark external threat to our way of life’, but becomes even more invisible through normalization once legalized, the identified trafficking victim also ceases to exist when they are identified and put under the increased disciplinary techniques and surveillance of the victims assistance, and eventually ‘drowned in the indistinct crowd of citizens.’156

5. Conclusion It has been argued in this article that there seem to be biopolitical risk calculations behind the unsolved problems regarding identification of victims of trafficking. From a biopolitical perspective, victims of trafficking can be perceived as doubly traumatized risky subjects, illegal immigrants, disease carriers and/or foreign prostitutes that threaten our sexual and reproductive norms. As such, they must be either normalized or excluded from the society. This result is achieved especially through different discourses, generating a myth of trafficking that affect decision153. Jacques Rancière, ‘Who Is the Subject of the Rights of Man?’, 103 The South Atlantic Quarterly (2004) 297-310 at 307. 154. Ibid., at 308-309. This inspires Slavoj Žižek to declare that Lacan’s formula of communication (“in which the sender gets his own message back from the receiver-addressee in its inverted, i.e. true form”) is in work in the human rights discourse. See Slavoj Žižek, ‘Against Human Rights’, 34 New Left Review (2005) 115-131 at 128. 155. Slavoj Žižek, Tevetuloa reaalisen autiomaahan! & Janne Kurki: Slavoj Zizek – Hollywoodista Irakiin (Apeiron Kirjat: Helsinki, 2004) at 128. 156. Slavoj Žižek, First as Tragedy, Then as Farce (Verso: London and New York, 2009) at 118-119.

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making especially where the margin of discretion of authorities is wide. Because of the myth, only victims that seem innocent, miserable and abused are identified as victims of trafficking. Since these kinds of persons are assumed to be subjects of future risky behavior, they are subjected to different normalizing disciplinary measures and treatments, whereas the victims that do not meet the standards set by the myth remain unidentified and are often deported as illegal immigrants. This latter group forms the vast majority of trafficked persons, for just like in the Victorian era, trafficking today is enabled by increasing migration of women searching for better livelihood, autonomy and economic independence abroad, often fully in knowledge that they will be working in sex business. Here we have, then, an answer for the question set for this article, i.e. ‘why has the problem of identification of victims remained unsolvable’: Victims of trafficking have remained mostly unidentified, because most of them belong to a group that must be excluded from the biopolitical perspective. This exclusion is achieved through myriad, seemingly insignificant norms, practices and discourses that are largely outside the humanitarian reforms aimed to tackle the problem – many of which actually, despite their pure-heartedly set objectives, in fact serve to strengthen the boundaries around the problematic concept of ‘victim of trafficking’. Without a proper genealogical study – that is unfortunately outside the scope of this article – this argument must be treated first and foremost as a hypothesis that can be used to support or inspire more practically orientated studies. Despite all the critique, it has certainly not been my aim to argue that we should completely abandon the humanitarian or human rights approach to trafficking, nor to discredit psychological treatment that in some cases is absolutely vital for abused victims. Making this point clear is crucially important, for my approach also inheres the danger of turning into an exclusive discourse, especially where I compare the victims of trafficking to homines sacri. The aim has, therefore, rather been to point out some of the dangers that we may face if we let our good intentions blind us and forget to assess our every step critically. Moreover, I have sought to implicitly, between the lines, so to say, problematize the concept of ‘victim of trafficking’ that may prevent us from looking at the whole trafficking/migration quagmire holistically and understanding that there are also factors other than organized crime behind the conundrum – most importantly the still increasing gap between the benefiters and losers of global capitalism that is reflected most strongly in the lives of poor Third World women. Perhaps replacing that restricted concept ‘victim of trafficking’ with those of equality and freedom would help the trafficked persons return from the state of bare life into the sphere of politics and escape from the biopolitical trap that is inherent in the concept of homo sacer157 – a concept that hopefully does not define the trafficked persons after all, even 157. See Rancière, ‘Who Is the Subject of the Rights of Man?’, supra note 153; Žižek, ‘Against Human Rights’, supra note 154.

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though fitting in many parts. Presenting sex-trafficking first and foremost as a topic of migration and work, and only secondarily as that of organized crime could perhaps be the first step towards this goal.

Reclaiming Revolution Owen Taylor* AbstrAct: With the events of the Arab Spring the language of revolution has suffused public and academic discourse. In light of this it seems timely to open discussion on how the concept of revolution functions in international legal discourse. This paper argues that the content specific to the modern concept of revolution involves a necessary connection between structural analysis and social agents of change, but that within critical international legal scholarship the organised and disciplined elements of that agency have been elided. This paper argues that this elision is indicative of a broader rejection of modernist elements within critical discourse in international law, stemming from a traumatic relationship to twentieth century history informed by pervasive liberal narratives. This aversion to one side of the concept of revolution severely limits the concepts potential utility in opening up horizons of possibility within international legal discourse. This paper makes a call for the reclamation of revolution’s analytical and political content, through an engagement with its conceptual history, and an examination of revolution’s contemporary theoretical alternatives, such as the Badiouvian ‘event’. It concludes that the planning, organisation and discipline associated with early modern concepts of socialist revolution are necessary components of a meaningfully progressive international legal discourse. Keywords: law, revolution, emancipation, event, conceptual history

1. Introduction The popular uprisings that spread across the Middle East and North Africa region in 2011 resulted in headlines bursting with exuberant references to revolution.1 Since then, the language of revolution has suffused public discourse, from bookstores organising titles under its banner, to renewed interest in Gene Sharp’s ‘handbook’ for instigating radical political change.2 When coupled with * 1. 2.

This is based on a presentation given at the workshop held at the LSE, ‘Towards a Radical International Law’. For invaluable discussion and advice during the writing of this article, thanks go to Rob Knox and Paavo Kotiaho. As always all errors and omissions are the author’s. As an example, see the BBC’s ‘revolution’ timeline, Mark Almond, ‘Egypt Unrest’ BBC News (visited 10 October 2011). Ruaridh Arrow, ‘Gene Sharp: Author of the nonviolent revolution rulebook’ BBC News (visited 03 September 2011), referencing

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the global reverberations of the latest financial crisis, it might seem that we live in ‘revolutionary’ times. Certainly, if we consider the number of events that have attracted the label in only the past two decades, it would seem revolutionary potential abounds. But although such nomenclature certainly captures something about the nature of crisis that pervades contemporary life, it is not clear whether (and if so how), the common label of revolution is intended to link events. Public discourse often slips into almost synonymous usage over a whole host of terms to describe political or social instability, from revolution to unrest, revolt or instability. The term ‘revolution’, however, was used recurrently in relation to media reports on the ‘Arab Spring’, but rarely in reference to the social and political upheaval occurring in Greece as a result of the current financial crisis. Yet protestors in Greece have gathered around the banner of revolution, and during the prefigurative financial collapse in Iceland, workers united to sing The International; making a clear connection between their struggle and socialist revolutionary ideals.3 The selectivity at work highlights the fact that only thirty years earlier the label of revolution would have invoked very different content. And whilst there are common strands between Iceland, Greece, parts of the Arab Spring, and social movements that are in fact drawing on some kind of socialist political heritage, this is not what is being referenced in mainstream media. In common parlance, revolution is invoked in a sense that has broken free of its own conceptual history.4 It is invoked as a label for an event, resisting comparative placement alongside the transformations of the industrial or French Revolutions, or location within the revolutionary ideology of nineteenth and twentieth century socialism. Against this backdrop, this paper sets out to explore the effect of the concept of revolution upon recent international legal discourse. In its most immediate sense, the concept of revolution encompasses processes of change, and in its most progressive self image international law is about the fostering of a better tomor-

3.

4.

Gene Sharp, From Dictatorship to Democracy – A Conceptual Framework for Liberation (first published in Bangkok in 1993) (The Albert Einstein Institution: Boston, 2002). See Helena Smith, ‘Greek protestors storm the Acropolis’, The Guardian, May 4, 2010 (visited 10 October, 2011), and Reuters footage of Icelandic protestors available at (visited 10 October, 2011). The media language in relation to Greece includes some that buck the trend, see Gavin Hewitt’s ‘Greece crises: Revolution in the offing?’ (June, 2011), but the revolutionary ‘example’ referenced in the piece is that of the Arab Spring. Available at (visited 10 October, 2011). The practice of conceptual history (Begriffsgeschichte) refers to the analysis of the historical semantics of terms, developed by, among others, Reinhart Koselleck in The Practice of Conceptual History – Timing History, Spacing Concepts (Stanford University Press, 2002), translated by Todd Samuel Presner and Others. For a similar type of project, see Raymond Williams, Keywords – A Vocabulary of Culture and Society (Oxford University Press, 1976).

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row through the form of law.5 The concept of revolution draws attention to the goal, the present situation, and the methods by which transformation might be achieved. Therefore, examining how the concept of revolution is treated within international legal discourse presents a method of assessing the plausibility of claims for the redemptive promise of international law. Specifically, the immediate concern of this paper is critical international legal theory. The adherents of this particular strand of contemporary international legal theory profess to concern themselves explicitly with the struggles of oppressed peoples and seek to examine the ways in which international law is complicit in their oppression. 6 Critical international law scholars consider a variety of elements of the current international order to be unjust, and seek to challenge and transform that order. Many of their critical insights, however, point towards the necessity of the transcendence rather than the reformist reconfiguration of the present order. It is in this way that the theory of revolution becomes most relevant. In other words, along with an account of the current order’s injustices, one would expect methods by which one might achieve a deeply radical transformation. What is of interest here are the ways in which some of these accounts privilege international law as a locus of engagement, and further privilege a very particular typology of accompanying action, which will be addressed below. These accounts share some elements of the contemporary shift in revolution’s content described at the opening of this paper, but in general are highly selective in their appropriation of revolutionary theory. Rather than rejecting all of revolution’s conceptual history, they elide those components most closely associated with modernism (the content of which will be elaborated below).7 Interestingly, this elision enables

5. 6.

7.

See, for example, Martti Koskenniemi’s discussion, ‘Between Commitment and Cynicism: Outline for a Theory of International Law as Practice’ in Office of Legal Affairs, Collection of Essays (United Nations Press, 1999) at 495. There is a variety of material that comes under such a description, including the selection taken up for closer examination in this paper. Third World Approaches to International Law (TWAIL) can generally be seen to fall within the description used here, although there are a variety of ways of conceptualising the affiliation that links scholarship under this umbrella. See Makau Mutua, ‘What is TWAIL?’, 94 Proceedings of the Annual Meeting (American Society of International Law) (2000) 31-40; B. S. Chimni, ‘Third World Approaches to International Law: A Manifesto’, 8 International Community Law Review (2006) 3-27; and Obiora Okafor, ‘Critical Third World Approaches to International Law (TWAIL: Theory, Methodology, or Both?)’, 10 International Community Law Review (2008) 371-378. For broader discussion of the modernism see Richard Ellmann and Charles Feidelson (eds.), The Modern Tradition (Oxford University Press: New York, 1965); on the issues involved in defining modernism see Mary Gluck, ‘Toward a Historical Definition of Modernism: Georg Lukacs and the Avant-Garde’, 58 The Journal of Modern History (1986) 845-882; Nathanial Berman has done extensive work on modernism and international law, in particular see ‘Modernism, Nationalism, and the Rhetoric of Reconstruction’, 4 Yale Journal of Law and the Humanities (1992) 351-380.

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this body of scholarship to maintain a greater attachment to the liberal promise of international law than is explicit in its own self-perception. This task cannot be conducted in a straightforward manner, however. As will be made clear below, the direct relationship between international law and revolution can seem rather doctrinaire – a discussion of revolutionary events to which international law may have some kind of relationship. In this vein international law acts upon the revolution in one direction – the revolution has no formative influence on international law. Similarly, in academic discourse, the concept of revolution is equally inhibited from providing critical reflection on the structures of international law. It is for this reason that this paper does not concern itself directly with doctrinal State Succession for example, although the implications of the theoretical analysis conducted in this paper do apply to doctrinal issues. Instead, this paper aims to draw out the function of revolution’s theoretical components. In referencing political and social change, discussions of revolution involve a narrative of the (often explosive) interaction between social groups and their broader political environment; in theoretical terms, the interaction between the categories of ‘agency’ and ‘structure’. The premise of this paper is that through analysing the role of the concepts of structure and agency within international legal discourse one can infer a theory of revolution where it may otherwise be implicit, and then align this with those rare moments in the discourse where revolution is discussed more openly. This paper begins with a brief sketch of the conceptual history of revolution; fleshing out Reinhart Koselleck’s description of revolution as a ‘linguistic product of our modernity.’8 This will be supplemented by a terminological discussion of revolution, in order to demonstrate the need for the above methodology of inference. The paper will then consider how the concept of revolution is deployed in contemporary international legal discourse, outlining the kind of content that accompanies discussion of revolution through theories of structure and agency. Latter sections will explore the theoretical function of alternative concepts substituted for revolution, such as that of the ‘event’, and proffer possible reasons for this switch. The paper will then conclude by examining the consequences of the concept of revolution considered as separable from its modernist components. The over-arching argument is that an underlying aversion to modernism lies behind the treatment of the concept of revolution assessed in this paper. It would seem that the concept of revolution as relating to the disciplined, and often party-based, organisation of ‘revolutionaries’ is associated with a defunct Cold War politics and a redundant political struggle of socialism against the forces of capital. The concept in this light is then also linked with all the worst percep8.

Reinhart Koselleck, Futures Past – On the Semantics of Historical Time (The MIT Press: Cambridge, MA., 1979) at 40 (translated by Keith Tribe).

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tions of that movement.9 As a result, conceiving of revolution as relating to the opposites of these ‘modernist’ characteristics – spontaneity, mass participation without organisation, non-party forms, and non-violent methods – is seen to offer a morally superior and historically sanitised conception of political change. However, as will be argued here, this perspective rests on a false division within the characteristics of revolution, is based on a strained historiography, and suffers from the incorporation of problematic historical narratives. It is also a position that lends itself to the perception of the current moment as novel, both in terms of the world and its social groups, in order to enable a fresh kind of revolutionary possibility, thereby eliding structural continuity. Overall, such a position is both theoretically and practically disabling, and indeed contains elements of a retrograde conception of revolution draped in religious mysticism.

2. The Conceptual History of Revolution Before we open discussion on the contemporary function of revolution, however, it is necessary to briefly explore its conceptual history, in order to understand how ideas about what revolution meant changed from the limited to the transcendental. Revolution has aptly been described as ‘one of the looser words’.10 Studies can range from the highly inclusive, to the highly exclusive. But in this sense we are encountering revolution as a descriptive term, the criteria of which are then the point of debate. Commentators would almost universally agree that events such as the French, Russian and Chinese revolutions qualify as such, but beyond these major three it becomes less certain.11 The point here is not to become immersed in a debate about who has the most accurate definition of a revolutionary event. Its invocation in this debate is simply intended to identify a moment of particularly rapid and extensive political change, generally with the involvement of a large portion of the population, and generally involving change in leadership. What this fails to engage with are those elements that set revolution apart; those elements linked to the conceptual development of revolution. These are the ways in which revolution has become a politically mobilizing concept, one linked to the creation of a progressive future, brought about by human agency. How revolution has come to reference human freedom and emancipation, and be intimately linked to the conceptualisation of history as human progress. 9.

