Finnish Yearbook of International Law: Volume 19, 2008 9781472565280, 9781849460415

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Introduction to the Special Theme: International Law, the Environment and Power Katja Keinänen and Kati Kulovesi* Since the rise of environmental consciousness in the 1960’s and 70’s, the body of international norms relating to the protection of the environment has grown exponentially, and the trend of ‘greening‘ international law and institutions has continued strong in the new millennium. The justifications for global environmental regulation are often universal and idealist. However, the question can be raised whether international environmental regimes have been successful in advancing green ideals and preventing environmental degradation. Or have they legitimised the continuation of environmentally harmful activities and resulted in excessive bureaucracy and process-driven managerialism? How about the impact of this increasingly specialised legal sphere on the fragmentation of international law? The aim of this special theme issue of the Finnish Yearbook of International Law on international environmental law and governance is to provide a forum for critically discussing the possibilities and prospects of international law in protecting the global environment and to advance ‘justice’, that is, a more equal share of global risks and resources between states and other stakeholders. The papers presented here reflect lectures given during the 21st Helsinki Summer Seminar on International Law held in 18-24 August 2008 under the title International Law, the Environment and Power organised by the Erik Castrén Institute of International Law and Human Rights in co-operation with the Faculty of Law at the University of Helsinki, the Ministry for Foreign Affairs of Finland and the Centre of Excellence in Global Governance Research. They cover a range of topics from the general features of global environmental law and its relationship with other international legal regimes, such as the World Trade Organization (WTO), to the limitations of international law in securing peace and prosperity and the role of international environmental law in trying to prohibit whaling. *

Katja Keinänen, LLD Candidate (University of Helsinki) is Research Fellow at the Erik Castrén Institute of International Law and Human Rights, University of Helsinki and Kati Kulovesi, Ph.D. is Affiliated Research Fellow at the Erik Castrén Institute and is currently also teaching international and European environmental law at the London School of Economics and Political Science.

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The Special Theme begins with the paper by Professor Ellen Hey on ‘Global Environmental Law’. She first addresses the meaning of ‘global environmental law’ and the challenges that global environmental law has to contend with. In this regard, she argues that global environmental law is distinct from the body of international law and characterises it as ‘a system of governance or administration in which public powers, that is powers that shape society and that affect individuals and groups in society, are being exercised also by institutions at the global level.’ Professor Hey continues by considering the manner in which global environmental law addresses challenges on the basis of relevant legal principles, thereby providing a comprehensive overview of the key principles. Professor Hey also discusses the institutional framework for the development and implementation of global environmental law, providing insight into the decision-making process and procedures through which disclosure of global environmental law unfolds. In this regard, she focuses on the relationship between developed and developing countries, arguing that the South-North context saliently illustrates the role of power in global environmental law. Here she highlights, inter alia, that the transfer of funds and technology from developed to developing states is implemented via institutions located outside multilateral environmental agreements (MEA), in other words, ‘one-state, one vote system of MEAs is replaced by a system of weighted voting used in the World Bank and related institutions.’ Professor Hey concludes by arguing that there is a mismatch between the promise of justice for developing countries, as reflected in relevant principles of global environmental law, and the institutional structure in which the World Bank and developed countries play a dominant role. Dr. Kati Kulovesi draws attention to recent debates concerning fragmentation of international law and focuses on the relationship between international environmental law and the World Trade Organization (WTO). In her paper ‘Fragmented Landscapes, Troubled Relationships: The WTO Dispute Settlement and International Environmental Law’, she shows that the WTO dispute settlement system has come to play an important role in solving international conflicts between trade and environment. She argues, however, that has not been intentional and that the success by the WTO dispute settlement system in attempting to balance trade and environment has been modest. While accepting that the Shrimp-Turtle case played an important role in building some bridges between the WTO and the international environmental community, she contends that the role of international environmental law in the WTO dispute settlement system remains both controversial and unclear. On the academic side, scholars continue to express divergent views on the competence by the WTO dispute settlement system to apply international environmental norms. Concerning the WTO dispute settlement practice, a comparison between the Shrimp-Turtle and Hormones cases shows that the Appellate Body has been inconsistent in its

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approach to international environmental law - and at the very least, it has failed to provide adequate legal justifications as to why certain environmental norms and instruments have been relevant in WTO disputes while others have not. Dr. Kulovesi argues that Biotech panel decision confirms the reluctance by WTO dispute settlement bodies to engage constructively with international environmental law. She therefore concludes that the jurisprudence by the WTO relating to trade and environment highlights concerns relating to the fragmentation of international law and the potential of inconsistencies between institutionally separate but materially overlapping legal regimes. Dr. China Miéville draws the attention to the UN operation generally ignored in mainstream international law literature; the UN-backed coup and occupation in Haiti in 2004. In his paper on ‘Multilateralism as Terror: International Law, Haiti and Imperialism’ which forms a part of his talks in Helsinki Summer Seminar entitled ‘Pollution, Power and International Law’ Miéville reveals not only the serious limitations of multilateral international law in securing global peace and prosperity but also its instrumentality to justify US imperialism in world politics. Indeed, critically assessing the UN Haiti operation he seems unable but to conclude in terms of reformulating Philippe Sands’s central message in Lawless World that ‘[t]he only thing more oppressive than a lawless world might be a lawful one.’ Dr. Peter H. Sand concentrates on the legality of Japanese whaling for ‘scientific purposes’ in the Antarctic Southern Ocean and the North Pacific Ocean. Founded on a controversial exemption clause of the 1946 International Convention for the Regulation of Whaling (ICRW) Japanese scientific whaling caught the attention of international media following the incident in which when Japanese whalers collided with the vessel of anti-whaling activists resulting in the sinking of the latter in 6 January 2010. Sand’s ‘”Scientific Whaling”: Whither Sanctions for Non-Compliance with International Law’ provides an in-depth analysis on the relationship of the ICRW regime with other applicable multilateral agreements and comes to a conclusion that Japanese current pelagic ‘research whaling’ programmes are in open breach of the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). To limit Japanese excessive scientific whaling Sand thus recommends the initial of ‘compliance procedures’ in accordance with CITES Conference Resolution of 14 March 2007, potentially leading to a collective trade embargo. These four papers thus illustrate the multitude of challenges that emerge when trying to remedy international environmental problems through law. While the importance of fighting global environmental threats, such as climate change and loss of biodiversity, is widely recognised, attempts to translate this universal and idealist sentiment into effective legal action tend to surface familiar struggles over power and economic resources. Tensions between the North and the South, the

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rich and the poor, the powerful and the weak, those who prefer trade over the environment and vice versa, are all very well-known to international environmental lawyers. Nearly twenty years after the Rio Conference on Environment and Development, a number of complex legal regimes have been developed to tackle global environmental threats, including such prominent examples as the United Nations Framework Convention on Climate Change and the Convention on Biological Diversity. It remains, however, unclear whether these legal efforts will ultimately be effective in preventing the ecological and social threats that they have been designed to avoid - or whether their main achievement will be the emergence of a new specialised legal area, international environmental law, characterised by highly sophisticated bureaucracies and complex jargon. In light of alarming scientific reports on continuously increasing greenhouse gas emissions and rapid loss of biodiversity one would certainly hope that international environmental law will eventually somehow rise to meet the enormous challenge.

Global Environmental Law Ellen Hey∗ ABSTRACT: This essay first considers the implications of the term ‘global environmental law’ and the challenges that face this body of law. It subsequently focuses on how global environmental law seeks to address these challenges. This analysis proceeds in three stages. It considers relevant legal principles, the institutional framework and, by way of conclusion, global environmental law as a system of governance. The essay concludes that there is a mismatch between the promise of justice for developing states, reflected in the principles of global environmental law, and the institutional structure in which the World Bank, and thus developed states, plays a prominent role. KEYWORDS: environmental law, global administrative law, environmental law principles, institutional law, environmental governance, South-North relations.

1. Introduction This essay reflects lectures delivered at the ‘Helsinki Summer Seminar on International Law’, which in 2008 focused on the topic ‘International Law, the Environment and Power’. In my lectures I addressed three topics in order to provide an overview of some salient themes in what is generally referred to as international environmental law.1 *

1.

Ellen Hey is Professor of Public International Law at the Erasmus School of Law, Erasmus University Rotterdam. I am thankful to the Helsinki Faculty of Law, Professor Jan Klabbers in particular, for inviting me to give the opening lectures at the 2008 Helsinki Summer Seminar on International Law. Note that my lectures, and thus this essay, were informed by and based on work. Relevant are the Daniel Bodansky, Jutta Brunnée and Ellen Hey (eds), Oxford Handbook of International Environmental Law, (Oxford University Press, 2007) hereinafter Handbook), a project that gave me the opportunity to collaborate with a wonderfully inspiring group of individuals and is the main source for further reading pointed to in this essay. In addition, section 2 reflects ideas in the introductory chapter of the Handbook: Daniel Bodansky, Jutta Brunnée and Ellen Hey, ‘International Environmental Law: Mapping the Field’; Section 3 is based on part of Maas Goote and Ellen Hey, ‘Internationaal Milieurecht’ (International Environmental Law), in Nathalie Horbach, René Lefeber and Olivier Ribbelink (eds), Handboek Internationaal Recht, (Asser Press: The Hague, 2007) 681-711; and section 4 is based on part of Ellen Hey, ‘Global

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This essay first considers the implications of its title ‘global environmental law’ as well as the challenges that global environmental law has to contend with. Thereafter, the manner in which global environmental law addresses these challenges will be discussed on the basis of relevant legal principles. This discussion provides insight into the discourse of and the various interests that play a role in global environmental law. Subsequently, the institutional framework established for the development and implementation of global environmental law will be addressed. This section of the essay provides insight into the decision-making processes and procedures through which the discourse of global environmental law unfolds. It focuses on a particular feature, namely the relationship between developing and developed states. I chose this focus as it is the South-North context that saliently illustrates the role of power in global environmental law. Finally, and by way of conclusions, I will briefly address global environmental law as a system of governance that seeks to address common interest problems. I will conclude that there is a mismatch between the promise of justice for developing states, as reflected in relevant principles of global environmental law, and the institutional structure in which the World Bank, and thus developed states, plays a dominant role. The approach chosen in this essay entails that specific substantive issues or regimes, such as the ongoing negotiations for a successor to the Kyoto Protocol to the United Nations Framework Convention on Climate Change, will be referred to in this essay by way of example, only.2

2. Global Environmental Law and the Challenges Faced The title of this essay ‘global environmental law’ implies that I consider this body of law to be distinct from classical international law, a body of law that is concerned mainly with defining the limits of state action vis-à-vis each other and which revolves around the inter-state paradigm. This characterization, however, only indicates what I consider global environmental law not to be and requires elaboration. More positively and borrowing from the New York University project on global administrative law,3 global environmental law can be characterized as a system of governance or administration in which public powers, that is powers that shape

2.

3.

Environmental Law and Global Institutions: A system lacking “good process”’ in Roland Pierik and Wouter Werner (eds), Global Justice, Sovereign Power and International Law Bridging the Gap between Global Political Theory and International Legal Discourse (Cambridge University Press, 2010, forthcoming). For information on specific regimes see Ian H Rowlands, ‘Atmosphere and Outer Space’, David Freestone and Salman M.A. Salman, ‘Oceans and Freshwater Resources’, Rosemary Rayfuse, ‘Biological Resources’, and David Wirth, ‘Hazardous Substances and Activities’ in Handbook, supra note 1, respectively, 315-336, 337-361, 362-393 and 394-422. See (visited 29 April 2009).

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society and that affect individuals and groups in society, are being exercised also by institutions at the global level. Think of, for example, the Conference of the Parties/Meeting of the Parties (COP/MOP) to the Kyoto Protocol determining the conditions under which states and private parties are allowed to participate in emissions trading;4 the COP of the Convention on International Trade in Endangered Species (CITES) placing a species on one of the CITES-lists and thereby prohibiting or limiting trade in that species; or the World Bank financing a project on the provision of sufficient and clean drinking water and stimulating the privatization of the drinking water sector. Global environmental law, thus, harbors traits of what is in national law referred to as administrative law. Global environmental law requires interaction with non-state actors due to the fact that these actors need to change their behavior if environmental goals are to be attained. In other words, if we wish to reduce Carbon Dioxide (CO2) emissions, industries need to change their production processes and consumers their consumption patterns. Likewise, if we wish to preserve a certain marine ecosystem, we will have to address threats posed to that eco-system, for example, by fishers engaged in bottom-trawling. Global environmental law, albeit mostly indirectly via states then in addition to states, addresses non-state actors. Moreover, nonstate actors, particularly in the form of environmental NGOs and representing the corporate sector, actively inter-act with states and global institutions involved in environmental decision-making.5 In addition, non-state actors also engage in standard setting by way of the adoption of, for example, voluntary codes of conduct.6 A relevant example is the ISO 14000 series, providing standards for environmental management and the basis for the certification of companies as complying with environmental standards. These standards have been developed by the International Organization for Standardization, a NGO, whose membership consists of both public and private standardization organizations. Another set of issues with global environmental law needs to contend are related to the physical and technological origin of environmental problems and the scientific and technological basis of solutions to environmental problems.7 The fact that environmental problems find their origin in physical processes means that science plays an important role in defining environmental problems. Moreover, technological innovations often contribute to the solution of environmental problems, but may be at the origin of new ones. Think of the introduction of ever higher smoke stacks, which turned air pollution from a local into a regional 4. 5. 6. 7.

Also see text at note 79. See Peter J. Spiro, ‘Non-governmental Organizations and Civil Society’ and Steven R. Ratner, ‘Business’, in Handbook, supra note 1, respectively 770-790 and 807-828. See Jason Morrison and Naomi Roth-Arriaza, ‘Private and Quasi-Private Standard Setting’, in Handbook, supra note 1, 498-527. See Steinar Andresen and Jon Birk Skjærseth, ‘Science and Technology: From Agenda Setting to Implementation’, in Handbook, supra note 1, 182-202.

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problem. Or, think of the innovative use of chlorofluorocarbons (CFCs) in cooling liquids in refrigerators, resulting from scientific research conducted in the 1920’s and replacing more polluting substances, such as ammonia. Years later, during the mid-1970’s, scientific research revealed that CFCs deplete the ozone layer. Subsequently, scientific research led to the discovery of alternatives to CFCs, hydrochloroflourocarbons (HCFCs) in particular, some of which proved to be greenhouse gasses. Science, then, plays an important role in determining both the causes of and solutions to environmental problems; and technological innovations may be at the source of both environmental problems and their solution. Scientific uncertainty, an inherent part of science, also poses challenges for global environmental law. Scientific uncertainty may exist about the causal relation between a single pollutant or activity and its effects on the environment, but is particularly problematic when numerous pollutants or activities affect the environment, with detrimental effects accumulating. In case of the latter, consider the following question. Is the deterioration of a marine ecosystem due to over-fishing, global warming and thus CO2 emissions, ecosystem dynamics grounded in natural processes8 or all of these factors? Science and technology also play a role in developing and operating monitoring and verification programs.9 Such programs are not only important for determining whether relevant actors meet their obligations, but also for assessing whether the measures adopted have the desired effect on the environment. This points to another problem that environmental law faces: while changing human behavior is important, it is not sufficient; it is the effect on the environment that ultimately counts. Global environmental law also has to contend with the cost of environmental measures and thus with cost effectiveness.10 This is a particularly thorny issue in the face of scientific uncertainty. Do we spend a Euro today, at the risk of wasting it, or do we wait until we know more, at the risk of having to spend more on remedying the situation, if it is at all possible at that stage? Cost effectiveness, however, is not the only money-related issue that needs to be addressed by global environmental law. Perhaps even thornier is the political-financial issue of how costs should be allocated among states, among developed and developing states in particular, and between public and private actors. Global environmental law, furthermore, seeks to address common interest problems. That is, problems that face the global community as such and that cannot be resolved by any one state on its own.11 This process results not only in

8. See Dan Tarlock, ‘Ecosystems’, in Handbook, supra note 1, 574-596. 9. See Jørgen Wettestad, ‘Monitoring and Verification’, in Handbook, supra note 1, 974-994. 10. See Scott Barrett, ‘An Economic Theory of International Environmental Law’ in Handbook, supra note 1, 231-261. 11. See Jutta Brunnée, ‘Common Areas, Common Heritage and Common Concern’, in Handbook, supra note 1, 550-573.