As an example see Stephane Courtois (ed.), The Black Book of Communism: Crimes, Terror, Repression (Harvard University Press, 1999), also Francois Furet, The Passing of an Illusion (University of Chicago Press, 1995). For how this trend incorporated the rehabilitation of Ernst Nolte, see Enzo Traverso, “The New Anti-Communism: Re-reading the Twentieth Century” in Haynes and Wolfreys, History and Revolution (Verso: London, 2007). 10. Crane Brinton, The Anatomy of Revolution (Vintage: New York, 1938) at 3. 11. See the discussion in Jack A. Goldstone, ‘Theories of Revolution: The Third Generation’, 32 World Politics (1980) 425-453.

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Before the shift in the use and referent of the concept, revolution was not conceived of as a transcendental process. When contemporary commentary is restricted to what qualifies as revolution by extremity of political upheaval, then there is little to distinguish the term from its antecedents. Revolution underwent near synonymous usage alongside revolt or rebellion (if used at all) in fifteenth century England, often intended to insinuate a process of cyclic restoration, linked to the revolution of heavenly bodies and the wheel of fate.12 In this vein the English Civil War was seen through the lens of revolt, and the restitution of the monarchy then witnessed the first real contemporaneous use of the term in the ‘Glorious Revolution’ of 1688.13 We can even trace the usage of revolution back to the writings of Aristotle, used to refer to cyclic change between the known ways of organising the political life of city-state communities.14 Describing the Arab Spring as a revolution in this sense is accurate, yet it misses something in the later history of thought on revolution. The marked transformation mentioned in the introduction of this paper comes with the French Revolution.15 It is alongside the explosion of universal democratic ideals, the participation of previously excluded groups in political life, and the materialisation of these ideas in constitutional documents, that much of the groundwork for the emancipatory content of revolution is laid. The historical events themselves have been extensively examined,16 but the focus here is on the shifting content and meaning of the term revolution. These changes occur alongside, and in partnership with, shifts in the conceptualisation of history itself.17 The term ‘revolution’ becomes meta-historical, applicable to all times and places, used to refer to a kind of ‘great leap’ forward along the progressive line of human development. In some senses it represents the transposition of religious salvation to the human realm, the partial secularization of eschatological vision.18 This can be read almost as an accident of history, as de Tocqueville chose to understand the abstract, generalised nature of the directives of the revolution, at the hand of inexperienced political actors. ‘Thus instead of attacking only such laws as seemed objectionable, the idea developed that all laws, indiscriminately must be abolished and a wholly new system of government... should replace the 12. 13. 14. 15.

Williams, Keywords, supra note 4, at 271. Ibid. Aristotle, The Politics, Vol. I (Clarendon Press: Oxford, 1885) at 145 (translated by B. Jowett). It would be worth qualifying this with the inclusion of the industrial revolution in England as the foundations of much of the changes to come in France, see Eric Hobsbawm, The Age of Revolution (Abacus: London, 2003). 16. See William Doyle, The Oxford History of the French Revolution (2nd edn, Oxford University Press, 2002) for one example of many; for a recent and concise account see Sylvia Neely, A concise history of the French Revolution (Rowman & Littlefield: Plymouth, 2008). 17. Koselleck, Futures Past, supra note 8, part I in general. 18. Ibid., at 46-54.

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French constitution.’19 But it would seem, rather than some accident, to be a necessary corollary of the kind of paradigm shift involved.20 The Declaration of the Rights of Man, as Mirabeau said, was ‘applicable to all times, all places and all climes.’21 It is in this sense that Koselleck can note the shift in revolutionary rhetoric to target all mankind, at all times; a general creed of emancipation.22 Combined with nineteenth century theories of evolution, the narrative of the progress of both the human species and human civilisation entwined presented a powerful component of the dawn of modernist thought and scientific progress. The combination of the radical shift in social forces involved in these political developments and industrial progress allows one far greater insight into the contemporary impact of the evocative image of revolution as the locomotive of history. It is in part the legacy of such a powerful and all-encompassing shift that historical work on the subject could take on something of a lyrical note. Discussing sixteenth century England, Perez Zagorin opens with the claim that ‘it is no exaggeration to call revolution the master theme in the history of the present age. A will to transformation self-conscious, planned and guided by doctrine, has come to dominate human affairs.’23 Part of the current distaste with the modernist elements of revolution that this paper argues as pervasive in critical international legal discourse may be read as a reaction to this romanticised engagement with revolution. Clearly, there are a variety of ways in which the transformation of ideas and practice mentioned above could be (and were) harnessed to serve narratives of racial or cultural superiority, and to support new forms of exploitation, exclusion and oppression. Even the emancipatory elements of revolutionary socialism, that stressed the common cause of oppressed people of all backgrounds and aspired to the liberation of humanity from the trials of both subsistence living and capitalist oppression, could serve to justify new forms of oppressive rule. Acknowledging this is nothing new. However, it is clear that in the contemporary era, where revolution is no longer used in clear connection with its socialist heritage, over emphasis on these potential dangers is serving to ‘stunt the political imagination’ in certain circles.24 In the face of this, it is difficult to deny the impact that the politics of the concept of revolution had on the 20th century. 19. Alexis de Tocqueville, Alexis de Tocqueville on democracy, revolution, and society: selected writings (University of Chicago Press, 1980) at 236. 20. In this vein it is worth linking de Tocqueville’s interpretive lens to his opinion of socialists as ‘rabble’, Ibid. 21. Cited in Haynes and Wolfreys, History and Revolution, supra note 9, at 3. 22. Koselleck, Futures Past, supra note 8, at 46-54. 23. Perez Zagorin, ‘The English Revolution’, cited in Haynes and Wolfreys, History and Revolution, supra note 9, at 15. 24. Anne Orford (Chair), Philip Allot, Nathaniel Berman, Ruth Buchanan, B. S. Chimni, China Miéville, and Vasuki Nesiah, ‘Roundtable on Law, Force and Revolution’, 100 American Society of International Law Proceedings (2006) at 265.

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2.1. Revolution and Political Semantics The selective naming of some contemporary events as revolution and others as something else amply demonstrates the political stakes involved in the act of naming. Not only do certain events become divested of revolutionary identity, but that very historical identity is transformed through its application elsewhere, to different ends and in the service of an alternative historical narrative. To a certain extent the colonisation of terminology can limit imagination, and in this sense we could decry the lost content of revolution in the current political imagination of the industrialised world. But the effects are more pervasive than this. The conceptual history of revolution, closely entwined with a shift in the interpretation of history as part of the development of modernism,25 opened up a particular way of understanding the interaction between competing social interests and the broader direction of historical movement. The combination of a modernist perception of history and the concept of revolution was integral to the rendering of the social world as knowable through scientific endeavour, upon which one could build a political program and mobilise social forces for change.26 Losing this aspect of the terminology of revolution would not only leave an anaemic concept of political change, but cede this ground of knowledge and political strength to those forces which already occupy it. The qualification between ‘revolution’ and its near synonyms can have further important ramifications, not only in terms of historical legacy but for the political situation in which they are invoked. Take Rochefoucauld’s purported response to King Louis XVI overlooking the riots in Paris in 1789. When asked by the King ‘is this a revolt?’ the sardonic reply, ‘no Sire, it is a revolution’, encompasses a depth of meaning.27 Any kind of change or event is accorded a significantly grander import when labelled as a revolution, whereas conservative or reactionary forces may desire (or only be able) to see a simple uprising. Equally if one thinks of revolution as a catastrophic destruction of a comforting social order, then a revolutionary label escalates the sense of threat and therefore possible response, just as combating the spread of ‘revolution’ was a central animating and enabling component of American foreign policy during the Cold War. What makes the exchange between Louis XVI and Rochefoucauld meaningful is precisely the strength of possibility, and threat to the old conservative order, present in the concept of revolution. A riot will most likely pass and leave the old order intact. Revolution threatens to change everything. The symbolic importance of the execution that faced the French monarch, like that of Charles I in England 25. Koselleck, Futures Past supra note 8; and see chapter 10 in Koselleck, The Practice of Conceptual History, supra note 4. 26. This would be the basis of the programme contain in Karl Marx and Frederick Engels, The Communist Manifesto (International Publishers: New York, 1948, 2003). 27. Guy Chaussinand-Nogaret, La Bastille est Prise (Éditions Complexe: Paris, 1988) at 102.

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over a century before, cannot be underappreciated for the context in which it occurred. But the intellectual milieu in which such a simple shift in terminology could encompass so much was indicative of a broader and more powerful shift. The industrial revolution, the French revolution, and the concurrent changes that form the basis of the modern era, form the crucible in which these concepts transformed meaning, and in which revolution in its radical sense is born. After this transition, the idea of revolution brings with it images of fundamental change; in the name of freedom, or emancipation, from conditions inimical to human life - a change that crucially involved large numbers of people consciously engaging in the historical process.28 Be it liberation from the yoke of feudalism, hereditary privilege, colonial rule, or even wage labour, since the advent of the modern era revolution has pointed towards broad ideals for human emancipation.

2.2. Revolution and International Law In the context of the preceding observations, and its radical heritage, the liberal usage of the term revolution in recent years may seem more politically charged. Attached to the events in the Middle East and North Africa, the label can have both progressive and reactionary overtones. Progressive in the sense that it may pay homage to the passionate nature of individual struggles, and the organisational effort involved; yet reactionary in that it serves to bound the limits of social struggle through closure – the ‘revolution’ shifts focus into the past tense; it has occurred, what now follows is reconstruction. In this sense it also serves to set limits on the goals of a social movement, especially when considered in relation to external interests. We can see this process exemplified in the context of Egypt, where the label of revolution (implying significant change) can elide the Egyptian military’s move to stress their adherence to existing international agreements, and with the backtracking forced on the Egyptian finance ministry

28. The extent to which one can attribute ‘consciousness’ to this kind of engagement has been contested, as part of a central debate over the criteria for revolution. As will become clear within this paper, precise criteria for the definition of an event as a revolution is a particularly uninteresting part of the discussion – what is of concern are the coordinates in which it takes place; the points drawn up by how revolution is conceived in the first instance. For the changing nature of the concept of revolution see Koselleck, Futures Past supra note 8. Also see Peter Calvert, Revolution and Counter-Revolution (Open University Press: 1990). For an account of revolutionary theory more generally, Goldstone, ‘Theories of Revolution’, supra note 11 and Jack A. Goldstone, ‘Toward a Fourth Generation of Revolutionary Theory’, 4 Annual Review of Political Science (2001) 139-187; also see John Foran, ‘Theories of Revolution Revisited: Toward a Fourth Generation?’, 11 Sociological Theory (1993) 1-20, and Randall Collins, ‘Maturation of the State-Centered Theory of Revolution and Ideology’, 11 Sociological Theory (1993) 117-128.

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around the acceptance of IMF loans. 29 In other words, the label serves to imply a form of radical change despite a series of structural continuities.30 Many of these continuities are both comprised of, and underpinned by, international law. The Egyptian military were promising to adhere to pre-existing international agreements. Nearly all contemporary State economies are integrated into a broader network comprised of a net of both private and public international legal agreements. Discussions around the doctrine of succession in international law deal precisely with how continuity or change can be affirmed.31 It is in this rather formal sense that international law and revolution have their most immediate and close relationship. Historically, the notion of State transformation stretched beyond the formal discussion over the application of a particular treaty within changed circumstances into the very theoretical foundations of law and Statehood as a legal category. It became less about how to apply legal formulae, as much about the founding moments of law itself. There is an immediate logical relationship between international law and revolution in this sense, something that took on a more explicit tone as revolutionary movements, in the Marxist vein, orientated themselves toward the international. The attempt to radically transform existing national and international relations rendered explicit the relationship between law and political power. In the example of the Bolshevik Revolution, the abolition of domestic law (putting to one side its subsequent re-establishment) stood alongside the continuity of Tsarist obligations under international law. Similarly, the process of Decolonization confronted the same issues of attempted transformation in an international milieu of preformed legal structures.32 Competing interests meant likely confrontation over the con29. See Anon., ‘Egypt military authorities “to respect all treaties”’, BBC News (visited 10 October 2011). For the initial ‘misrepresentation’ of Fayza Abul Naga’s comments in relation to IMF loans see Almasry Alyoum ‘Egypt declines World Bank loan as incompatible with national interest’ (June 2011) available at (visited 10 October 2011). The backtracking referred to the quick qualification of the prior statement; negotiations resumed, under more stringent loan conditions, and were underway as of October 2011. 30. Of course, revolution can only effectively be considered as closure by avoiding recognising it as a process of struggle. In other words, it is far easier for the label of revolution to serve its reactionary function when it is invoked in the absence of a concept of counter-revolution – a term which is entirely absent from the mainstream media, and is often neglected in critical narratives that invoke revolution divested of its modernist attributes. 31. Daniel O’Connell, Law of State Succession (Cambridge University Press, 1956) and Hersch Lauterpacht, Private Sources and Analogies of Law (Longmans: London, 1927) cited in Matthew Craven, The Decolonization of International Law (Oxford University Press, 2008) 23-24. Craven’s analysis is particularly pertinent on how legal engagement would categorise an event in order to attribute certain consequences to it; if it is a case for the law of succession, then something radical has occurred, whereas simultaneously this process is normalised through the application of pre-existing legal doctrine, at 24-25 32. This is a work in progress but for some of the debates from the Soviet perspective see T. Tara-