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new rules of law, but also has introduced systemic change into the legal system.12 A pertinent example is the way in which non-compliance with applicable rules is dealt with: through non-adversarial compliance procedures that aim to bring states back into compliance,13 instead of by way of adversarial inter-state dispute settlement procedures that focus on determining state responsibility.14 Decision-making in global environmental law, then, is a dynamic process in which the content of global environmental law interacts with complex socioeconomic, scientific, technical and political problems. While these characterizations are not unique to global environmental law, this body of law pertinently illustrates how international law is changing and has taken on traits of administrative law.15 This functional equivalence between the two systems of law justifies the argument that global environmental law should incorporate the checks and balances associated with administrative law systems, albeit in a context in which states continue to play a more than significant role. I note that global environmental law is not necessarily a system of law that meets standards of justice. Rather, it is a system of law that is grappling with common interest problems in a world in which there are strong divides, especially between developing and developed states, and in which the decision-making processes and procedures of global institutions reflect the legacy of colonialism.16

3. Legal Discourse A discussion of legal principles is incorporated in this essay because it provides an overview of the discourse of global environmental law. It, moreover, points to the various interests that play a role in global environmental law. While there is a thriving debate about which principles qualify as customary international law,

12. See Thomas Gehring, ‘Treaty-Making and Treaty Evolution’, in Handbook, supra note 1, 467497. 13. See Jan Klabbers, ‘Compliance Procedures’ and Ronald B. Michell, ‘Compliance Theory: Compliance, Effectiveness and Behaviour Change in International Environmental Law’, in Handbook, supra note 1, respectively, 995-1009 and 893-921. 14. This is not to say that inter-state dispute settlement procedures do not have a role to play. They are important as the citations to relevant cases in this essay illustrate, however, the case law remains limited. See Cesare P.R. Romano, ‘International Dispute Settlement’, in Handbook, supra note 1, 1057-1056. 15. See Benedict Kingsbury, ‘Global Environmental Law as Administration: Implications for International Law’ in Handbook, supra note 1, 63-84. 16. For a similar point with regard to global administrative law see B.S. Chimni, ‘Cooption and Resistance: Two Faces of Global Administrative Law’, (2005) IILJ Working Paper No. 2005/16, (visited 29 April 2009). On colonialism and international institutions see Anthony Anghie, ‘Colonialism and the Birth of International Institutions’, 34 New York University Journal of International Law and Politics (2002) 513-633.

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this debate, as such, will not be engaged with in this essay.17 I do point out that most, if not all, of the principles referred to below are reflected, often implicitly, in multilateral environmental agreements (MEAs), and thus arguably are part of treaty law, while many also qualify as customary law, as also indicated below. The Rio Declaration on Environment and Development (Rio Declaration) will serve as a basis for discussing principles of global environmental law. The Rio Declaration is not a legally binding document; it is a Ministerial Declaration adopted at the United Nations Conference on Environment and Development, held in Rio de Janeiro in 1992.18 This section consecutively discusses general principles, principles that determine the duty of care and more specific principles, mostly of a procedural character, that indicate how the other principles are to be realized.

3.1. General Principles Among the first principles that emerged, and still is relevant today, was the duty to prevent transboundary environmental harm, applied in the Trail Smelter arbitration in 1941.19 It is linked to ‘… every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States…’, applied by the International Court of Justice (ICJ) in its 1949 decision in the Corfu Channel case.20 Eventually, this principle evolved to include every state’s duty to prevent environmental harm to areas beyond national jurisdiction, i.e. the high seas, Antarctica and outer space. The duty to prevent transboundary environmental harm and harm to areas beyond national jurisdiction was included in Principle 21 of the 1972 Stockholm Declaration21 and, albeit in slightly different terms, in Principle 2 of the 1992 Rio Declaration, where it reads as follows: States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause dam-

17. See Ulrich Beyerlin, ‘Different Types of Norms in International Environmental law: Policies Principles and Rules’ and Pierre-Marie Dupuy, ‘Formation of Customary International Law and General Principles’, in Handbook, supra note 1, respectively, 425-448 and 449-466. 18. The Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 (vol. I); 31 ILM 874 (1992). See Peter Sand, ‘The Evolution of International Environmental Law’, in Handbook, supra note 1, at 29. 19. See Gunther Handl, ‘Transboundary Impacts’, in Handbook, supra note 1, 531-550. On the Trail Smelter case see Cairo A.R. Robb (ed.), International Environmental Law Reports, Vol. 1, Early Decisions, (Cambridge University Press, 1999) 231-262. 20. Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania) Case, ICJ Reports (1949) 4, at para. 22. 21. Declaration adopted at the 1972 United Nations Conference on the Human Environment.

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age to the environment of other States or of areas beyond the limits of national jurisdiction.

In 1996, the ICJ, in its advisory opinion in Nuclear Weapons, declared this principle to be part of international law when it held that: [t]he existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment.22

As a result, it is now crystal clear that states have a duty of care to prevent transboundary environmental harm and environmental harm to areas beyond national jurisdiction. Principle 2 of the Rio Declaration also refers to the sovereign right of states to exploit their own national resources. This notion is closely related to the doctrine of state sovereignty and to the notion of ‘permanent sovereignty over natural resources,’ developed in discussions related to the efforts of developing states to establish the New International Economic Order (NIEO) during the 1970’s.23 Nevertheless, global environmental law is increasingly concerned with activities that take place within the territory of a state. This is because the potentially harmful effects of such activities, even if they do not extend, in a physical sense beyond the territory of the state in question, are of concern to the global community as a whole. Consider the conservation of biodiversity within the territory of a state. Components of such biodiversity, particularly in tropical areas located mainly in developing states, may be crucially important for the development of for example new medicines. Developmental policies of states are also mentioned in Principle 2. It thereby incorporates the balance that is to be achieved between developmental and environmental policies, as expressed in the principle of sustainable development.24 Even if the principle of sustainable development is a relatively new concept in global environmental law,25 the notion that environmental and other societal interests, including economic interests, need to be balanced can be traced to numerous

22. Legality of the Treat or Use of Nuclear Weapons (Nuclear Weapons), Advisory Opinion, ICJ Reports (1996) 226, at para. 29. 23. Nico Schrijver, The Evolution of Sustainable Development in International Law: Inception, Meaning and Status, Pocket books of the Hague Academy of International Law (Martinus Nijhoff Publishers: Leiden/Boston, 2008) at 47 and following. 24. See Ibid.; Daniel Barstow Magraw and Lisa A. Hawke, ‘Sustainable Development’, in Handbook, supra note 1, 597-612; Dire Tladi, Towards a Nuanced Conceptualisation of Sustainable Development in International Law (PULP: Pretoria, 2007). 25. The term was popularized by the so-called Brundtland Commission, after its Chair Gro Harlem Brundtland, Our Common Future, Report of the World Commission on Environment and Development (Oxford University Press, 1987).