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tinuing application of treaties from pre-revolutionary times, and the terms on which the revolutionary state (or other entity) might interact with the ‘existing community’ of states. But the very terms of such battles were themselves necessarily contested as part of the revolutionary process. To have revolution appear as an issue of continuity between changes of government on the international plane in itself represented a victory over the aspirations of revolutionary states seeking a radical restructuring of their relationship with the outside world. Conversely, incorporating too fundamental a change into international legal argument presented the possibility of the benefits of international legal personality being deprived. 33 The nature of these practical struggles meant that their replication in academic discussion was inevitable, and across both these periods there were a variety of attempts to understand how revolutionary aspirations could mesh with the conservative nature of international law.34 The focus of this paper, however, is couzio The Soviet Union and International Law (Macmillan: New York, 1935), and Kazimierz Grzybowski Soviet International Law and the World Economic Order (Duke University Press: Durham, 1987). Discussion revolved around the compatibility between a ‘world revolution’ and international law, or whether there would be a qualitatively different ‘international law’ between socialist states, although all of this imagery has to be contextualised and understood in the contested sense to which the concept of revolution draws attention. Taracouzio’s work should be read alongside the critical reviews of E.A Korovin, 49 (8) Harvard Law Review (1936) 1392-1395, and Philip Jessup, 9 Pacific Affairs (1936) 127-130. The most prominent example of sustained engagement with International Law from the Third World Perspective with a revolutionary mindset would be Mohammed Bedjaoui, Towards a New International Economic Order (Holmes and Meier: New York and London, 1979), but the same language pervaded the international dialogue from Bandung through to the latter 1970s. The International Law Commission’s investigations into State Succession form the doctrinal side of this coin; for a comprehensive analysis of this in relation to treaties see Craven, The Decolonization of International Law, supra note 31. 33. Revolution in its contemporary sense always had an internationalist element, but this often merged with nationalism in complex ways. For example, see Hobsbawm, The Age of Revolution, supra note 15. Alistair Bonnett discusses some of the ways in which African Socialism incorporated nationalist historiographies, locating communist precursors in pre-colonial pasts: Alastair Bonnett, Left in the Past – Radicalism and the Politics of Nostalgia (Continuum: New York, 2010) chapter 3; also see Julius K. Nyerere, Ujamaa – Essays on Socialism (OUP: London, 1968) and William H. Friedland and Carl G. Rosberg Jr., (eds.), African Socialism (Stanford University Press: Stanford, 1964). 34. Again, this is a work in progress. Within the Soviet context these debates focused on the very nature of the law itself, see P.I. Stuchka, Selected Writings on Soviet Law and Marxism (M.E. Sharpe: New York, 1988) (translated by Piers Beirne, Peter Maggs and Robert Sharlet); and E.B. Pashukanis, A General Theory of Law and Marxism in Maggs, Piers Beirne and Robert Sharlet (eds.) Selected Writings on Marxism and Law (Academic Press: London, 1980); for decolonisation and the Third World movement, the best example of the attempt to harness revolutionary change to the chariot of law remains Bedjaoui, New International Economic Order, supra note 32. However this topic covers a vast selection of material. For a non-legal focus see Herb Addo Transforming the World Economy – Nine Critical Essays on the International Economic Order (Hodder and Stoughton: London, 1984). Gamani Corea’s Need for Change (Pergamon Press: Oxford,

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less this broader historical relationship (the breadth of which stretches beyond the ambit of a single article) but the ways in which the academic side of this discussion manifests itself today, most especially in critical engagements with international law. In much of this critical international legal scholarship, we witness an attempt to engage productively with the various struggles of oppressed peoples through the lens of international law. Their discussion favours concepts of resistance and general political change, yet as explained above the concept of revolution can be inferred to useful effect, as will be clear below. The centennial American Society of International Law (ASIL) did however host a roundtable at which a small number of scholars discussed the relationship between law, force and revolution.35 In much of this scholarship, and particularly at the roundtable, it is clear that many of the same concerns of the prior era of Russian socialism and decolonisation continue to dominate, and yet in contemporary discussion there appears to be less certainty about what the concept of revolution itself entails. Perhaps more than an uncertainty we can note a schism; a rift between those invoking revolution as having some determinate heritage in the sense described above, and those for whom the concept is more amorphous. At the ASIL discussion Vasuki Nesiah demonstrated the latter in describing revolution as both ‘nostalgic’ and ‘utopian’. The nostalgic vision is one that ‘laments the passing’ of earlier revolutionary movements, whereas the utopian vision examines the ‘roads not taken’ in those previous instances.36 It is this utopian vision that has revolutionary potential, focusing on the ‘contingency of the present’.37 In contrast, China Mieville’s invocations of Leninist ‘restraint’ and the ‘right of the oppressed to realpolitik, just like the ruling class’, make clear reference to socialist revolutionary theory.38 As will be discussed below, those who embrace revolution in the new, amorphous light mentioned above tend to reject those elements of the ‘old’ concept of revolution (as a political objective requiring coordination, organisation and discipline), instead favouring the characteristics of spontaneity, of a more primal and instinctual action, and an environment in which the causes of revolution (and therefore the potential for future revolution) are unperceivable and therefore limitless. This manifests itself as a tendency towards opposition to contemporary modes of power (definite forms, certainty of action, discipline and organisation), and the location of revolution and its emancipatory potential outside of these

35. 36. 37. 38.

1980) covers the close relationship between the function of the United Nations Conference on Trade and Development (UNCTAD) and the New International Economic Order (NIEO). Anne Orford (Chair), ‘Roundtable on Law, Force and Revolution’, supra note 24. Ibid., at 264. Ibid., at 265. Ibid., at 270.

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coordinates.39 Unfortunately, this is also a position that holds common ground with the contemporary media invocations of revolution that turn a blind eye to its conceptual history.

3. Unpacking Revolution - Structure and Agency As mentioned above, the modern concept of revolution took shape as part of a shift in the understanding and use of history as part of the development of modernism. Among the epistemological consequences of this changing concept was a conceptual separation between the ‘structures’ that define social life, and the ‘agency’ of humanity to conduct its own activities within.40 The ‘structure’ could contain conditions conducive to revolutionary change, and within that structure, social groups would have the agency to participate in such a process. Politically, the separation of these factors gave rise to the need to analyse the social world in order to recognise the structure within which one could act politically, with a concurrent impetus to mobilise agents to act on that knowledge. Different kinds of action could be effective depending on the structural conditions pertaining at any given time. Although this may seem something of an artificial separation, it was significant for a host of reasons. Firstly it was very much a product of the confidence of modernist thinkers and Enlightenment philosophers – the external world was considered knowable; it was possible through sustained and careful analysis to pick out trends in historical trajectories, and to build up a complex understanding of the social world in which humanity existed. More importantly, those with the political inclination could mobilise groups of people to intervene in this structure in order to transform it. It is this potentially emancipatory element that was the central shift in the conceptual history of revolution. It is also a central component of class analysis, situating agency within a particular set of structural conditions and determining how the direction and intent of that agency correlated to particular groups with particular relationships to their social structure.41 But it is also important in challenging unsubstantiated assertions about the freedom to act, or the efficacy of challenges to a social order. Combining understandings of agency with explicit theories of structural conditions meant that 39. Which has its historical antecedents, against which Jo Freeman called for caution, see Jo Freeman, ‘The Tyranny of Structurelessness’, 17 Berkeley Journal of Sociology (1972-3) 151-164. 40. See the introduction in Anthony Giddens, The Constitution of Society (University of California Press: Berkeley and Los Angeles, 1984), in which the critical history of field of sociology indirectly elaborates this point. 41. See Akbar Rasulov, ‘“The Nameless Rapture of the Struggle”: Towards a Marxist Class-Theoretic Approach to International Law’, 19 Finnish Yearbook of International Law (2008) 243-294. Also see B. S. Chimni, ‘Prolegomena to a Class Approach to International Law’, 21 (1) European Journal of International Law (2010) 57-82.

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connections had to be made between them. It opened up possibilities of radical social change brought about through concerted action, but it also tied those radical possibilities to analysis of why or how they would be effective. Perhaps most importantly, and this is also at the heart of class-based analysis, it demands close attention to the ways in which differing social aspirations of different groups clashed, and therefore forced the activity of opposing social forces to be taken into consideration. In revolutionary parlance, revolution was always accompanied by counter-revolution.

3.1. Structure in Critical International Legal Discourse The structural dimension of revolution in some contemporary international legal scholarship has much in common with that in public discourse discussed at the beginning of this paper. According to Philip Allot we are ‘living in revolutionary times.’42 For Allott these are times in which ‘[t]he internal and the external, the national and the international, are now completely flowing into each other’.43 Allott is far from alone in the use of evocative language to describe the ‘structure’ in which we might consider revolution. This new world is one in which, for Balakrishnan Rajagopal, ‘[t]he Third World has burst out of the seams of the Westphalian structure.’44 B.S. Chimni has argued that these changing structures are representative of the nascent development of a form of ‘global state’45, in which a transnational capitalist class jet-sets across (to it) increasingly obsolete national boundaries. A consequence of the amorphous nature of this new and complex structure is that, for Vasuki Nesiah, ‘resistance [occurs] in an abyss’46. Coupled with these descriptions, we are also faced with what Ruth Buchanan describes as a powerful imperial international order that demonstrates a ‘remarkable capacity to adopt and continue to contain violent challenges that would otherwise disrupt it.’47 We can see from these snapshots that the ‘revolutionary times’ in which we may or may not be living are both thought to embody some kind of collapse of power (everything flowing into everything else, or Westphalian structures 42. Philip Allott, ‘Review Essay Symposium: Philip Allot’s Eunomia and The Health of Nations - Thinking Another World: “This Cannot Be How the World Was Meant to Be”’, 16 European Journal of International Law (2005) 255-297 at 257; it is interesting to note that such a claim continues to be echoed today, reinforced by the Arab Spring but no different in formulation, see Jacqueline Rose, ‘What more could we want of ourselves!’, 33 (12) London Review of Books (2011) 5-12. 43. Orford et al., ‘Roundtable’ supra note 24, at 263. 44. Balakrishnan Rajagopal, ‘Counter-hegemonic International Law: rethinking human rights and development as a Third World Strategy’, 27 (5)Third World Quarterly (2006) 767-783 at 768. 45. B. S. Chimni, ‘International Institutions Today: An Imperial Global State in the Making’, 15 (1) European Journal of International Law (2004) 1-37. 46. Vasuki Nesiah, ‘Resistance in the Ages of Empire: Occupied Discourse Pending Investigation’, 27 (5) Third World Quarterly (2006) 903-922 at 918. 47. Orford et al., ‘Roundtable’ supra note 24, at 268.

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overcome) juxtaposed against a vision of the isolation, enervation or inefficacy of agency within this (it is disconnected, co-opted and contained). This presents a structure both open and closed to potential agency. In common, there is something particular about the kind of structure we are faced with today that differentiates it from prior forms. In terms of the discussion at hand, linking structure and agency, the presupposition of these authors is such that ‘new’ structures may engender ‘new’ agency.

3.2. Agency in Critical International Legal Discourse Descriptions of agency in this moment are less uniform than the depictions of structure, although a tendency toward idealism seems prominent. For example, for Allott agency consists of the ability to actively choose to perceive a moment in time as revolutionary.48 It is through the alteration of consciousness that realms of possibility are opened up – either to defend the status quo, or to re-imagine the future and shape it in that image.49 In this vein revolutionary agency (perhaps of enlightened academics) arises in the capacity to alter the consciousness of the middle class. Stepping outside of the cerebral however, we can see agency located in new social movements that are themselves part of the new structures visible to the analytic eye.50 For Rajagopal, these movements operate in opposition to dominant modes of power and organisation, transgressing and crossing boundaries. Yet, and here Rajagopal takes a position similar to Allott, their revolutionary potential is, in part, realised through redefinition. These new social movements ‘seek to define the political in non-institutional, non-party, cultural terms. They seek to redefine the economy in place-based, rather than space-based, terms. And they seek to redefine law in radically pluralistic terms.’51 This implies that political and economic forces have their particular characteristics due to definition, rather than material function, and that they are in turn open to re-conceptualisation as an act of will. Furthermore, it implies that somehow the oppressive function of law stems from its definition as something monolithic, and that radical legal pluralism contains the seeds of emancipation. Even without unpacking the precise transformative vision behind these attempts at redefinition, it is clear that the agency envisaged is tied to a particular structural understanding – one that sees material conditions as the result of interpretative or definitional agency, not concrete social relations. ‘Law’ in this line of argument becomes something abstract that can be forced into plural forms, while 48. In this sense Allott himself is acting out his own vision of revolutionary agency. 49. This position usefully privileges ‘committed intellectuals’, in Allott’s words, who can use their imagination to attempt to convert potential revolutionaries to the cause. 50. Allott’s intended proto-revolutionary audience, the middle class, obviously has a longer pedigree. 51. Balakrishnan Rajagopal, International Law from Below: Development, Social. Movements and Third World Resistance (Cambridge University Press, 2003) at 293.

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the content of the legal form lies unaddressed.52 The result is that the necessary connection between agency and structure is rendered meaningless, as the latter is collapsed into a subjective ‘act’ of altered perception. Any kind of agency is possible, as the ‘structure’ is entirely contingent. Chimni’s description of agency also tends to fall foul of a similar drift into idealism. This is surprising considering that the bulk of his various analyses utilise the tools of the ‘old’ revolutionary tradition noted above, and thus should be placed on that side of the aforementioned rift. But although Chimni’s structural accounts locate themselves in close proximity to the Marxist tradition, his descriptions of agency falter somewhat. In addition to a wealth of analysis addressing more ‘traditional’ forms of revolutionary agency, and its weakness in the face of contemporary changes, Chimni finds potential new resistance in the ‘imaginative use of literature, theatre and the arts’, to provide a possible way of affecting the consciousness of city dwellers within the nascent global state.53 Furthermore Chimni posits the explicit and unqualified disavowal of violent means, in line with Ghandian philosophy.54 He does not, however, provide a structural link as to why a non-violent approach is appropriate, how it may prove effective, or even how it is to be embraced in the face of the systematic presence of violence within capitalism.55 It becomes impossible to contextualise Ghandi’s message as one which had a particular efficacy in achieving a particular kind of political objective within British controlled India. Instead Chimni takes the tactics of a particular movement to embody the essence of progressive change, irrespective of different contexts. The agency he describes is therefore predominantly hopeful – one that trusts that moral appeals may turn the tide of oppression or that embracing ethical non-violence will secure an (at least) spiritual victory. Interestingly, and surely not coincidentally, this privileging of abstract agency also reflects the trend in American Sociology from the latter half of the twentieth century that decentres issues of agency within revolutionary theory, embodied in the much quoted phrase ‘revolutions are not made; they come.’56 The con52. For discussion on this function of the legal form see China Miéville, ‘The Commodity-Form Theory of International Law: An Introduction’, 17 Leiden Journal of International Law (2004) 271-302. 53. Chimni, ‘International Institutions’ supra note 45, at 37. 54. Ibid. This brief and concluding paragraph sits uncomfortably as the final word on the preceding analysis which shows admirable attention to the wealth of problems that confront resistance to the components of the ‘global state’ thesis. 55. Without stepping into the strange liberal myopia of individual ‘action’ (and thus violence) being entirely distinct from ‘inaction’ (to prevent violence) – a liberal myopia that, it is worth noting, is entirely embedded within law. For a critical analysis of unequivocal Ghandian non-violence, see Domenico Losurdo, ‘Moral Dilemmas and Broken Promises: A Historical-Philosophical Overview of the Nonviolent Movement’ 18 Historical Materialism (2010) 85-134. 56. See Theda Skocpol, States and Social Revolutions: A Comparative Analysis of France, Russia, and China (Cambridge University Press 1979) at 17.