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early legal systems, as illustrated by Judge Weeramantry in his separate opinion in the 1997 Gabčikovo-Nagymaros decision of the ICJ.26 The principle of sustainable development is also reflected in other principles of the Rio Declaration, in particular Principles 3 and 4, which provide as follows: Principle 3 The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations. Principle 4 In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.

Principle 3, furthermore, incorporates the principles of intra- and inter-generational equity.27 The principle of intra-generational equity refers to equity between members of the same generation, and is particularly relevant in the South-North context, where it has found expression in the principle of common but differentiated responsibilities at the level of states.28 The latter entails that while striving to attain common objectives regarding the protection of the environment, developed and developing states have different responsibilities, depending on their needs, historical contribution to environmental degradation, present contribution to the problem and their access to technological and financial resources. This principle is now reflected in most MEAs, such as, for example, the Convention on Biological Diversity (Biodiversity Convention) and the United Nations Framework Convention on Climate Change (UNFCCC), even if Article 3(1) of the latter contains the only explicit formulation of the principle in an MEA of world wide coverage. MEAs reflect the principle of common but differentiated responsibilities by providing that the extent to which developing states have a duty to implement the treaty depends on the extent to which developed states meet their commitment to transfer technology and financial resources as required by the treaty.29 The principle is developed in MEAs by way of: the non application of certain obligations to developing states;30 phased 26. Gabčikovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports (1997), 7 Separate Opinion of Vice-President Weeramantry. 27. See Dinah Shelton, ‘Equity’, in Handbook, supra note 1, 639-663. 28. Ellen Hey, ‘Common but Differentiated Responsibilities’, in Rüdiger Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law, (Oxford University Press, 2008) online edition, (visited 29 April 2009). 29. See e.g. Art. 4(7) of the UNFCCC (9 May 1992, in force 21 March 1994, 1771 UNTS 107) and art. 20(4) of the Biodiversity Convention (5 June 1992, in force 29 December 1993, 1760 UNTS 79). See Laurence Boisson de Chazournes, ‘Technical and Financial Assistance’, in Handbook, supra note 1, 974-994. 30. The Kyoto Protocol, (11 December 1997, in force 16 February 2005, 2303 UNTS 148), e.g.

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application of certain obligations to developing states;31 and the already mentioned commitment of developed states to transfer technology and financial resources to developing states.32 The principle of common but differentiated responsibilities also provides the basis for linking financial mechanisms, such as the Global Environment Facility (GEF), to MEAs.33 Principle 7 of the Rio Declaration formulates the principle of common but differentiated responsibilities as follows: States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem. In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command.

The principle of inter-generational equity refers to equity between generations. It means that the interests of future generations should be taken into account when the present generation determines its developmental and environmental policies. This principle was applied by the Supreme Court of the Philippines in its 1993 decision in Minores Oposa.34 In this case, the Philippine Supreme Court recognized the right of minors to act in court, through their representatives, also on behalf of future generations and their interest in the conservation of tropical forests. The ICJ also has pointed to the relevance of the interest of future generations in the protection of the environment, however, without naming the principle as such. The court recognized ‘that the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn.’35 Principle 4 also refers to what is known as the integration principle, which entails that environmental considerations should be incorporated into all other policies. It reflects the fact that global environmental law is intimately connected to other areas of international/global law.36 The principle has been included in does not impose emission reduction obligations on developing states. 31. E.g. Art. 5 of the Montreal Protocol (16 September 1987), in force 1 January 1989, 1522 UNTS 3) allows developing states a period of ten years in which to comply with obligations to reduce emissions of ozone depleting gases. 32. See e.g. Art. 4(5) UNFCCC and Arts. 16 and 20(2) Biodiversity Convention. 33. See section 4, infra. 34. Minors Oposa v. Secretary of the Environment and Natural Resources Fulgencio Factoran, Judgement of the Supreme Court of the Philippines of July 30, 1993, 33 International Legal Materials, 1994, at 173, supra note 22. 35. Nuclear Weapons, at para. 29 and Gabčikovo-Nagymaros, supra note 26, at para. 112. 36. See Alan Boyle, ‘Relationship between International Environmental Law and Other Branches of International Law’, in Handbook, supra note 1, 125-146.

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a large number of MEAs37 and also has found reflection in the Preamble of the 1994 Agreement establishing the World Trade Organization (WTO Agreement).38 The relationship between environment and trade is probably one of the most prominent, as evidenced by several of the Rio Principles that refer to both the need for environmental and developmental policies and to the importance of maintaining a free trade system. Most noteworthy is Principle 12 which reads as follows: States should cooperate to promote a supportive and open international economic system that would lead to economic growth and sustainable development in all countries, to better address the problems of environmental degradation. Trade policy measures for environmental purposes should not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade. Unilateral actions to deal with environmental challenges outside the jurisdiction of the importing country should be avoided. Environmental measures addressing transboundary or global environmental problems should, as far as possible, be based on an international consensus.

One reason why the relationship between free trade and environmental protection measures has become controversial is due to the fact that MEAs increasingly rely on trade related measures to protect the environment. Pertinent examples are the notion of prior informed consent as implemented in e.g. the Cartagena Protocol on Biosafety 39 and trade in carbon units as developed within the Kyoto Protocol.40 In addition, individual states have also introduced unilateral trade measures to protect the environment. A relevant example is the Hormones case before the dispute settlement bodies of the WTO. In this case import prohibitions for beef treated with certain hormones, introduced by the European Union, were disputed by Canada and the United States.41 The Rio Declaration also expressly links environmental policy to peace and security. Principle 25 provides that ‘peace, development and environmental protection are interdependent and indivisible’ and Principle 24, that ‘warfare is inherently destructive of the environment.’ These notions also are part of the 1977 Additional Protocol I to the 1949 Geneva Conventions which prohibits the use of ‘methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment’42

37. 38. 39. 40. 41. 42.

See e.g. Article 6, Convention on Biodiversity. Para. 1, Preamble, WTO-Agreement, in force 1 January 1995, 1867 UNTS 154. See text at infra note 65. See text at infra note 79. See infra note 61. Article 35(3), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) 8 June 1977, in force 7 December 1978, 1125 UNTS 3.

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and prohibits ‘[a]ttacks against the natural environment by way of reprisals’.43 The ICJ in Nuclear Weapons, moreover, determined that together, Principle 24 of the Rio Declaration and the provisions of Additional Protocol I: … embody a general obligation to protect the natural environment against widespread-long-term and severe environmental damage; the prohibition of methods and means of warfare which are intended, or may be expected to cause such damage; and the prohibition of attacks against the natural environment by way of reprisals.44

In a more general sense the court came to the conclusion that, even if international environmental law did not expressly prohibit the use of nuclear weapons, it: … indicates important environmental factors that are properly to be taken into account in the context of the implementation of the principles and rules of the law applicable in armed conflict.45

The 2005 World Summit Outcome also expressly linked poverty, environmental problems, and security.46 The link between human rights law and global environmental law also deserves attention.47 On the one hand, environmental concerns are increasingly expressed in terms of human rights, a development which is also evidenced by Principle 1 of the Rio Declaration, which provides that ‘[h]uman beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.’ On the other hand, human rights are increasingly interpreted so as to include environmental considerations. Pertinent examples are the right to life, the right to family life and the right to property, as well as socio-economic rights, such as the right to an adequate standard of living and the right to the highest standard of health, which have been interpreted to incorporate the right to water.48 In addition, procedural human rights, such as access to justice, are increasingly regarded as important for realizing environmental goals.49 A number of relevant principles also have been developed in the area of responsibility and liability law.50 Principle 13 of the Rio Declaration requires states

43. 44. 45. 46. 47. 48.