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temporary political impact is to suggest either passivity in anticipation of future, structurally induced change, or complete freedom of action in acknowledgement that any number of spontaneous acts may be retrospectively understood as compromising the structural conditions for revolution. If a revolution ‘cannot be timed’ as Nesiah claims,57 then it cannot be planned, or instigated. Nesiah invokes Deleuze and Guattari’s image of a network structure, with ‘overlapping, intersecting and competing networks that constitute our “new global reality”’, as a way of furthering a project of pluralising historical and temporal narratives.58 Agency becomes a process of unveiling, of revealing contradiction and possibility; whereas it is from within the contradictions of the new network structure that our existence is defined and that an emancipatory trajectory may emerge – ‘fir[ing] the arrow’ that carries us into a new future.59

3.3.Agency and Structure combined – revolution or resistance? The reference to Deleuze and Guattari, and Hardt and Negri’s use of them, is telling, as it opens up the ways in which this scholarship tends towards a dependency on new technological developments for the location of revolutionary potential, structural or otherwise. People’s ability to organise outside of the constrictions of state power, to communicate across borders and to send messages instantaneously to one another across riot-filled streets, presents a heady concoction for the theorist searching for novel revolutionary agency. In this sense, opposition to power, even when momentary, or even worse simple acts of transgression, become somehow fundamentally challenging in and of themselves, as they occur within a moment already rife with potential – any act among the myriad acts of resistance may be the first spark of a chain reaction that could grow to unimaginable proportions. However, the emphasis in such a note should be on the ‘could’. It is this same novel moment in which Buchanan notes we perceive a form of order remarkably capable of adaptation and absorption. The same technological change that enables rapid communication and the instant creation of virtual communities can serve to alienate and isolate those same individuals. They also enable greater surveillance, and create dependence on network infrastructure and forms of personal finance and contract. We can see that the same developments Allott sees breaking down state power and forcing everything to flow into a ‘discombobulated morass’,60 also form the foundation of Chimni’s analysis of a transnational capitalist class, enabling their lifestyle and empowering their exploitation. There 57. Nesiah, ‘Resistance’ supra note 46, at 918. 58. Ibid. 59. The archery metaphor is taken from Michael Hardt and Antonio Negri, Multitude – War and Democracy in the Age of Empire, (Penguin: New York, 2004) at 29 - following Nesiah’s example. 60. Thanks to Miéville for this alluring turn of phrase; ‘The Commodity-Form Theory’ supra note 52, at 276

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is no inherent reason in any of the foregoing descriptions as to why the novel structure should serve the needs of the global oppressed, or why novel forms of agency should be particularly successful. Especially when it would appear that those new developments serve as crucial enabling components for new kinds (or levels) of exploitation.61 It is also imperative to avoid entering a descriptive mode which focuses on the novelty of the present moment to the exclusion of other perspectives. It is essential not to overlook the fact that the changes pointed out in arguments like those above operate within a broader continuity - especially if we consider this as part of a broader integration within an economic system defined by continual processes of change and innovation. Recognising these systemic continuities also enables critical reflection on the locus of agency within any appeal to moral consciousness, either through communicating our own re-imagined future, or through ‘challenging’ artistic productions. Part of the novelty of the present moment would surely include the recognition of the use of such emotional connections as commodities and advertising gimmicks in themselves. There are tensions within the scholarship briefly surveyed here, between those analyses that stress the dramatic nature of contemporary change, and those like Chimni’s and Buchanan’s that note elements of continuity within the novelty of the present moment; those for whom the structures perhaps offer a little less by the way of hope for revolutionary change. Those tensions tend to resolve themselves around a unity in support for the ideal of revolution, whilst suspending the uncertainty that surrounds its material content. It is in this sense that Chimni’s structural analysis can be placed alongside its decoupled agency, or critical projects find themselves able to settle with the ‘illumination’ provided by the occupation of precisely such incompatible elements.62 Such positions also stray from the conceptual history of revolution, and make it increasingly possible for the concept of ‘revolution’ to be substituted by ‘resistance’, or other near synonyms, because of their common aspiration of emancipation.63 This terminological shift becomes important, because to focus 61. Thus new social media can ‘enable’ the Egyptian revolution. (), and yet provide the basis for charging rioters in England with criminal offences (). The two kinds of activity do not have to be considered equivalent for the point to stand. In both instances the opportunities for social media sites to serve as nodes for information accumulation and marketing purposes give them direct exploitative potential. 62. See Buchanan’s concluding statements in Ruth Buchanan, ‘Writing Resistance into International Law’, 10 International Community Law Review (2008) at 454; equally see Nesiah’s summary, focusing on a process of ‘unveiling’, Nesiah, ‘Resistance’ supra note 46, at 920. 63. We can see the same process at work in Laclau’s choice of terminology in ‘Emancipations’. See the first chapter where, in many senses, he describes processes of revolution, but opts for ‘emancipation’. Ernesto Laclau, Emancipation(s) (Verso: London, 1996).

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on issues of resistance alone can excuse one from focusing on the consequences of that resistance, or the ways in which those acts form part of a complex whole that incorporates them. It becomes possible to write optimistically about situations that may, in the light of a different kind of structure-and-agency based analysis, be devoid of hope.

4. From Revolution to Resistance and the ‘Event’ In part, the above analysis reflects on the broader critical project in international law. The most immediate task of this scholarship is to challenge the self-aggrandizing narrative of mainstream liberal international legal theory: that international law is a bulwark against power and represents the best aspirations of a global community. This is a promise rooted in the idea that rule by law is more favourable to its supposed only alternative, rule by force (and the idea that there is a significant distinction between the two); a positive legal narrative born of liberal political philosophy, that power tempered by the limits of law and judicial review is the most favourable balance between effective and accountable government.64 Within this perspective, international legal institutions lack only the effective capacities of enforcement and review to circumvent the political machinations of the international arena and the victory of politics over law.65 Strengthening these institutions, and rendering them open to some form of review, then becomes the goal of liberally minded scholars.66 Against this unproblematic vision of law’s promise, many critical narratives incorporate the discomforting idea that ‘these very same liberal commitments also lead international lawyers to adhere to ideas and practices that function to reproduce the very hierarchies and exclusions that they ostensibly stand against.’67 In this vein, many authors writing within the Third World Approaches to International Law (TWAIL) school of thought ‘seek to disenchant international law by revealing its imperialist, gendered and racist underpinnings.’68 Often this critique is rooted historically, most powerfully through the close relationship between colonialism, imperialism and international law.69

64. Charles de Secondat Montesquieu, The Spirit of Laws (first published 1750) (Franklin Library: Franklin Center, Pa, 1984). 65. This is the basic argument put forward in Philippe Sands, Lawless World: Making and Breaking Global Rules (Penguin: London, 2006). 66. Ibid. This is the form of international law depicted for popular consumption – see China Miéville, ‘Multilateralism as Terror’, 18 Finnish Yearbook of International Law (2007) 63-92, for an excellent summary of this position. 67. Buchanan, ‘Writing Resistance’, supra note 62, at 446. 68. Ibid. 69. See Anthony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press, 2005).

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It is when it comes to an analysis of contemporary resistance, however, and especially when concepts of revolution are introduced, that this scholarship enters a paradox. Despite a wealth of critical analysis that aligns international law with an oppressive function, hope for resistance is still located in the liberal promise of international law;70 that same form of law that ‘serve[s] primarily the interests of the powerful’71 is to be turned into a bulwark against that same imbalance of power. Perhaps this is a concession to the inevitability of international law;72 a move made to avoid the perceived legal nihilism associated with more ‘radical’ accounts.73 But irrespective of the inevitability or otherwise of law,74 the position described above requires a particular kind of disjuncture between ‘structure’ and ‘agency’. If the law is criticised as being structurally hostile to (or even incompatible with) a particular objective, it requires a certain theoretical flexibility to then recommend one achieve that objective through legal means. This does not mean that, at very particular conjunctures, it would impossible to use existing legal mechanisms to aid the achievement of objectives hostile to the interests the law protects. But it does mean that strengthening the legal system itself is unlikely to be the best use of the resources of resistance. Not only this, but it also sets the limits of any particular struggle as ‘resistance’, as opposed to anything more substantive.

70. An example of this would be Chimni’s call to hold Transnational Corporations to account in the international sphere, a position which disavows the complicity of law in their immunity, and implies it is simply a lack of will that stands in opposition, see Chimni, ‘International Institutions’, supra note 45. 71. B. V. A. Röling, International Law in an Expanded World (Djambatan: Amsterdam, 1960) at 15. 72. There have been a variety of other attempts to understand this commitment to law. For recent examples see Knox, ‘Strategy and Tactics’, 21 Finnish Yearbook of International Law (2010), and Paavo Kotiaho ‘A Return to Koskenniemi; or the Disconcerting Co-Optation of Rupture’, 13 German Law Review (2012) 73. See China Miéville, Between Equal Rights (Brill: Leiden) at 319, poetically describing the ‘chaotic and bloody world around us’ as the rule of law. Aversions to Miéville’s provocative statement could be usefully compared to the charges of legal nihilism levelled at the Soviet Union during the period of Pashukanis’s writings (from which Miéville takes his theoretical starting point). But understanding such charges as politically (and legally) charged, and recognising that the Soviet Union operated in a relatively unexceptional way in its legal activities, it would seem unlikely that Miéville’s account is, in a theoretical sense, necessarily legally-nihilistic. Perhaps we should rather consider this in the light that Pashukanis himself describes, in which law is stripped of the ideological trappings in which liberal theory finds it necessary to dress it. For an excellent critical account of this aspect of Miéville’s work, see Rob Knox, ‘Marxism, International Law, and Political Strategy’, 22 Leiden Journal of International Law (2009) 413-436. 74. Which one could rephrase as the horizons of our political imagination – see Miéville, ‘Roundtable’, supra note 24, at 265.

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4.1. Event and Reality The theoretical move that enables both the contradiction and supports the terminological shift most effectively seems to locate itself in the transition to an alternative framework – that of the ‘event’, as opposed to that of revolution.75 ‘Event’ serves as a surrogate for revolution most commonly through the theoretical incorporation of Badiou’s Being and Event into international legal discourse, for example in the work of Bill Bowring.76 It is presumably what lies behind Buchanan’s notion that some of the contradictions within critical international legal discourse lead to the necessity of theorizing ‘the event’.77 However this transposition of a philosophical treatise to the realm of critical international law is problematic. Badiou described ‘the event’ as a ‘rupture which opens up truths’78. Although this is not the place to enter into discussion on the nature of truth, the use of Badiou’s conceptual framework, in relation to radical change, is revealing in the following sense. For Badiou ‘[a] truth is solely constituted by rupturing with the order which supports it, never as an effect of that order.’79 This has to be appreciated within the context of Badiou’s attack on relativism, such that in the construction of truth one has to turn toward something external to a ‘realist examination of the becoming of things’.80 In the context of Being and Event, this takes mathematical linguistic form, in that the dominating influence on any conception is its own defining criteria (the property of being ‘one’ is dominated by being ‘not-one’). It is only the ‘subject’ that is able to make this distinction, and therefore Badiou is often read as reasserting subjectivity as a political (among other categories) act.81 75. Buchanan, ‘Writing Resistance’, supra note 62, at 454. 76. See Bill Bowring, The Degradation of International Law? (Routledge-Cavendish: Oxford, 2008); Badiou has noted the increasing use of the ‘event’ by philosophers following Satre, the political component of which being ‘revolution’, see Badiou, ‘The Event In Deleuze’, in Parrhesia (Winter 2007) – available at (visited 10 October 2011). It is in this sense that we find the term and its connotative elements replacing ‘revolution’ and its conceptual history. As Badiou’s disagreements with Deleuze’s conception of the event demonstrate, there is more to the concept of the event than its political dimension. In many senses, it does severe damage to the very concept to attempt to reduce it in this manner – but as surrogate for revolution within international legal discourse it automatically takes on this reductive form (see the subsequent arguments in the main text above). 77. Buchanan, ‘Writing Resistance’, supra note 62, at 454. 78. Alain Badiou, Being and Event (Continuum: New York, 2005) see the introduction to the English translation, at xii. 79. Ibid. 80. Ibid. 81. See Alain Badiou, ‘One Divides Itself into Two’, in Sébastian Budgen, Stathis Kouvelakis and Slavoj Žižek (eds.) Lenin Reloaded: Toward a Politics of Truth (Duke University Press: Durham NC, 2007); Bowring, The Degradation (2008) at 120; and Jason Barker, Alain Badiou: a Critical Introduction (Pluto Press: London, 2002).

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However, irrespective of the no doubt immensely complex, nuanced and esoteric meanings that attach to the technical usage of both ‘Being’ and ‘Event’, when taken out of their specific context such terms take on more metaphorical connotations. It is then the case that opting for the language of the ‘event’ becomes an attempt to tap the potential of some unbounded sphere of possibility that surrounds the contemporary engagement with revolution discussed above. As a metaphor for the freedom of the individual, it comes perilously close to either a platitudinous libertarianism or a strained idealism. However, it would seem reasonable to give the theory sufficient credit as to be considered unsupportive of the kind of liberal mantra that claims individual circumstance as solely the product of some idealised conception of free choice. But then, without the internal meaning within its own particular discourse, the adoption of this position becomes a form of idealism. Structurally, this theoretical position supports the location of revolutionary potential outside of observable phenomena, and thus conceptions of action or agency are shifted away from materialist engagement. Its adoption can also be seen to serve the needs of a scholarship desiring an alternative route to that of ‘classical revolution’. However, the reference points for Being and Event are in no way commensurable with the political projects involved in the concept of revolution from which a turn is being made, yet the forum in which the engagement occurs remains the same. Only now instead of a particular engagement with historical knowledge and political experience, the coordinates for achieving emancipatory change are abstract and philosophical. In a sufficiently sympathetic light, the above theory could be seen to structure action, incorporating a ‘fidelity to the event’ into ones political outlook. The idea here would presumably be that a vision beyond the horizons of seeming possibility must frame political engagement, and it is this that enables the concept of revolution. Without this, political activity would be doomed to the replication of existing forms. Badiou’s televised appearances tend to back up this aspect, articulated as a call for new ways of thinking.82 This is also a position that has acquired a certain popular following; a feeling that is succinctly captured by Slavoj Žižek’s observation that it is easier to imagine the end of the world than the end of capitalism.83 And yet the adoption of the event into the kind of structure-agency based analysis covered in the preceding half of this paper, tends to overemphasize cerebral efforts (the opening up of new ideas), obscuring the material basis for our current condition, and the material obstacles to ideas of radical transformation. Although it is possible for this kind of idealism to be incorporated into an active 82. BBC interview with Alain Badiou by Stephen Sackur, HARDTalk, broadcast 24 March, 2009, available at (visited 10 October, 2011). 83. Slavoj Žižek ‘Don’t fall in love with yourselves’, transcript by Sarahana, Impose Magazine (October, 2011), available at (visited 30 October, 2011).

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political engagement, it is not a necessary product of the theory that underlies it; it is possible to assert some kind of fidelity to the ‘event’, yet theorising the event provides no necessary connection between itself and any material component. It is complete as a statement in itself, but one that on its own terms is more or less disabling. It is a theory that could possibly produce hope, as under its aegis something can at any moment spring from nothing. But it is a rather barren hope, as it also incorporates a vision of reality in which nothing resembling ‘the event’ can spring from anything open to observation and informed action. Considering Buchanan’s suggestion that the dilemmas of critical engagement have something to do with the theorisation of the event, we can then trace its effect upon legal discourse. In light of the preceding reflections, we might see many of the dilemmas of critical discourse as inherent in theorising the ‘event’. Whilst operating within a theory of the ‘event’ as outlined above, it becomes plausible to produce a theoretical critique of international law, which on conclusion places faith in that same oppressive regime. At any moment those oppressive structures may be destabilised, overthrown or entirely transformed by some unperceivable event. In fact, critiquing those structures, and yet maintaining some kind of faith in their redemptive transformation, could be read precisely as acting with ‘fidelity to the event’ – fidelity to the eventual victory of some transcendental truth. Perhaps then, theories of the event are themselves the problem. It is not the theory of the event that needs reworking, but a turn away from that conceptual framework to another. These issues become clearer as we understand the kind of consequences that stem from the use of particular terminology and conceptual frameworks to critique international law. Using ‘revolution’, ‘resistance’ or ‘event’ interchangeably fails to distinguish their differing content. As revolution is collapsed into a kind of resistance, and also infected with theories of ‘events’ over the conceptual history of revolution itself, any of the insights provided by that historical development are obscured.