Art. 55(2), Additional Protocol I, Geneva Conventions. Nuclear Weapons, supra note 22 at para. 31 (emphasis by author). Ibid., at para. 34. 2005 World Summit Outcome, VN Doc.a/60/L1 (Summit Rapport), at paras. 72 and 79. See John G. Merrills, ‘Environmental Rights’, in Handbook, supra note 1, at 663. See Daniel García San José, Environmental Protection and the European Convention on Human Rights (Council of Europe Publishing: Strasbourg, 2005) and Committee on Economic, Social and Cultural Rights, General Comment 15 (2002), The right to water, UN Doc. E/C.12/2002/11 20 January 2003. 49. See text at and following infra note 68. 50. See Malgosia Fitzmaurice, ‘International Responsibility and Liability’, in Handbook, supra note 1, at 1010.

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to develop their national legal systems in such a way that those who suffer harm from pollution or other environmental harm are compensated and requires states to cooperate in the development of international liability law. The latter could concern both international civil liability regimes as well as state responsibility. A number of civil liability regimes have been developed. The oldest regimes concern damage resulting from oil pollution by ships and nuclear activities.51 A more recent regime, also primarily based on civil liability, is the regime for transboundary harm as a result of hazardous activities, developed by the International Law Commission (ILC).52 As far as state responsibility is concerned, only in the case of outer space law is responsibility directly imposed on states.53 Global environmental law, otherwise, faces the same problem as the general law on state responsibility, i.e. that states are reluctant to make use of the available customary law rules.54 Moreover, it is important to note that environmental law aims to avoid environmental harm; restitution and especially compensation being ‘second bests’, even if liability rules also may have a preventive effect. That states have a duty to cooperate in achieving the protection of the environment is crystal clear from the above. While this duty is reflected in various principles of the Rio Declaration, it is most explicitly formulated in the above quoted Principle 7, on common but differentiated responsibilities. In addition, Principle 5 also refers to the duty of states and individuals to cooperate in eradicating poverty, while Principle 6 determines that in cooperating to realize sustainable development, ‘[t]he special situation and needs of developing countries, particularly the least developed and those most environmentally vulnerable, shall be given special priority.’ Finally, Principle 27 of the Rio Declaration reflects a broad understanding of the duty to cooperate; it applies to states and other actors and requires ‘them to cooperate in the further development of international law in the field of sustainable development.’

51. See e.g. 1969 International Convention on Civil Liability for Oil Pollution Damage (29 November 1969, in force 19 June 1975, 973 UNTS 3) and 1960 Paris Convention on Third Party Liability in the Field of Nuclear Energy (29 July 1960, in force 1 April 1968, 956 UNTS 251) both amended at various times. 52. For the work of the ILC on international liability in case of loss from transboundary harm arising out of hazardous activities see (visited 29 April 2009). 53. 1972 Convention on International Liability for Damage Caused by Space Objects (29 March 1972, in force 1 September 1972, 961 UNTS 187). 54. Articles on Responsibility of States for Internationally Wrongful Acts, Annex to UNGA Res. A/RES/5683(2002).

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3.2. Principles that Determine the Duty of Care The general principles of global environmental law discussed in the previous section provide the general framework within which relevant law and policies should be developed. However, they do not indicate when protective action should be taken. It is in this respect that the prevention principle and the precautionary principle play important roles. The prevention principle is reflected in the above quoted Principle 2 of the Rio Declaration. The question which arises in this context is whether it entails a duty of result or a duty of care. It is generally agreed that the principle entails a duty of care, closely related to the duties of good neighborliness and due diligence stemming from, among others sources, Roman Law and related to relations between neighbors, and to the duty of reasonable and equitable use and the obligation to refrain from abuse of rights. The conduct that may be expected from a state, however, is to a large extent context dependant, in particular depending on the nature of the activity and environment in question. The more risky or dangerous an activity and the more vulnerable the environment, the higher the degree of preventive action expected from a state. Moreover, the state of scientific knowledge about the environment in question and the availability of technology able to protect that environment also play a role in defining the duty of care: the more we know about the vulnerability of an ecosystem and how to protect it, together with the increased availability of technology to protect that ecosystem, the more concrete the preventive measures required of a state will be. In addition, the implications of the prevention principle also depend on the development of more technical environmental measures. States are to implement these, often non-legally binding, measures in their national legislation. These measures, thus, also determine the minimum duty of care that may be expected of a state, and indirectly of the non-state actors operating under its jurisdiction.55 Consider the adoption of, in this case legally binding, measures regarding the double hull standard for tankers and phase-out plan for tankers by the International Maritime Organization in 1992, with an accelerated phase-out plan adopted in 2003. Such requirements ultimately determine minimum standards for ship builders.56 Also consider the aforementioned, non-legally binding decisions on the standards for participating in emissions trading adopted by the COP/MOP of the Kyoto Protocol.57 In addition to the prevention principle, the precautionary principle also determines the duty of care that may be expected of a state, and indirectly of the non-state actors subject to its jurisdiction.58 It imposes an enhanced duty of care in situations of scientific uncertainty. The precautionary principle is reflected, even 55. 56. 57. 58.

See Catherine Redgwell, ‘National Implementation’, in Handbook, supra note 1, 922-946. See (visited 29 April 2009). See text at supra note 4. See Jonathan Wiener, ‘Precaution’, in Handbook, supra note 1, 597-613.

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if not explicitly mentioned, in numerous multilateral and other environmental treaties. Article 3(3) of the UNFCCC is relatively explicit, requiring its parties to adopt precautionary measures. The precautionary principle determines that scientific uncertainty about the causal relationship between an activity or product and (serious or irreversible) harm to the environment shall not be a reason for postponing action to protect the environment. Formulations of the precautionary principle vary from strong formulations that entail a reversal of the burden of proof, to weaker formulations that require a precautionary approach to environmental protection and also refer to cost-effectiveness. Article 2(2) of the Convention on the Protection of the North East Atlantic (OSPAR Convention) is an example of the former formulation;59 Principle 15 of the Rio Declaration of the weaker formulation reads as follows: In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. The ICJ in Gabčikovo-Nagymaros applied the precautionary principle by referring to its content, but did not explicitly refer to the principle.60 In the face of contradictory scientific information, the court held that it: … is mindful that, in the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage.

The Appellate Body of the WTO in the Hormones case did not recognize the principle as a general principle of international law.61 The International Tribunal

59. Article 2(2)(a), OSPAR Convention: ‘the precautionary principle, by virtue of which preventive measures are to be taken when there are reasonable grounds for concern that substances or energy introduced, directly or indirectly, into the marine environment may bring about hazards to human health, harm living resources and marine ecosystems, damage amenities or interfere with other legitimate uses of the sea, even when there is no conclusive evidence of a causal relationship between the inputs and the effects’. The OSPAR Convention was adopted on 22 September 1992, entered into force 25 March 1998, 32 International Legal Materials 1069 (1992). 60. Gabčikovo-Nagymaros, supra note 26 at para.140 61. EC Measures Concerning Meat and Meat Products (United States and Canada v. European Community), WTO Appellate Body, 1998, WT/DS26/AB/R and WT/DS48/AB/R, at para. 123, available at (visited 25 January 2010).

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for the Law of the Sea applied the principle in the Southern Bluefin Tuna case, using the following terms: Considering that, in the view of the Tribunal, the parties should in the circumstances [i.p. scientific uncertainty and the level of catches, paras. 73-76, EH] act with prudence and caution to ensure that effective conservation measures are taken to prevent serious harm to the stock of southern bluefin tuna.62

The precautionary principle, thus, in case of scientific uncertainty and risk of significant harm to the environment, requires the taking of measures to protect the environment, yet it, as the prevention principle, does not determine the type of measures that need to be taken. State practice, though, illustrates that certain procedural measures are particularly relevant for determining if measures and the type of measures that need to be taken. Such procedures involve in particular transparent environmental/risk assessment procedures, on the basis of which all relevant factors can be considered and concerned individuals and groups can participate in decision-making. These procedures are discussed in the next section of this essay.

3.3. More Specific (Procedural) Principles In addition to general principles and principles that define the duty of care, more specific, mainly procedural, principles also are part of global environmental law. Economic considerations at an early stage in the development of global environmental law gave rise to the polluter-pays principle. It entails that the actor responsible for causing pollution and the resulting costs should bear these costs. The polluter-pays principle originated in the Organization for Economic Cooperation and Development (OECD) in the early 1970’s.63 It illustrates how in the early days of the discipline, private actors – the polluters – were the object of regulation. The principle, however, has met with opposition as a strict interpretation of the principle may result in the prohibition of subsidies to relatively environmentally friendly practices.64 As a result, the principle has been reformulated as what might be referred to as the principle of the internalization of environmental costs. Principle 16 of the Rio Declaration reflects this principle as follows: National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with 62. Southern Bluefin Tuna (New Zeeland v. Japan; Australia v. Japan), Order of Provisional Measures, ITLOS Reports of Judgments, Advisory Opinions and Orders 1999, 280, paras. 73-77, at 77. 63. The Polluter Pays Principle: Definition, Analysis, Implementation (OECD: Paris, 1975). 64. For a strict formulation of the polluter-pays principle see article 2(2)(b) OSPAR-Convention: ‘the polluter pays principle, by virtue of which the costs of pollution prevention, control and reduction measures are to be borne by the polluter’.

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A further development of the principle that transboundary harm should be avoided and of the duty to cooperate is provided by the duty to notify and consult contained in Principle 19 of the Rio Declaration, which provides that: [s]tates shall provide prior and timely notification and relevant information to potentially affected States on activities that may have a significant adverse tranboundary environmental effect and shall consult with those States at an early stage and in good faith.

A further specification of this duty has been included in numerous MEAs in the form of a so-called ‘prior informed consent procedure’. According to this procedure a product that may have an adverse impact on the environment may only be imported into a state if that state has given its permission in writing on the basis of information provided by the exporter, thus involving non-state actors in the implementation of global environmental law. Such procedures have been adopted with respect to trade in genetically modified products, pesticides, hazardous wastes and hazardous chemicals.65 A duty to notify also applies in cases of natural disasters or other emergencies that are likely to have a transboundary effect, as expressed in Principle 18 of the Rio Declaration. It has become generally accepted that environmental impact/risk assessment procedures are to be applied in evaluating activities that could result in significant negative effects on the environment. This principle is known as the duty of prior environmental impact assessment. It is reflected in Principle 17 of the Rio Declaration, which provides as follows: Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.

This principle also has been included in environmental treaties, most notably in the 1991 Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention), developed within the United Nations Economic Commission for Europe (UNECE).66 The Espoo Convention requires states to take into account possible transboundary effects when conducting an environmental impact assessment and requires them to facilitate the participation of 65. See for example Articles. 8-10, Cartagena Protocol to the Convention on Biological Diversity (29 January 2000, 11 September 2003, 2226 UNTS 208); Article 6, Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (22 March 1989, in force 5 May 1992, 1673 UNTS 57); and Articles 10-12 Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (10 September 1998, in force 24 February 2004, 2244 UNTS 337). 66. 25 February 1991, in force 10 September 1997, 1989 UNTS 309.

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concerned individuals and groups residing in states where such transboundary impacts may materialize. The Espoo Convention, furthermore, sets minimum standards for participation, both the national and tranboundary context. The ICJ in Gabčikovo-Nagymaros, furthermore, determined that the environmental impact of an activity should not only be assessed prior to that activity being engaged in but also, and especially in case of large projects, during the course of the activity. It provided that: [i]n order to evaluate the environmental risks, current standards must be taken into consideration. This is not only allowed by the wording of Articles 15 and 19, but even prescribed, to the extent that these articles impose a continuing – and thus necessarily evolving – obligation on the parties to maintain the quality of the Danube and to protect nature. …. Such new norms have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past.67

Another realization prominently reflected in global environmental law is that if we want to protect the environment and the related human interests, it helps to provide those most concerned, individuals and groups in society, with legal tools through which they can assert their rights and interests. This awareness has been translated into the principles of transparency, participation and access to justice, principles which also reflect intrinsic values associated with the rule of law.68 The first sentence of Principle 10 of the Rio Declaration reflects the notion behind these principles as follows: ‘[E]nvironmental issues are best handled with the participation of all concerned citizens, at the relevant level.’ Principle 10 subsequently develops what this entails at the national level only, and refers to the need for transparency, participation in decision-making and access to justice at that level. In addition, the Rio Declaration in principles 20-22 refers to the need to involve certain groups (major groups), such as women, youth and indigenous peoples in the development and implementation of environmental policy.69 As mentioned above, the participation principle has also been developed in the context of environmental impact assessment, in the Espoo Convention in particular. Access to justice further developed within the framework of the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention), developed within the United Nations Economic Commission for Europe (UNECE). The Aarhus Convention enables individuals and groups in society to submit a compliant against a state if it does not meet the standards that the convention sets for 67. Gabčikovo-Nagymaros, supra note 26, at para. 140. 68. See Jonas Ebbesson, ‘Public Participation’, in Handbook, supra note 1, 681-703. 69. On the special position of indigenous peoples see Russel Lawrence Barsh, ‘Indigenous Peoples’, Handbook, supra note 1, 829-852.

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transparency, participation and access to justice. It is also noteworthy that the Aarhus Convention requires its parties to promote the application of the principles contained in the convention ‘in international environmental decision-making processes and within the framework of international organizations in matters related to the environment.’70 The parties to the Convention elaborating on this provision, in 2005, adopted a decision that contains general recommendations on participation of concerned non-state actors in institutions that engage in the development of global environmental policy and law.71

3.4. Principles and Controversies The three types of principles and their implementation in MEAs discussed in this section of the essay reflect various interests and controversies that play a role in global environmental role. These controversies are interrelated, often intensely political, and regard especially: the role of science, the role of economic considerations, the appropriate role of non-state actors at the global level of decisionmaking and the South-North divide. The recent history of the climate change regime offers a good illustration of how intensely political discussions can be, also where science is concerned. The US administration rejected the Kyoto Protocol in 2001, based on the argument that the science behind it was disputed. The relevant science was provided by the highly participatory and consensus based Intergovernmental Panel on Climate Change (IPCC), the international body that aggregates scientific findings regarding climate change through its working groups and acts at the interface between science and policy. Eventually the US administration acknowledged that climate change was a problem, but continued to reject the Protocol based on the argument that measures as contained in the protocol would unduly prejudice US industry, especially in view of the fact that it does not impose emission reduction targets on more prosperous developing states such as China, Brazil and India. The United States thereby shifted its argument from one based on scientific considerations to one based on trade considerations. More recently, the relationship between trade and climate change has also surfaced in a new format in the negotiations on the successor to the Kyoto Protocol, with both the European Union and the United States suggesting that the introduction of Border Tax Adjustments (BTAs) might be an option if, at least, more prosperous developing states do not accept commitments under a new agreement.72 70. Article 3(7), Aarhus Convention (25 June 1998, in force October 2001 2161 UNTS 447). 71. Almaty Guidelines in Promoting the Application of the Principles of the Aarhus Convention in International Forums, Annex to Decision II/4, Report of the Second Meeting of the Parties, Doc. ECE/MP.PP/2005/2/Add.5 (20 June 2005). 72. Carloyn Fischer and Alan K. Fox, ‘Comparing Policies to Combat Emission Leakages: Border