5. Rejection of Modernism The use of this different terminology does enable the painting of a somewhat positive sheen onto an otherwise bleak analytical picture. But it would be disingenuous to claim that this shift in conceptual and theoretical framework simply serves a desire to discover some sliver of hope when immersed in studying the misery of the oppressed. Importantly, this scholarship rarely rests of the laurels of its suggested agency, or turns a blind eye to the contradictions and oppositions that haunt its conclusions. Perhaps one of its most unifying features would be precisely this occupation of an uncertain space. In this sense it is not so much a shift designed to overcome a contradiction, or to provide a new convincing para-

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digm from which to consider radical political change, but one that attempts to occupy those spaces of contradiction and resist any conclusion or incorporation. However, this shift in direction is not just about enabling the more comfortable occupation of paradoxical spaces. Rather, it seems to relate to a broader rejection of modernist ideals as somehow inherently corrupting; from the incorporation of a series of pervasive liberal accounts of the history of the twentieth century that link socialist aspirations and modernist methods with stifling authoritarian state rule.84 It is a narrative bolstered, no doubt, by the complex and at times apologetic relationship between socialist organisations in the industrialised West and ‘real existing socialism’, which oscillated between apology and condemnation.85 The effect is such that, in this light, attempts to create a body of knowledge, to create a disciplined and coherent position, are representative of the violation of free choice and thought. In this sense, the shift in meaning associated with revolution reflects the conditions of the contemporary historical moment, defined by a particular set of historical narratives that inform it. But it also stems from a particular set of methodological assumptions and particular relationship between critique and historiography. This takes shape in scepticism about the accuracy of modernist analytical descriptions in the current ‘post-modern’ environment. As the modern ‘globalised’ world is understood to become increasingly complex, plural and unknowable, classical analyses of structure and agency are seen to become outdated.86 Those modes of thinking are also the subject of criticism for eliding discontinuities and ruptures within their constructed narratives, such that the ‘critical’ engagement with history becomes one determined to avoid the same processes of ‘grand-narrative’ creation.87

5.1.Traumatic history and anti-modernism We can see this dual function in both the descriptions of the contemporary moment within critical scholarship, and the vision of the function of history that it adopts. Nesiah captures the first aspect by quoting David Scott’s description of the contemporary moment as haunted by the failures of socialist projects of the past.88 The present is seen as ‘post-Bandung’ (the first Asian-African international 84. Haynes and Wolfreys, History and Revolution, supra note 9, at 5, and see Ernst Nolte in the same volume. 85. Ibid., at 6-7. 86. Consider the shift to ‘biolife’, and the necessary changes in agency engendered by new structures in Michael Hardt and Antonio Negri, Empire (Harvard University Press: Cambridge, 2001). 87. As examples, see Upendra Baxi, ‘What May the “Third World” Expect from International Law?’, 27 (5) Third World Quarterly (2006) 713-725, and Karen Knop, Diversity and selfdetermination in international law (Cambridge University Press: Cambridge, 2002). 88. Nesiah, ‘Resistance’ supra note 46, at 920, referencing David Scott, Conscripts of Modernity the Tragedy of Colonial Enlightenment (Duke University Press, 2004).

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conference held in 1955, and considered by many to be a key moment in the construction of Third World solidarity), defined by the spectres of attempts to instigate a more egalitarian world economic system through the auspices of the New International Economic Order (NIEO), or the United Nations Conference on Trade and Development (UNCTAD) which became the focal point for development issues in the wake of formal decolonisation. This is a present further defined by the collapse of the Soviet Union, or the actualised socialist alternative to capitalism as a mode of production.89 It becomes a present moment that is, in many senses, defined by a sense that somehow the ‘end of history’ thesis, despite being rejected in a straightforward sense, nevertheless captured something profound about the condition of left-orientated intellectuals. Coupled with this effect of a history read as demonstrating ‘classical’ forms of revolution as being responsible for both the perceived failure of the socialist project, and for its authoritarian manifestations, we have a historiographical stance that is deeply hostile to the idea that broad-sweeping historical narratives carry interpretative weight. Indeed, much critical theory that attempts to challenge the confidence of the discipline does so by posing a direct challenge to the mainstream history of international law. As mentioned, this is the critical insight of much of TWAIL scholarship, but it is representative of a broader attempt to reverse the ‘turn to history’ within international law as being a method of developing the ‘science’ of the discipline itself.90 One aspect of such scholarship is to make a straightforward critique of the historical narrative itself, challenging disciplinary milestones like 1648, or the Euro-centric nature of its discourse. But more fundamentally this project confronts the idea of the ‘grand-narrative’ of international law itself. The critique starts from the insight that a history of international law, ‘if written in singular terms’, would have to make assumptions about the identity of participants, the aims of international law, and the ways in which such a narrative is expected to inform the present.91 Karen Knop notes that ‘no single grand narrative engages the range of identities visible in local women’s communications of concern’92, whilst Upendra Baxi notes that the Third World contribution to international law, including the vital addition of ‘peoples’, can only come about through pluralising and correcting a Western historical ‘grand’ narrative.93 In the construction of the 89. This is not, by any means, to endorse the Soviet Union as the embodiment of socialist ideals. 90. See L. F. L. Oppenheim, ‘The Science of International Law: Its Task and Method’, 2 (2) The American Journal of International Law (April, 1908) 313-356, also cited in Matt Craven, Introduction: International Law and Its Histories in Matthew Craven, Malgosia Fitzmaurice and Maria Bogiatzi (eds.), Time, History and International Law (Martinus Nijhoff: Leiden, 2007) at 1. 91. Craven, International Law and Its Histories, supra note 90, at 8. 92. Knop, Diversity and self-determination, supra note 87, at 328. 93. Baxi, ‘What May the ‘Third World’ Expect?’ supra note 87.

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old, stable identity of international law, in defining the subject and the discipline, ‘varied and opposing voices are, for the purposes of the narrative itself, silenced or pushed to one side.’94 This rejection of the grand-narrative as a corollary of critique combines with a broader theoretical position that reads the culture that comes with post-industrial society (suspending for a moment the question of whether or not this represents an extension of traditional conceptions of capitalism, or a new form of technocracy or bureaucracy) as involving a crisis of legitimation; a component of which is the collapse of the meta-narrative, although at the same time we encounter the multiplication of micro-narrative engagements.95 Within such a theoretical frame, history ‘appears to be no more than a random succession of chance events’.96

5.2. Empty Revolution and Modernism These factors combine to offer one explanation of why we encounter the particular engagement with structure and agency discussed in this paper, which as we can see is one that has a particularly problematic relationship to the concept of revolution. We can think about this critically in a series of ways. Firstly, we have the rather banal acknowledgement that a universal rejection of ‘grand-narrative’ history is in itself a meta-narrative par excellence. At the very least this involves the relegation of theory to the background of an otherwise esoteric selection of micro-historical narratives. The theory then rendered implicit is one which holds that these micro-narratives are un-connected; that to draw inferences, comparisons and conclusions between them is to do irrevocable damage to the individual narratives themselves, and furthermore to erect a false narrative of coherency – a narrative that either serves the purposes of the previous mainstream narrative (the grand-narrative of international law under criticism), or else attempts to switch one form of power and domination for another. The context for such a move, however, is a broader moment in which certainties (and narrative interpretations) continue to operate.97 Most especially within liberal political structures, which take as their defining elements the incorporation of plurality within a broader system of continuity. In this context, the favoured critical move of pluralising narratives does little to address the systematic nature of 94. Craven, International Law and Its Histories, supra note 90, at 8. 95. Francois Lyotard, The Postmodern Condition: A Report on Knowledge (University of Minnesota Press: Minneapolis, 1984). 96. Haynes and Wolfreys, History and Revolution, supra note 9, at 15. 97. Frederick Jameson’s reading of Lyotard is relevant in this respect, describing the same crisis of legitimation as the passage underground of the meta-narrative, its relocation within the social and individual subconscious, see Jameson’s introduction in Lyotard, The Post Modern Condition, supra note 95, at xii. In this context however, it would seem that the prevalence of very visible meta-narratives has to qualify Jameson’s formulation. The result being that the theoretical lenses of revolution and class offer greater insight.

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the repression or exclusion of such positions.98 It can also serve to overemphasize the contingency of the present.99 But in addition it serves to bolster the formal equality of individual-narrative expression within a regime that maintains the ‘material’ (in an admittedly abstract sense) inequality of both their penetration into and acceptance within mainstream accounts. Simply by rejecting such explanatory frameworks, the existing narratives do not vanish or lose their purchase. Ironically, the step away from ‘grand-narratives’ then concedes explanatory ground to an alternative account, one that renders contemporary models of liberal democracy as the culmination of a socio-political evolutionary process. The result is calamitous. The characterisation of the present moment as in the wake of a series of failed attempts to create various forms of actually existing socialism buys into a broader liberal narrative about the interpretation and meaning of the twentieth century. Hostility to ‘grand-narrative’ history in this way often prevents itself from providing effective counter-narratives. But it also fails to reflect the complexity of modernist thought more generally, and overemphasizes the extent to which the failure of these movements could be laid at the door of such modes of thought. Associating discipline and organisation with repression also enters the double-bind of locating abstract liberty within a set of conditions supposedly ruled only by ‘natural’ events, coupled with no persuasive account of the natural. Finally, in ruling out modernist methods as a necessary component of agency for change, we are left with a concept of revolution strangely emptied of its emancipatory content.

6. Revolution and Modernism The point is not to decide who has the most accurate reading of an historical epoch. It is to note that, on all sides of political and historical debate, revolution became a crucial concept, the content of which took on the particular flavour noted above. This is important in order to understand what characteristics are highlighted in critical discourse today, and their effect on such scholarship. As has already been noted, in such scholarship we find an emphasis on the spontaneous and almost primal nature of revolution as a powerful force that lurks beneath the surface. At times it may erupt through the chaotic and largely incomprehensible skin of the world and provide a challenge to power and oppression. The lodestone at the heart of the concept is still some kind of emancipatory promise. But among the crucial shifts in revolution noted above, in its role as a locomotive of history, 98. See Outi Korhonen’s general point that ‘the fact that there are more “players” on the entwined legal, political, economic and other fields does not mean that new “itineraries” are on the table.’ Outi Korhonen, International Law Situated: an analysis of the lawyer’s stance towards culture, history and community (Kluwer Law International: The Hague, 2000) at 279. 99. Susan Marks, ‘False Contingency’, 62 (1) Current Legal Problems (2009) 1-21.

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as a dominant theme of an historical age, and as a force at times to be combated with all the resources of a powerful military state, there is more than a recognition of spontaneous rupture. More than anything the concept calls up images of revolutionary parties organising and mobilizing for change. We find intellectual groups producing pamphlets and communicating ideas to a broader audience, attempting to form a body capable of challenging the forces they find oppressive. It is following the French Revolution that we encounter a wave of revolutionary events throughout Europe, and those same ideas that animate European Socialists before the First World War, and that contribute to the Bolshevik rise to power in Russia. It is not only in such a prominent event as the October Revolution, but in the Paris Commune and the defeats of 1848 that the concept and reality of revolution take shape. And in this sense we are not witnessing some abstract and mystical force, but the organisation of groups of people in pursuit of a political ideal, and in many instances their crushing defeat. These latter characteristics of revolution this paper argues as intimately connected to modernism. They depend on a faith in scientific knowledge and method, and in the ability to understand society and organise around that knowledge to effect change. Just as modernism represents a secularising force, so too revolution took what were often religious or transcendental ideals and transposed them to the world of human action and achievability. If we step back from the caricatured narrative of historical necessity and economic determinism often associated with Marxism, and instead place this work within the context of its time and in the light of the developing idea of revolution, we are presented precisely with the confluence of these ideas. Putting aside the reading of a path to socialism as mechanical or inevitable, we can understand this as a process of the analysis of a given structure (capitalism); the location of trends, and systematic function (of capital); and the situation of agency for revolutionary change within that system - the proletariat of the Communist Manifesto.100 In this sense, and as a political project, it was this secularisation of eschatological and utopian socialism that defined the Marxist shift. How this worked out in practice, and at different points at different times, was nevertheless a complex process, without easy doctrinaire answers - the stylised ‘blueprint’ of revolution (raise the proletariat, capture the state, smash the state, transit to socialism) was always a contextual one.101 In a sense the caricature serves an important purpose, one closely linked to that of a historiography averse to its own vision of ‘grand narratives’. Within the context of a political struggle, the process of denying intelligibility, or of focusing on the minutiae of historical study in order to refute broader interpretative 100. Karl Marx and Frederick Engels, The Communist Manifesto, supra note 26. 101. Marx’s own views on this kind of dogmatic theoretical approach are made explicit in his Critique of the Gotha Programme, see Karl Marx, Marx/Engels Selected Works, Volume Three (Progress Publishers: Moscow, 1970) at 13-30.

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work, has much in common with caricaturing opposing scholarship as something wooden, overly simplistic, and blind to detailed reality. Perhaps then we should read this aversion to grand narratives, or to one aspect of the concept of revolution, as stemming rather from the consequences of such a position. Most especially for those scholars who feel an attachment to the political left, it is the uncomfortable relationship between precisely the above legacy of revolution and the various tyrannies associated with ‘actually existing socialism’, that underpins an aversion both to the ideas, and to scholarship associated with them. This is not to say that no scholars on either side of the debate made themselves easy targets through over-enthusiasm, but it is an important element in characterising a world as ‘post-Bandung’ and in which resistance occurs in an abyss. This is a world scarred by the notion that the one inevitably led to the other. ‘Organisation’ becomes associated with lack of individual expression; the process of coalescing around a single idea to achieve an aim becomes repression of free thought; and the idea that dissent may be unproductive at various conjunctures, automatically results in secret police and the silent disappearance of the opposition in the dark of night. Whether or not a liberal democracy riven with social inequality, poverty, and the massive (if subconscious) coercion of the population around various ideas represents any closer of an approximation to these ideals of freedom is beside the point. What is worthy of note is the aversion to these attributes of revolution, and the consequences.

6.1. Artificial oppositions: spontaneity and organisation One way in which this aversion manifests itself is through the proposed opposition between Lenin and Luxemburg.102 Many of Luxemburg’s disagreements with Lenin centred on how the principles of organisation were to manifest within the party structures. In ‘Organisational Questions of the Russian Social Democracy’, Luxemburg was writing against Lenin’s call for greater centralisation of party control for the Russian Social Democracy.103 She focused on the unique nature of social democracy as stemming from the dialectic of class struggle, stressing the autonomy of social action, the spontaneity of events and the gradual construction of class consciousness. For Luxemburg, Lenin’s vision was drawn from an understanding of factory organisation and discipline, whereas she felt it was essential that the class struggle produced an autonomous will in contrast to this – avoiding recreating the subordinate position (and the division between manual, creative and intellectual production) of the oppressed worker. It is relatively easy 102. For an exploration of this, see Paul Mattick, Anti-Bolshevik Communism (Merlin Press, 1978), available online at (visited 10 October 2011). 103. Printed as ‘Marxism or Leninism’ in Rosa Luxemburg, Reform or Revolution and Other Writings (Dover Publications, 2006).

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to read Luxemburg as the proponent of a freer, more spontaneous socialist party, attempting to stress a democratic, bottom-up approach against Lenin’s harsher party discipline.104 This is certainly James Scott’s interpretation, describing that, under Lenin, the role of the workers was to ‘follow that part of the blueprint allotted to them in the confidence that the architects of revolution know what they are doing.’105 Scott goes on to state that [i]t is surely a great paradox of ‘where to begin?’ that Lenin takes a subject – promoting revolution – that is inseparable from popular anger, violence, and the determination of new political ends and transforms it into a discourse on technical specialization, hierarchy, and the efficient and predictable organization of means. Politics miraculously disappears from within the revolutionary ranks and is left to the elite of the vanguard party, much as industrial engineers might discuss, among themselves, how to lay out a factory floor.106

Scott’s interpretation is clearly that, for Lenin, the spontaneous forces of mass action, or proletarian struggle, will never succeed against the force of capital and bourgeois ideology without the strict guidance and knowledge of the vanguard party – the danger always being that, without iron control, the great ‘force’ of the masses may at any moment disband and wander off. We can see in this, in part, an allegiance to a notion of freedom and spontaneity. Scott juxtaposes Lenin with Luxemburg to stress her faith ‘in the autonomous creativity of the working class’.107 But the broader structure of Scott’s argument is one pitted against the certainties of modernist knowledge. Lenin’s planning and organisation is aligned with a whole set of modernist projects that involve the attempt to study a situation and provide some form of scientifically rigorous solution to it, a solution which, in the process, kills any of the natural and spontaneous growth that is essential to the vibrancy of social life. In challenging this opposition, the point is not to claim that there have been no wrongheaded attempts to analyse a situation and provide a remedy that proves damaging in the end. Scott’s analysis contains a host of persuasive arguments in relation to the confidence and blindness involved in large scale agricultural projects in both the Soviet Union and the United States in the nineteen twenties and thirties. He goes on to draw our attention to the recurrence of this in colonial agriculture, where metropolitan ideas of horticulture were forcibly applied to local conditions irrespective of indigenous knowledge, to disastrous effect. But 104. Or to go further and read Luxemburg as tapping into the feminine nature of things, as opposed to Lenin’s sterile and constricted masculinity, Rose, ‘What more could we want’ supra note 42. 105. James Scott, Seeing Like a State - How Certain Schemes to Improve the Human Condition Have Failed (Yale University Press, 1999) at 152. 106. Ibid. 107. Ibid., at 168.

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the acquisition of knowledge is not the immediate cause of such activity. And in the realm of revolutionary politics, to swing too far away from Lenin’s principles of organisation and planning, of a certain level of centralised discipline and purpose, and embrace a faith in spontaneity and impulse, fails to understand the context in which Lenin was operating – and indeed the context that the concept of revolution forces to the forefront. This context is a simple one. Revolutions involve the overthrow of whatever the current order may be. And many of them fail. Some then drift (or are brushed) into the annals of history without the label of revolution precisely because of that fact. The crux of Luxemburg’s own argument against Lenin in the piece cited above rests on an analysis of the concrete historical circumstances facing the socialist movement in Russia (and the broader international) at the time. The autonomous creative process (the historical trajectory described by Marx) was not underway in Russia at the time in which Luxemburg was writing. Socialist ‘agitation’ in this regard (consciousness building, shaping the revolutionary proletariat) was bound to be an artificial process. But this of course speaks to the heart of historical materialism as a methodology, and the heart of scientific socialism. Understanding an inherent, trajectory generating, logic of capital that will bring about certain conditions places one into an awkward relationship with regards human agency, most especially ‘counter-revolutionary’ agency. But it is not a relationship that forces a rigid dichotomy between the causes of a revolution on the one hand, and the preparatory work an organised section of the population may do on the other. Luxemburg and Lenin’s positions are in fact far closer than such comparative work as Scott’s implies, and this is precisely operative in the ability of the two scholars to engage in productive debate within the grounds of a shared socialist project. Lenin concludes ‘where to begin?’ with the following statement, intended to avoid ‘possible misunderstanding’. We have spoken continuously of systematic, planned preparation, yet it is by no means our intention to imply that the autocracy can be overthrown only by a regular siege or by organised assault. Such a view would be absurd and doctrinaire. On the contrary, it is quite possible, and historically much more probable, that the autocracy will collapse under the impact of one of the spontaneous outbursts or unforeseen political complications which constantly threaten it from all sides. But no political party that wishes to avoid adventurous gambles can base its activities on the anticipation of such outbursts and complications. We must go our own way, and we must steadfastly carry on our regular work, and the less our reliance on the unexpected, the less the chance of our being caught unawares by any “historic turns”.108 108. Lenin, “Where to Begin” (1901) at 24, in V. I. Lenin, Collected Works (4th English Edition, Foreign Languages Publishing House: Moscow, 1961). I am indebted to Rob Knox for drawing my attention to this quote.

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Lenin was doing more than giving a nod to the proponents of spontaneity. The point is that as a basis for political action, for organisation and mobilization, a hope for some mystical confluence of spontaneous factors is not an appropriate or realistic banner around which to rally. Moreover, it is a recipe for failure. The ‘historic turns’ referenced in the passage above, although just as much a part of the stream of history as a spontaneous revolutionary upsurge may be, take the form of concrete manifestations. Raymond Williams puts this most succinctly. His point is simple: that the ‘transformation of society has an enemy. Not just an electoral enemy or traditional enemy, but a hostile and organised social formation which is actively trying to defeat and destroy you.’109

7. Conclusion William’s point may seem overly dramatic. But really it is at the heart of the concept of revolution; the corollary of every aspiration invoked by that word. This is something that occurs both structurally, within the ‘mechanics’ of social transformation, and actively, within the acts and intentions of individuals. The opposition of a social formation is of a different order to meeting an army on the battlefield. But in as much as any army is constituted of individuals, social forces also take their material shape. The awareness of this position haunts those analyses like Scott’s, which take issue with what can be a caricature of Lenin. Fully comprehending the stakes of revolution, especially the kind socialists fought for following the French Revolution, does not bolster faith in the ultimate success of spontaneous forces of mass action or proletarian struggle. And even in the event that it is precisely this which prevails in the end, it is not a principle around which politics can be conducted. Certainly not in the face of the ‘hostile social formation’ that confronts the movement. That formation has no qualms about seeing the world as ‘comprehensible’ in certain ways, and acting accordingly. In as much as a ‘globalizing’ world may present a confusing and amorphous mass to certain types of analysis, in as much as this may seem to undermine ‘old’ structures of power like the state, even so far as ‘market forces’ can themselves begin to seem somewhat chaotic and unmanageable, these continue to remain operative principles on which substantive political organisation is based. This is perhaps the most debilitating aspect of the retreat into mysticism that comes with adopting conceptual frameworks like that of the ‘event’. In some ways it can be read as a reversal of the secular turn of the modern era, relocating the emancipatory ideals taken from religious eschatology back into their idealist context.110 It is not simply a reversal, or a rejection, of modernism. It is reversal 109. Raymond Williams, Resources of Hope (Verso: London, 1989) at 71. 110. For the relationship between religious sentimentality and revolution’s secularisation of its ide-

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and rejection of modernism in the face of the dominant influence of the modern era; of late capitalism in all its most virulent forms. In this sense it is a capitulation to that material reality, and abdication of responsibility on a vast scale. It is vastly easier to hope for an event. It is far less so to recognise the complexity of the structures that require analysis, and the frustration of developing organised opposition in pursuit of an alternative. All of this is confronted with both the structural dynamic of capital and its socially invested agents on a vast scale – an opposition that is very far from its own retreat into mysticism. It is worth noting that we could qualify this by reading the supplication before the vagaries of ‘market forces’ as a form of idolatry itself. But to do so fails to account for the level of agency assumed in the engagement with the market, and the linkages between the social groups that benefit whichever way the economic pendulum swings. It also would serve to help alleviate some of the discomfort that should be present in the shift toward a mystical mindset involved in some contemporary scholarship, and would therefore be counter-productive. The link between structure and agency that has come adrift in the loss of revolution’s conceptual history was essential in both grounding critique, but also in forcing comparative analysis between the forces in favour of one historical trajectory, and those in favour of another. In terms of the Arab Spring, such analysis cautions us against the use of the language of revolution when we consider the kinds of structural continuity present in the international system, and especially the position of international law within that. Engagement in support of revolutionary aspirations has to connect the analysis of agency with structural analysis that incorporates international law. It is only in the absence of this that the unqualified advocacies of non-violent means, or non-party-based, non-hierarchical forms, become plausible suggestions. It is also only really in recognising the absence of this link that we can align Allott’s kind of revolutionary agency with that of TWAIL scholars. Although the kind of idealism present in Allott’s suggestion that the mental capacities of the middle class present revolutionary capacity is more extreme than Chimni’s suggestion of tactical intervention into city life, through the lens put forward here they share common ground. It is precisely that commonality that should push for a reassessment of critical scholarship in international law. To reiterate, the point here is not to berate the kind of international legal scholarship discussed earlier. But to stress that, in as much as such scholarship pertains to speak to the causes of the oppressed, the conceptual history of revolution offers important lessons. Most importantly, that contemporary engagement with the concept of revolution tends to embrace only a part of its complete meaning, and that in doing so the emancipatory potential contained within is als, see Daniel Bensaïd, Revolutions: Great and Still and Silent in Haynes and Wolfreys (eds.) History and Revolution, supra note 9.

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lost. It is clear that the many defeats and setbacks of the twentieth century leave much left-orientated academia with a complex relationship to some of the guiding principles of the revolutionary movements of this period. To then occupy a ‘post-Bandung abyss’ as a result, is not a productive position. Furthermore, to conceive of the potential for radical change (or revolution), as being located purely in either spontaneous outbreaks, or anything that happens to constitute itself as the antithesis to ‘modes of power’, in an attempt to avoid the pitfalls of either modernist certainty or the corruption of power, does no justice to the concept of revolution. It reverts to a prior utopian and idealist concept of political change that, confronted with the message of revolution so well encapsulated by Williams, looks sadly, overly, optimistic.

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Disobeying the Security Council: Countermeasures against Wrongful Sanctions by Antonios Tzanakopoulos. Oxford University Press, 2011. 288 pp. ISBN 978–0–19–960076–2 (hardback) One of the great preoccupations of international legal scholarship over the last 20 years has been how to hold an increasingly active and assertive Security Council (‘Council’) to account. Innumerable reams of paper have been devoted to exploring this subject but minimal progress has been achieved. The vast majority of international lawyers have focussed their efforts on determining how the Council’s actions might be subject to judicial review.1 Despite their efforts, however, the prospect of robust judicial review of the Council has remained, for the most part, elusive. In Disobeying the Security Council, Antonios Tzanakopoulos seeks to shift the debate and examine the issue of Security Council accountability through a new lens, that of international responsibility. Tzanakopoulos’ innovative and intelligent attempt to advance this previously gridlocked area of law is a very welcome addition to the field. Tzanakopoulos advances a twofold thesis. First, in a decentralised system with no formal process of judicial review, it is up to states to take action against the Council when it breaches international law (at 157). Second, such action should be understood through the framework of international responsibility and consequently classified as a countermeasure (at 157–200). While the first limb of Tzanakopoulos’ argument is a widely accepted proposition, the second limb represents a departure from traditional understandings of state self-help against the Council. To date, when a state has refused to comply with illegal Security Council resolutions most international lawyers have justified the state’s refusal by contending that Article 25 of the UN Charter only requires states to enact resolutions that comply with the UN Charter; resolutions that contravene the UN Charter are void and do not command compliance (at 157–158). Tzanakopoulos rejects this interpretation of Article 25 of the UN Charter arguing that the meaning of the Article has always been unclear and subject to the debate. He asserts that a constitutional system, such as that established by the UN Charter, requires acts to be complied with regardless of their legality (at 165–166). In place of the traditional justification for self-help against the Charter, he suggests the imposition of the framework of international responsibility. In advocating the application of international responsibility to the Council’s Article 41 actions and the classification of states’ responses to such actions as countermeasures, Tzanakopoulos has to establish multiple elements. First, he has to ascertain that activity flowing from Article 41 of the UN Charter can be attributed to the United Nations (at 17–53). Second, he has to determine what international legal obligations the Council is bound by when it acts pursuant to Article 41 of the UN Charter (at 54–84). Third, 1.

See, e.g., José Alvarez, ‘Judging the Security Council’, 90 American Journal of International Law (1996) 1–39; Erika de Wet, Chapter VII Powers of the United Nations Security Council (Hart Publishing: Oxford, 2004); W. Michael Reisman, ‘The Constitutional Crisis in the United Nations’, 87 American Journal of International Law (1993) 83–100; Thomas M. Franck, ‘The “Powers of Appreciation”: Who Is the Ultimate Guardian of UN Legality?’, 86 American Journal of International Law (1992) 519–523; Bernd Martenczuk, ‘The Security Council, the International Court and Judicial Review: What Lessons from Lockerbie?’, 10 European Journal of International Law (1999) 517–547.

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he must prove that states have the power of auto-determination to assess the legality of Security Council action under Article 41 (at 112–137). Fourth, he has to show what the Council’s obligations under the international responsibility paradigm are (for example, cessation, reparation and satisfaction) (at 141–153). Fifth, and finally, he must demonstrate that states’ disobedience of Council action under Article 41 satisfies the criteria of countermeasures (at 154–220). One of the main challenges that Tzanakopoulos faces in applying the international responsibility paradigm to the Council’s Article 41 actions is that each of these elements is complex and the reasoning that underpins each is contentious and open to attack. Indeed Erika de Wet, Matthew Happold and Marko Milanović have all expressed concern at the thin foundations on which some of Tzanakopoulos’ reasoning rests.2 For example, they take issue with the classification of a state’s non-compliance with a Security Council resolution as a countermeasure.3 In order for a state’s refusal to comply with a Security Council resolution to be understood as a countermeasure, the state’s refusal must be illegal (at 154). Tzanakopoulos’ assertion that refusals to comply with Security Council decisions can be understood as illegal relies on his rejection of the traditional interpretation of Article 25 of the UN Charter (as discussed above), the contention that the Charter does not specify that an illegal Security Council decision is void (at 164–166), and the view that international legal principles propounded by the International Court of Justice suggest that states must follow any decision validly adopted by an international organisation regardless of its legality (166–174). This reasoning allows Tzanakopoulos to conclude that it is illegal for a state not to follow a validly adopted, but illegal, Security Council decision. While de Wet, Happold and Milanović acknowledge that this argument is creative and intellectually stimulating, they express concerns that it relies on a disputable reading of Article 25 of the UN Charter4 and debatable interpretations of International Court of Justice jurisprudence.5 The lack of robust legal foundations for every element in Tzanakopoulos’ argument troubles me less than it has troubled de Wet, Happold and Milanović. While some elements of his arguments do rest on disputable grounds, he has succeeded in proving that, under certain readings of international law, it is at least possible to apply the paradigm of international responsibility to the Security Council and to view states’ disobedience of Council actions as countermeasures. Of greater concern is the lack of a thorough examination of the rationales for seeking to understand states’ disobedience of Council actions as countermeasures. Almost all interpretations of the law surrounding the Security Council are fraught with legal difficulties. In light of this, where a plausible interpreta2.