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As to the role of non-state actors in developing environmental policies, relevant principles and also treaties foresee a role for them primarily at the national level by requiring states to introduce transparent and participatory policies and provide access to justice. The Aarhus Convention provides access to justice for individuals and groups at the international level by way of its compliance mechanism. The aim of this procedure, however, is primarily to bring the relevant state back into compliance and not to provide remedies to affected individuals or groups, even if this may be an outcome of its recommendations. Addressing transparency, participation and access to justice with respect to global institutions, however, remains controversial. The South-North controversy, as the discussion of the Rio Declaration illustrates, permeates global environmental law. It concerns the allocation of cost to protect the environment in view of the dire need for development in developing states and the fact that developed states gained much of their wealth at great cost to the environment. Concomitantly, this controversy also focuses on the financial mechanisms attached to MEAs and on who decides, with developing states advocating decision-making in MEAs and developed states advocating a role for global financial institutions, the World Bank in particular. As a result, pressure on the World Bank to reform its decision-making process and patterns, especially by developing states, continuous to surface. It is this controversy that the rest of my lectures focused on. While the principles of global environmental law to a great extent harbor the promise of justice, as reflected in particular in the principle of sustainable development and the principle of common but differentiated responsibilities, the decision-making processes and procedures of global environmental law take away from that promise by providing a prominent role for the World Bank, and institutions linked to the World Bank, in the implementation of MEAs in developing states.

4. The Structure of Decision-Making and the South-North Context At the basis of most of contemporary global environmental law are various MEAs. Most of these agreements, such as the Convention on Biological Diversity and the UNFCCC, were concluded in the form of a framework agreement, which provides the basic principles and institutions that form the basis for the further development of the regime.73 Protocols, such as the 1997 Kyoto Protocol and

Tax Adjustments versus Rebates’, RFF Discussion Paper No. 09-02. Available at SSRN: (visited 29 April 2009). 73. See Geir Ulfstein, ‘Treaty Bodies’, in Handbook, supra note 1, at 877.

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the 2000 Cartagena Protocol on Biosafety,74 and decisions adopted by the conference of the parties to the framework agreement further develop the regime.75 All MEAs contain provisions committing developed states to transfer funds and technology to developing states.76 Within MEAs, each state has one vote and while most decisions within MEAs are taken by consensus, some decisions may be taken by qualified majority vote.77 Particularly noteworthy from a classical international legal point of view, however, is the fact that most of the decisions taken within the framework of MEAs are legally non-binding, even if they may affect the rights of states and of individuals and groups operating within the contours of the regime in question.78 A relevant example is the body of rules adopted within the framework of the Kyoto Protocol that determine whether a state party and its nationals are entitled to participate in the flexible mechanisms of the Kyoto Protocol, including trade in emission reduction unites.79 This development entails a significant departure from classical international law, in which a state is assumed to be bound by a rule or set of rules in the form of a treaty only if that state formally has consented to that rule or treaty or if a constituent treaty expressly attributes the competence to adopt legally binding rules to a global institution, such as the United Nations Charter to the Security Council.80 It is this manner of decision-making that has given rise to questions regarding the legitimacy of global environmental law in general.81 In the South-North context, issues of legitimacy, however, primarily arise because of the manner in which global environmental law constructs the relationship between developed states and global institutions, on the one hand, and developing states, on the other hand. This is because an important element of MEA-based regimes, the transfer of funds and technology from developed to developing states, is implemented via institutions located outside the MEAregime as such. With this institutional relocation, a shift in the decision-making patterns takes place to the detriment of developing states: the one-state, one vote system of MEAs is replaced by a system of weighted voting used in the World 74. Protocols respectively to the UNFCCC and the Biodiversity Convention. 75. E.g. The CBD Handbook, (visited 29 April 2009), which contains all decisions taken by the parties to implement the Biodiversity Convention and Cartagena Protocol. Similar handbooks are available for other MEAs. 76. See text at and following supra note 28. 77. E.g. article 9(2) of the Montreal Protocol allows parties to amend certain aspects of the annexes to the protocol by a two-thirds majority vote. 78. See Stephen J. Toope, ‘Formality and Informality’, in Handbook, supra note 1, 107-124. 79. E.g. Decision 2/CMP.1 on the Principles, Nature and Scope of the Mechanisms Pursuant to Articles 16, 12 and 17, adopted by the parties to the Kyoto Protocol in 2005. 80. Also see, Ellen Hey, Teaching International Law. State-Consent as Consent to a Process of Normative Development and Ensuing Problems, inaugural lecture (Kluwer Law International: The Hague, 2003). 81. See Daniel Bodansky, ‘Legitimacy’, in Handbook, supra note 1, 704-723.

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Bank and related institutions as well as by the considerable power that the World Bank itself is able to wield. The World Bank, the Global Environment Facility82 (GEF), and other funds administered by the bank are particularly relevant in this context. The World Bank, for example, is the largest financier of biodiversity projects that serve, among other things, to implement the Convention on Biological Diversity in developing states.83 The GEF functions as the financial mechanism for most MEAs and is subject to the guidance of the conferences of the parties of MEAs and the guidelines adopted by the GEF itself. However, the GEF in its pilot phase was subject solely to the decision-making processes and procedures of the World Bank, in which developed states have a major say. It was during this phase that some of the basic rules of the game governing the operation of the GEF were fleshed out. Due to political pressure from developing states in the early 1990’s, the GEF has been restructured, with developing and developed states now sharing decision-making power more equally.84 Only after the renewed GEF emerged were developing states willing to accept it as the financial mechanism for the Convention on Biological Diversity and the UNFCCC. Similar to the GEF, the Prototype Carbon Fund (PCF), established by the World Bank in 1999, to a large extent fleshed out the rules of the game for the implementation of the flexible mechanisms of the Kyoto Protocol, the Clean Development Mechanism (CDM) and joint implementation (JI), in particular. The CDM seeks to implement the Kyoto Protocol through projects in developing states financed by developed states; JI seeks to implement the Protocol through projects amongst developed states and by developed states in economy in transition states. In the context of the World Bank, JI is relevant for the latter type of projects only. In the PCF both developed states and private companies from developed states participate in decision-making relative to their financial input into the fund.85 The PCF and similar funds86 have played a decisive role in developing the global carbon market. However, developing states, the providers of the raw product (greenhouse gas emissions), only have a marginal say in the decision-making processes of the PCF. Developed states and private companies from developed states, the providers of the financial means to realize the reductions, hold decision-making power and obtain valuable carbon units that they can use to meet their commitments under the Kyoto Protocol or trade on the 82. The GEF is administered by the World Bank, even if established jointly by the World Bank, UNEP and UNDP. 83. See (visited 29 April 2009). 84. See Nele Matz, ‘Financial Institutions between Effectiveness and Legitimacy – A Legal Analysis of the World Bank, the Global Environmental Facility and the Prototype Carbon Fund’, 5 International Environmental Agreements (2005) 265-302. 85. Ibid. 86. See (visited 29 April 2009).

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global carbon market, established on the basis of the Protocol. Moreover, the reductions in greenhouse gasses achieved through these funds, besides benefiting the states in which the projects are executed, also benefit the wider global community, including developed states. The World Bank as such and through the various funds that it administers, thus, has become a central player in global environmental law when it comes to the implementation of MEAs in developing states. In fact, the implementation of the principle of common but differentiated responsibilities and in particular the commitment on the part of developed states to transmit technology and financial resources to developing states to a large extent have been outsourced to an entity in which developing states have limited influence on decision-making. This is why during the early 1990’s, developing states wished to see the GEF restructured, before accepting it as the financial mechanism for MEAs. Moreover, to the extent that non-state actors participate in formal decision-making in the PCF and other funds, these non-state actors are companies from developed states: an innovative development undoubtedly. Does it lead to a legitimate decisionmaking structure? I doubt it.