3. 4. 5.

Erika de Wet, ‘Debating Disobeying the Security Council – is it a matter of “a rose by any other name would smell as sweet”?’, EJIL:Talk! (25 May 2011) ; Matthew Happold, ‘Some Remarks on Disobeying the Security Council’, EJIL:Talk! (27 May 2011) ; Marko Milanović, ‘A Comment on Disobeying the Security Council’, EJIL:Talk! (26 May 2011) . References to online sources are accurate as of 21 May 2012. Ibid. de Wet, ‘Debating Disobeying the Security Council’, supra note 2. Milanović, ‘A Comment on Disobeying the Security Council’, supra note 2.

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tion arises it is useful to consider the legal, policy or theoretical grounds for preferring that interpretation over others. At various points in his work, Tzanakopoulos does highlight some of the advantages of his approach to holding the Council to account over the alternative of simply holding that states have no obligation to comply with illegal acts of the Council. For the most part, however, these highlights are relatively brief asides that have not been fully explored or presented together to build a compelling case. In a discussion on EJIL:Talk! Tzanakopoulos elaborates on the rationales that are implicit in his book and seeks to develop them.6 However, even here there is a need to probe and question the grounds he identifies further. The remainder of this review turns to consider some of the main rationales advanced by Tzanakopoulos in both his book and the discussion on EJIL:Talk! The most compelling reason that Tzanakopoulos offers for understanding self-help against the Security Council as a countermeasure instead of a response to a void resolution is that it provides a more legally coherent explanation of state behaviour in responding to Council action.7 The traditional understanding of self-help against the Council – that under Article 25 of the UN Charter states do not have to abide by resolutions that contravene the UN Charter – does not explain why states do not have to comply with Security Council resolutions that breach general international law (unless one believes that the UN Charter imposes general international law obligations on the Council via Articles 1(1) and 24(2) of the Charter).8 In contrast, Tzanakopoulos’ theory of countermeasures does allow states to respond to Security Council contraventions of both the UN Charter and general international law. The potential weakness of this rationale is that it requires the reader to accept Tzanakopoulos’ theory that the Council is bound by general international law not because of any provision in the Charter but because of general international law principles (at 72–74). Providing this idea is accepted, however, the theory of countermeasures does appear to offer the field of Security Council disobedience more coherence than the traditional theory. Other rationales advanced by Tzanakopoulos, however, are more problematic. For example, Tzanakopoulos asserts that since countermeasures are subject to greater regulation, conceiving state disobedience of the Security Council in that way will discourage states from resorting to disobedience for disingenuous reasons.9 Specifically, he explains that states can only apply countermeasures if they provide notification of their intentions and offer to negotiate (at 186). While the idea of subjecting state disobedience to greater regulation is prima facie attractive, it suffers from several shortcomings. First, there are some forms of disobedience where the requirements of notification and negotiation are impossible. For example, where a domestic court makes a decision that a Security Council resolution, or its domestic implementing measure, breaches international law, it will not be in a position either to provide notice of its intention to 6. 7. 8. 9.

Antonios Tzanakopoulos, ‘Disobeying the Security Council – Some Responses’, EJIL: Talk! (30 May 2011) . Ibid. Ibid. While Tzanakopoulos discusses the procedural requirements of countermeasures in his book, he does not make an explicit argument about their virtues in the book itself. He does, however, develop such an argument in his post on EJIL:Talk! See Tzanakopoulos, ‘Disobeying the Security Council’, supra note 6.

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find against the Council or to negotiate with the Council (at 196–197). Tzanakopoulos suggests that this is of little import as the rules surrounding countermeasures allow for the requirements of notification and negotiation to be dispensed with in certain situations (at 197). It is difficult to see, however, how the decisions of domestic courts would fall within the existing exceptions as the situations referred to in the rules on international responsibility revolve around the concept of ‘urgency’.10 Second, in circumstances when it might be appropriate for states to provide notice and enter into negotiations with the Council – for example, when the executive arms of states take action – two problems arise. The first is that Tzanakopoulos’ evidence suggests that the procedural requirements mandated by the countermeasures approach are already adhered to under the traditional approach to state-help against the Council (at 186–187).11 Such evidence casts doubt on the need for the imposition of the countermeasures framework. The second problem with executive arms of states taking action against the Council is that Tzanakopoulos’ research suggests that the extent to which the Council will respect and respond to the procedural requirements of notification and negotiation is highly questionable (at 186–187). Indeed where states have attempted to negotiate with the Council over Article 41 measures, their entreaties have fallen on deaf ears. The fact that the procedural requirements of countermeasures do not sit easily with all forms of Council disobedience; that, where possible, the procedural requirements are already satisfied under the traditional approach to self-help against the Council; and that the impact of procedural requirements in this area of the law is minimal at best, raises doubts about the benefits to be gained from understanding disobedience of the Council as a countermeasure for its procedural restrictions. A further benefit that Tzanakopoulos claims countermeasures provide is that they have to be proportionate but not reciprocal.12 This has two consequences. First, states have to determine whether disobeying an illegal Security Council resolution is proportionate to the injury caused by that resolution. Second, states may choose to take action against the Council, other than disobeying illegal resolutions, providing it is proportionate to the injury caused. For example, they may choose to withhold financial contributions from the United Nations (at 191–192). The extent to which these consequences are desirable is questionable. Proportionality tests are notoriously difficult to delineate and apply.13 Each area of international law approaches the principle of proportionality differently and each area of international law has struggled with the complexities of applying the principle.14 The application of 10. Articles on Responsibility for Internationally Wrongful Acts of States, UN Doc. A/56/10, 2(2) Yearbook of the International Law Commission (2001), Article 52(2); Draft Articles on the Responsibility of International Organisations, UN Doc. A/64/10 (2009), Article 54(2). 11. For example, as Tzanakopoulos himself explains, before the Organisation of African Unity refused to comply with sanctions the Council had mandated against Libya, it provided notification and attempted to negotiate with the Council despite the fact it did not perceive its actions as countermeasures. 12. Tzanakopoulos discusses the requirement of proportionality at 186–187 in his book and the availability of other countermeasures at 191–198 but only explicitly discusses the benefits of these attributes in his post on EJIL:Talk! See Tzanakopoulos, ‘Disobeying the Security Council’, supra note 6. 13. See, e.g., Thomas M. Franck, ‘On Proportionality of Countermeasures in International Law’, 102 American Journal of International Law (2008) 715–767. 14. Ibid. See also Elena Katselli Proukaki, The Problem of Enforcement in International Law: Countermeasures,

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proportionality to state self-help against the Council is unlikely to be immune from these complexities and uncertainties. In fact the problem with the indeterminacy of the concept of proportionality is likely to be heightened in the case of countermeasures against the Security Council as there will rarely be an impartial, third party to adjudicate the matter. In other areas of law, such as trade law and international humanitarian law, cases before judicial tribunals have enabled certain understandings of the term proportionality to be developed over time. The prospect of this occurring for actions taken against the Security Council, however, is negligible. In light of these complexities it is questionable how much will be gained from subjecting states’ decisions not to comply with the Council’s illegal decisions to such a test. There is potentially more use in allowing states to take proportionate measures other than refusing to implement illegal resolutions. For example, there may be times when a state refusing to implement an illegal Security Council resolution has very little impact on the Council and more action is required to entice the Council to remedy the breach of international law. In reality, however, there are very few measures other than disobedience that states are likely to be able to take and the application of the proportionality test in these circumstances will be even more challenging. It is, for example, far from self-evident how much money a state should be entitled to withhold from the UN for a Security Council resolution that breaches the human rights of certain individuals. This is not to say that there is no place for a proportionality test in regulating self-help against the Council, but there is a need for the consequences of adopting such a test to be further explored. It is apparent from the above discussion that that viewing state responses to illegal Security Council activity as countermeasures is not without virtue. It has the potential to provide the area with a coherent theoretical framework and there are certain consequences that flow form the institution of countermeasures that offer potential benefits to the field. There are, however, also numerous elements of countermeasures that do little to enhance the functioning of the international system and in some respects complicate it further. It is too early in the life of this area of scholarship to make a call as to the ultimate utility of employing international responsibility and countermeasures to understand states disobeying the Council. What can be concluded is that Tzanakopoulos has placed a challenging and valuable framework for examining this area of the law on the international stage and it is now necessary to explore the implications of this framework in more detail. Anna Hood University of Melbourne

the Non-injured State and the Idea of International Community (Routledge: London, 2010).

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An Axiom of Military Law: Applicability of National Criminal Law to Military Personnel and Associated Civilians Abroad* Rain Liivoja Let me start by telling a story, an old one but an illustrative one. In 1961, a US military policeman by the name of Hans Puhl was deployed with his unit to West Berlin. For Puhl, this was, in a sense, a return home. He had been born in Bremerhaven, Northern Germany, and emigrated to the US as a child. He had become a permanent US resident, retaining his German nationality, and joined the US Army after having turned 18. He was then given training and deployed to Europe. In 1964, Puhl attained considerable fame by rescuing an East German who was fleeing to West Berlin and was fired upon by the East German border guards. But a few years later, Puhl came under suspicion of having molested several German children. One might expect that he was charged with an offence under German law. But that was not the case, as German authorities did not want to hear anything about the matter – quite possibly because of the embarrassment that would have been caused by a public trial of a decorated hero. Instead, Puhl was quietly brought before a US general court-martial – coincidentally convened at Bremerhaven, Puhl’s home town. He pled guilty to 12 counts of lewd and lascivious conduct with a minor. He was convicted and sentenced to a dishonourable discharge and seven years’ imprisonment (subsequently reduced to three years), and sent to suffer his punishment at Fort Leavenworth Disciplinary Barracks, Kansas. What exactly is going on here? Isn’t criminal law supposed to be territorial? How come did US law apply, and the competence of US military courts reach, a German national committing offences against other German nationals in Germany? * Literature provides part of the answer. There exists a considerable amount of material on the legal status of armed forces abroad. In particular, there was a flurry of academic activity on the topic during and immediately after the Second World War in connection with the Allied forces staying on each other’s territory (including forces of several exile governments in Britain). Also, there was a significant amount of work done in this field in the 1950s and 1960s in conjunction with the permanent stationing of Allied forces in many countries, either within the framework of NATO or Warsaw Part, or as a result of bilateral arrangements.1 More recently, there has been extensive discussion of the privileges and immunities of peacekeeping operations and other multinational forces, such as those deployed in Iraq and Afghanistan. * 1.

Lectio praecursoria, held at the public examination of the doctoral dissertation at the University of Helsinki, 1 July 2011. Professor Eyal Benvenisti from Tel Aviv University acted as opponent. See, in particular, Serge Lazareff, Status of Military Forces under Current International Law (Sijthoff: Leyden, 1971). See also Roland J. Stanger, Criminal Jurisdiction over Visiting Armed Forces (Government Printing Office: Washington, DC, 1965).

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However, the vast majority of this scholarship takes the perspective of the state that the forces are visiting – the host State. There are many insightful papers and encyclopaedic books on the immunities of friendly foreign forces from host state legal process. But there has been fairly little discussion of the reach of the law of the sending state. Why is that? From a domestic viewpoint – in particular, from military disciplinary law perspective – this application of law to soldiers is almost too obvious to spell out. After all, if a soldier stationed in a foreign country goes ‘absent without leave’ (AWOL), what State, if not the sending State, should have the possibility to reprimand her? In one of the leading articles on the status of visiting forces, published more than half a century old, G. P. Barton observed that ‘It is an axiom of military law that the members of the armed forces of a state are subject to that law wherever they may be.’2 (This is, of where, the thesis got its title.) Yet the matter is much less axiomatic when it comes to off-duty acts that have little or nothing to do with the person’s military status – as was the case with Private Puhl. Moreover, in some states, national law not only extends to soldiers abroad but also to various categories civilians that serve with or accompany the armed forces overseas. These persons, who I call ‘associated civilians’, include civil servants and employees of companies providing services to the armed forces. International law, on the other hand, has largely neglected the application of national law to the armed forces as an object of enquiry, or at most regarded it worthy of a footnote when discussing the application of criminal law to the acts of nationals abroad. The immediate difficulty here, as illustrated by the Puhl case, is that soldiers need not be nationals of the state that they serve. The US Armed Forces allows permanent residents to enlist and indeed uses the potential grant of nationality as an incentive for completing a period of military service. Also, some armed forces in the world actively recruit foreigners – I probably only need to mention the French Foreign Legion to make that point. On top of that, associated civilians – such as private contractors – certainly need not be nationals of the state in whose interests they work. In fact, in the conflicts in Iraq and Afghanistan the vast majority of US military contractors have been non-US-nationals. So, given that soldiers and associated civilians cannot simply be lumped together with nationals, how is the extraterritorial extension of national law over them compatible with international law? This is the central question on this thesis. * But this involves a preliminary question: How does international law regulate the ambit of domestic law generally? Here, the inevitable starting point is the case of the SS Lotus, decided by the Permanent Court of International Justice (PCIJ) in 1927.3 At the core of the case was a maritime collision resulting from what one commentator has described as ‘an incompetent Frenchman misnavigating the Aegean’.4 In short, a French ship and a Turkish ship 2. 3. 4.

G. P. Barton, ‘Foreign Armed Forces: Immunity from Supervisory Jurisdiction’, 26 British Year Book of International Law (1949) 380-413, at 380. The SS “Lotus” (France/Turkey), PCIJ Publications Ser. A, No. 10 (1927), at 18–19. Roger S. Clark, ‘The Crime of Aggression: From the trial of Takashi Sakai in August 1946 to the Kampala Review Conference on the ICC in 2010’, Public Lecture (Asia Pacific Centre for Military Law, Melbourne Law School, 14 October 2010); personal communication (23 June 2011).

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collided on the high seas; the Turkish vessel sank with considerable loss of life. Upon arriving in Constantinople, the officer of the watch of the French ship was prosecuted for manslaughter. France and Turkey turned to the PCIJ to resolve the question whether Turkish law purporting to criminalise the French sailor’s conduct was compatible with international law. In a notable obiter dictum, the court said: Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion, which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable.5

This language has far-reaching implications. It suggests that there is a presumptive freedom to extend national criminal law to anyone’s behaviour anywhere in the world, and that this freedom is only limited by specific prohibitions. Many studies of state jurisdiction mention the Lotus case and then somehow ignore its implications. If Lotus is taken seriously, the question ‘when does international law permit states to extend their law abroad?’ becomes completely misplaced. I opted to deal with Lotus in detail. And as far as I can tell, the Court misspoke. I advance several arguments to show that in order to extend national law and the competence of courts to behaviour abroad, a state must be able to show a basis in international law for doing so. Perhaps the most compelling case in support of this argument can be made by reference to history and state practice. All law started off as purely personal – at first as tribal law and later as enactments of a particular ruler. Sometime in the Middle Ages, rulers obtained control over the land inhabited by their subjects, and thus law became largely territorial. Every extension of the ambit of national law from this premise of nationality and territoriality has resulted from an intricate interplay of claims and counterclaims by different states, in the course of which the boundaries of law have been renegotiated. This is not a story omnicompetent states gradually limiting their capacity to legislate for conduct abroad, but rather states claiming personal and territorial competence and gradually criminalising certain conduct of non-nationals abroad. * Having established that a basis in international law for the extraterritorial extension of law is necessary, I turn to the reach of national criminal law over soldiers abroad. Contemporary international law recognises a handful of bases for extending the ambit of national law overseas. As already mentioned, the prevailing view among commentators, to the extent that one is articulated at all, is that this is based on the nationality principle. I argue that this is not the case. In addition to the earlier point that soldiers and associated civilians may include non-nationals, there are two further points to suggest that one is dealing with something different. First, national law seems to be applied to soldiers far more liberally than to nationals. Thus, many states that, as a general rule, do not bind their nationals abroad by domestic criminal law, apply the full extent of that law to soldiers. And those states that do apply their law to nationals abroad tend to lift 5.

Lotus, supra note 3, at 18–19.

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all procedural restrictions usually applicable with respect to extraterritorial crime (for example the requirement that the act be punishable by the law of the host state or the requirement of the consent of the Chief Prosecutor or Attorney General). Second, the extension of law over nationals abroad seems to be the corollary of the protection that the state gives to those nationals. However, when it comes to soldiers this does not seem to be the principal justification or concern. Alternatively, some authors – including, at least one Finnish commentator, and, apparently, the majority of German scholars – think that offences committed by soldiers abroad are by definition fundamentally detrimental to the security of the state, and thus fall under what is known as the protective principle. This approach is also flawed, and largely for two reasons. First, states routinely extend the scope of their legislation to the conduct of soldiers and associated civilians that has little or no impact on national security. The conduct of Private Puhl, while deplorable and probably detrimental to the discipline of the forces, does not quite reach the level of espionage or similar offences against the state. Second, international law came to recognise the protective principle sometime during the 18th century. But the extension of national law to soldiers abroad has occurred regularly at the very least since the emergence of distinct military codes in the 12th century. Thus service jurisdiction predates the protective principle by about 600 years. So, if the existing principles are of no use, and service jurisdiction is something distinct, what justifies it? I suggest that there are at least four relevant factors. First, service jurisdiction covers certain things that can, by their very nature, only be dealt with under the law of the state to which the forces belong. This is what Finn Seyersted called ‘organic jurisdiction’. For example, being absent without leave from the US forces while based in Afghanistan can hardly be made an offence under Afghani law. Any attempt by Afghanistan to regulate discipline within the US forces would indeed be an intervention in the internal affairs of the US. Second, service jurisdiction helps maintain military discipline, which, as military commanders would be quick to point out, is at the core of the effectiveness of an armed force. Moreover, the law of armed conflict explicitly requires states to have in place a disciplinary system within their armed forces, and this system can obviously only be based on the law of the state to which the forces belong. Third, a State is responsible as a matter of international law for the conduct of its armed forces and, under certain circumstances, the conduct of associated civilians. The extension of law to these people can, on the one hand, serve the purpose of preventing misconduct that could give rise to state responsibility. On the other hand, the application of the law and the punishment of individuals can constitute a form of satisfaction in case state responsibility has been engaged. Fourth, soldiers and associated civilians often enjoy some kind of immunity from the legal process of the host state. Thus, the extension of the law of the sending state has the effect of avoiding legal black holes devoid of all law or law enforcement. The practical implication of regarding service jurisdiction a separate category is that its scope does not depend on other jurisdictional principles, in particular it is not constrained by formal nationality or the requirement that the offence directly affect the security of the state. Rather, there is room for the argument that a state should be able to extend its laws to persons who impact upon the discipline of its armed forces, who are exempt from local law by virtue of their status and/or who can engage the liability of that state in international law.

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An Axiom of Military Law: Applicability of National Criminal Law to Military Personnel and Associated Civilians Abroad by Rain Liivoja. Doctoral Dissertation, University of Helsinki, 2011 1. In my report on the pre-examination of the above mentioned dissertation I stated that the dissertation makes an original contribution to scientific knowledge and therefore meets the expectations of a doctoral work, and suggested that Mr. Liivoja be granted permission to defend the dissertation in a public examination. On 1 July, 2011 I took part as ‘opponent’ in the examination and concluded that Mr. Liivoja has successfully defended his dissertation. This Report offers an assessment of the doctoral dissertation.

Background 2. International law regulates the competences of states to impose their criminal laws to acts that take place outside their boundaries and to adjudicate such acts. The international law on the extraterritorial application of national criminal law has developed especially in the 20th Century through treaties and state practice, and through judgments of national and international courts. The doctrine has recognized several bases that justify the extension of national criminal law to foreign acts (the nationality principle, the territorial principle, etc.). These bases refer, in general (and in addition to universal jurisdiction for crimes against humanity and war crimes) to the identity of the doer (whether or not a national of the state applying its laws), the identity of the victim (whether or not a state national), or the strength of the state’s interest in preventing what it defines as a crime. 3. This general approach to regulating national competences in applying criminal law left out an important sub-field: The extension of national criminal law to military personnel situated abroad as peacekeeping forces, as occupiers or as operators of military bases under an agreement with the territorial state. Despite the prevalence of these phenomena, and the pressing need to regulate the question which criminal law governs the activities of the foreign troops, this question has never been fully and thoroughly explored. Rain Liivoja’s dissertation fills this gap in the literature.

The Main Arguments 4. The dissertation rightly defines the problem it faces not as a procedural question related to the jurisdiction to adjudicate but as a substantive question related to the authority to prescribe law. This is due to the fact that courts in criminal law cases apply only their own national law. This is not the case in civil matters, where courts may apply foreign law (under rules of private international law). In a sense, the question under international law (how to allocate among nations the authority to prescribe criminal law) is not dissimilar from the question under private international law which law to apply in civil suits (for example, when dealing with a tort committed abroad). But the difference, as the author acknowledges, is that in civil suits the matter is regulated only by domestic law, and courts have discretion to apply foreign law according to the specific circumstances of the case; in criminal cases the question which law is applicable is not subject to the court’s discretion because the court in criminal cases must apply the law

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of the forum. Therefore, although the considerations may be similar, the answer to the question which law governs must be answered by the legislature. And because the consequences of imposing criminal law are significant to the states and to the individuals, the matter is also subject to regulation by international law. 5. The dissertation begins with a general study of the evolution of the international law on the allocation of the jurisdiction to prescribe criminal law. It describes state practice and case law of national and international courts. The author finds that states have adopted different approaches, but that in general it is possible to observe that states have expanded their jurisdictional claims in recent decades. Paradoxically, perhaps, this expansion of authority may have moved international law to be stricter with such national claims, and may have led to what the author regards as its generally limiting nature. 6. The author focuses on the tension that exists between assertions – backed by an important judgment of the Permanent Court of International Justice (PCIJ), the Lotus case – that states, as sovereigns, have the freedom to extend their laws to extraterritorial conduct as they please, and the development of specific limitations on this freedom over the years. He advances a strong claim that challenges that accepted position, by arguing that instead of freedom subject to limitations, a more accurate approach must recognize that states are actually subject to a general limitation to extend their laws extraterritorially, unless they can invoke a recognized exception to this limitation. The author presents six arguments – historical, empirical, ideological, functional, doctrinal and systemic – in support of his general thesis. 7. In this context the author takes issue with the Lotus judgment of the PCIJ and the way it was perceived in the literature. Because the Lotus judgment stands in sharp contrast with the author’s thesis, he must explain why the judgment does not, or no longer, reflect the law. He interprets the judgment and also explores subsequent caselaw, arriving to the convincing conclusion that the Lotus judgment is limited in it scope and that subsequent practice of the International Court of Justice (the successor of the PCIJ), while inconclusive, seems to qualify Lotus. 8. This general proposition leads the author to the second part of the dissertation where, as the consequence of his analysis, must explore whether international law recognizes the authority of states to extend their laws to the activities of their forces operating abroad. This part examines the various circumstances in which foreign armed forces find themselves in foreign arenas and the categories of the persons who would take part or be associated with such forces; practice of forces on the ground in foreign lands, including status-of-forces agreements (SOFAs); and the national laws of several countries. 9. The author presents and defends his main thesis, which asserts that when elements of the armed forces are stationed abroad, they usually enjoy some degree of insulation from the legal system of the host state, and in turn are subjected to the criminal laws promulgated by their own state. The author commends this practice because it prevents impunity of members of the forces or the civilians associated with them (who are immune to the host state’s law) and because it increases the ability of the sending state to reign its soldiers and comply with its obligations toward the host state and its nationals. The author asserts that this outcome is reflected in contemporary international law. 10. The author is careful to acknowledge that in principle there can be tension between the two systems that regulate the foreigners’ behavior. Such is the case, for example, when

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the State of nationality criminalizes an act that was permitted or even positively required by the law of the host state. The response lies in ‘rules of engagement’ that may require, as the author reports to be the case in many countries, that the prosecution of nationals at home for acts committed abroad is conditioned on the act being also prohibited by the host state. 11. Ultimately, the author returns to the more general discussion about the bases for grounding the jurisdiction to prescribe under international law and argues that the extension of national criminal law to elements of the army abroad is a distinct ground, which cannot be subsumed under either of the currently recognized bases for state jurisdiction (the nationality principle, the territorial principle, etc.). He therefore defines a new, independent basis for extraterritorial jurisdiction which he terms ‘service jurisdiction’.

Assessment 12. The dissertation is rich and complex. The author engages in a comprehensive analysis that involves different aspects and different legal disciplines (international law, criminal law, jurisprudence), state practice and comparative study of different national legislation and caselaw as well as agreements concerning the status of foreign forces. Fortunately the author is not intimidated by the complexity of the task and manages to steer a steady course through the different issues and disciplines and arrive at convincing conclusions. 13. The dissertation is based on meticulous research of rich variety of sources, on careful and critical analysis of the literature, on independent thinking and on solid argumentation. The dissertation is well reasoned and well written and demonstrates very high quality of scientific writing. 14. The author correctly concludes that the extraterritorial applicability of national criminal law to nationals that serve in the army or are associated with it must be sanctioned by international law, subject to ‘rules of engagement’ that would resolve conflicts that occur, for example, when a foreign soldier harms a local citizen or when the local law actually requires one to perform what may be illegal under one’s national law. The recognition of this independent ground of jurisdiction has important immediate consequences under contemporary conditions, where foreign armies are assisted by private companies and employees who may not have the same nationality of the army and may come from third countries. 15. The proposal to carve up a new and independent basis for extraterritorial application of national criminal law is innovative and liberating, as it opens up the discourse on extraterritorial application of national law to fresh thinking that is not moored to the recognized five doctrines for applying national law. Indeed, there is no need to try to squeeze situations where national law should be applicable extraterritorially to those five bases of jurisdiction. In this sense, the dissertation paves the way for further studies about new types of extraterritorial activities that might be regulated by a foreign state. 16. While the author sees his thesis as necessary in tension with the ‘Lotus principle’, which grants states unfettered discretion to apply their law unless prohibited by international law, there may actually be a common denominator to both approaches. One could read the Lotus judgment as aiming to reduce impunity and regulate inter-state

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competences in the area of criminal law just like the author’s present project. When the Lotus judgment was rendered there was little international law on this subject. One may read Lotus as motivated by the concern that imposing limits on state jurisdiction as the default rule would lead to impunity of foreign actors because states would have little interest to indict their citizens who had committed crimes in other states against foreign interests. The court may have estimated that only through conflicting assertions of competences to prosecute would states eventually reach agreement on ways to regulate their respective jurisdictions while ensuring that all crimes are prosecuted. Following the same logic, the evolution of international law in this context could also perhaps be explained by reciprocal interaction among sovereigns which concede to each other mutually agreed spheres of application of their criminal laws. This may then be a vindication of the early approach of Lotus, in the sense that the law that developed post-Lotus filled the void that existed at the time. 17. In a sense, international law must allocate the competence to prescribe and apply criminal law because national courts cannot engage in such an analysis: unlike in civil matters, where foreign law could be invoked and applied, in criminal matters courts may not apply the public laws of foreign sovereigns. As a result, public international law must address questions that domestic courts weigh when they engage in private international law analysis to determine the proper law (that would apply to a tort or a breach of contract). This is especially clear where the author resorts to similar considerations that play out in choice of law analysis under private international law. Although this would clearly go beyond the scope of this dissertation, the author might in the future explore the commonality and difference between the imposition of criminal law on troops situated abroad and the imposition of tort law, personal status law or contract law. 18. Another aspect that might in the future be useful to explore would be the comparison between immunity granted by the territorial legal system to foreign troops and the immunity granted to the regulation of employment and disciplinary actions within international organizations. In both cases the territorial state conceded to the foreign state or to the international organization because it had lesser interest in regulating the activity within that organization and because it is assured that there is comparable system that regulates internal affairs. But this concession is based on the assumption that the institution will apply its laws and respect the rights of the employees. In other words, the host state does not give up its right and its obligation to ensure that the individuals who find themselves on its territory are protected by the law (even if it is not the state’s law). 19. In the same vein, a further extension of the ‘rules of engagement’ between the competing application of the criminal laws of the sending state and the host state would address the human rights perspective. In some cases, when the host state agreed to the presence of foreign troops, it might remain responsible under international law (or domestic law) for the protection of the human rights of foreign nationals who were sent to their mission by the sending state. If so, then the host state could be responsible to ensure that the sending state complies with the human rights obligations that the host state is committed to respect, and this might limit the discretion of the sending state in applying its laws even when dealing solely with its nationals. 20. The questions that I raise here demonstrate the success of the author to carve up a new sub-field of inquiry that not only sheds new light on the phenomenon of ‘service

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jurisdiction’ but on the larger question of the extraterritorial application of national laws. This is more than one can expect from a doctoral dissertation.

The Public Examination 21. In my view, the author performed very well during the public examination. He responded to all my questions fully, seriously, and eloquently to my absolute satisfaction.

Conclusion 22. This dissertation clearly demonstrates the author’s ability to conduct independent research, his thorough knowledge of the field in general and of related fields, of his competence in the methodology of international law in general and of the interaction between international law and national criminal law, and of comparative criminal law. The dissertation is well structured and well written. Eyal Benvenisti Anny and Paul Yanowicz Professor of Human Rights Tel-Aviv University

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 Hart Publishing. 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.