5. Conclusion: Global Environmental Law a Mismatch Between Principles and Institutional Structure As mentioned above, principles of global environmental law that relate to the relationship between developing and developed states harbor the promise of justice. However, the institutional structure that serves to implement these principles reflects a divide between developing and developed states, which is associated with the legacy of colonialism. In particular, decision-making processes and procedures applicable in the World Bank and associated institutions reflect the dominant position of developed states vis-à-vis developing states. This situation suggests that in moving from Rio, through Kyoto and Cartagena, to Washington DC,87 global environmental law lost legitimacy, especially in the eyes of developing states. This situation, I suggest, entails that we will continue to grapple with common interest problems because important and large parts of the global community do not or only marginally participate in decision-making. I also suggest that as a result of this situation, consensus about the nature of the common interest problems at stake is likely to be very thin. Unless more equal participation of developing states, and where relevant non-state actors from developing states, is attained at the global level of decision-making, there will be fundamental disagreement about the aims of global environmental law, which will not be regarded as a system of law that meets standards of justice, or serve to 87. Or, from the Rio Declaration and MEAs, via their protocols, to the World Bank.

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protect the environment. Streamlining the exercise of public power at the global level on the basis of proper principles of administration regarding accountability and involving transparency, participation and access to justice, may serve the various purposes mentioned in the previous sentence. If achieved, the route will be a rough one due to the fact that developing states will be able to defend what they consider to be their interests. However, due to the fact that the playing field will be more level, we might also see a thicker consensus emerge about the common interest problems that we are seeking to address and thus hopefully more robust policies to tackle them. It is in this context noteworthy that in November 2009, when reviewing this essay, World Bank reform, including better representation for developing states, is on the agenda.88 Whether ongoing negotiations will be able to overcome the legacy of colonialism that has plagued the World Bank, but also the International Monetary Fund as well as other global institutions, of course is relevant not only for the future of global environmental law, but for global administrative law more in general.

88. See (visited 21 November 2009).

Fragmented Landscapes, Troubled Relationships: The WTO Dispute Settlement System and International Environmental Law Kati Kulovesi∗ ABSTRACT: The World Trade Organization (WTO) and its uniquely powerful dispute settlement system have come to play an important role in international disputes involving environmental issues. This has not, however, been intentional and many challenges have emerged due to the limited competence of the WTO in the environmental field. This paper focuses on interaction between WTO law and international environmental law in light of the lively doctrinal debate on the competence by the WTO dispute settlement system to apply non-WTO norms. It also analyses the role of international environmental law in WTO jurisprudence. Having identified several questions and uncertainties in the Shrimp-Turtle and Hormones cases, the paper examines the state-of-play in light of the recent Biotech panel report. It argues that the WTO dispute settlement system could have eased some of the tensions in the borderline between the two specialised areas of international law without stretching the limits of its judicial mandate through more rigorous legal analysis and a more consistent and transparent approach to international environmental norms. However, some of the main conclusions of this paper include that the WTO dispute settlement system has failed to do so and that several problems remain in the relationship between the WTO dispute settlement system and international environmental law. KEYWORDS: WTO, dispute settlement, environment, fragmentation, precautionary principle ∗

Affiliated Research Fellow, the Erik Castrén Institute of International Law and Human Rights, University of Helsinki. This paper is based on my lectures at the Helsinki Summer Seminar in August 2008. It also reflects some of the conclusions from my Ph.D. thesis on the legitimacy of the WTO dispute settlement system, approved by the London School of Economics and Political Science in 2008. I am therefore grateful for my supervisor, Veerle Heyvaert, and for the comments by the members of my viva panel, Ilona Cheney and Joanne Scott, and by two anonymous reviewers.

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1. The WTO Dispute Settlement System and Environmental Issues The World Trade Organization (WTO) and its uniquely powerful dispute settlement system have come to play an important role in international disputes involving environmental and health issues. This situation is, however, far from uncontroversial. In the beginning of the 1990s, two dispute settlement panels established under the General Agreement on Tariffs and Trade (GATT) condemned an import prohibition by the US on tuna caught by fishing techniques that resulted in incidental killings of dolphins.1 The Tuna-Dolphin decisions caused a remarkable backlash against the world trading system. Environmentalists attacked the two unadopted panel reports arguing that they pointed towards a substantive bias and institutional discrepancy in favour of free trade. The WTO dispute settlement system, created in 1995, thus inherited the challenge of responding to these accusations and ‘balancing’ trade and environmental protection while bearing in mind that the WTO ‘is not an environmental protection agency and does not aspire to be one’.2 It has had several opportunities to do so – but the argument here is that despite some positive advances, the success of the WTO dispute settlement system in negotiating the fragmented landscape of international trade rules and international environmental law remains modest. Some of the most famous ‘linkages’ cases in the WTO era include the ShrimpTurtle case, which focuses on an import ban on shrimp by the US to protect sea turtles.3 By concluding that the US measure was compatible with the GATT and referencing several international environmental instruments, this case was in many ways a landmark in the relationship between the WTO and the environment. The argument here is, however, that the case also left unanswered many doctrinal questions on the status of international environmental law at the WTO. Another famous linkage case concerns a prohibition by the European Union (EU) on meat produced with the aid of growth Hormones. While the dispute focuses on health issues, it also considered in detail the relevance of the precautionary principle in WTO dispute settlement proceedings. The precautionary principle is a concept that has been developing mainly under international environmental law to justify action in the face of scientific uncertainty. In a controversial move, in Hormones, 1.

2. 3.

GATT panel report, United States–Restrictions on Imports of Tuna (Mexico), BISD 39S/155, 3 September 1991. Unadopted. GATT panel report, United States-Restrictions on Imports of Tuna (European Economic Community), GATT document DS29/R,11 October 1994. Unadopted. Doaa Abdel Motaal, ‘Trade and Environment in the World Trade Organization: Dispelling the Misconceptions,’ 8 Review of European Community and International Environmental Law 3 (1999) 330-335 at 330. WTO Appellate Body report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, 12 October 1998 (Shrimp-Turtle).

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the Appellate Body rejected the relevance of the precautionary principle when interpreting the WTO Agreement on Sanitary and Phytosanitary Measures (SPS Agreement).4 In March 2008, a panel found that there was no scientific justification for the EU’s health measures against hormone beef in a related dispute focusing on the validity of trade sanctions applied to European exports by the US and Canada.5 In the autumn of 2006, a WTO dispute settlement panel ruled on the Biotech dispute, finding that the de facto moratorium on genetically modified products by the EU violated WTO law.6 The panel also concluded that the precautionary principle, the Convention on Biological Diversity (CBD) and its Cartagena Protocol on Biosafety were not relevant to the dispute. In 2007, dispute settlement reports were adopted concerning an import ban on retreated tyres by Brazil based on their adverse health and environmental impacts.7 The dispute was interesting in that it involved a developing country invoking health and environmental protection as justifications for taking trade measures against developed countries. Traditionally, the focus in the trade and environment debate has been on environmentally motivated trade measures and ‘green protectionism’ by developed countries against developing countries and the Brazilian Tyres dispute therefore challenges that conventional view. Several potential new disputes are looming around the corner. A WTO panel may also be established concerning the recent European ban on certain seal products. According to Canada, the trade ban violates WTO rules and has important implications on the livelihood of indigenous people.8 Numerous trade-related policies and measures are also being contemplated and implemented to mitigate climate change. The EU, for instance, will be imposing strict sustainability standards for both domestically produced and imported biofuels in order to address environmental concerns, such as deforestation, loss of biodiversity and the often modest impact of biofuels on reducing greenhouse gas emissions.9 In order to respond to domestic concerns over competitiveness and to avoid carbon leakage, the EU and the US have contemplated measures on products imported 4. 5. 6. 7. 8. 9.

WTO Appellate Body report, European Community – Measures Concerning Meat and Meat Products, WT/DS26/AB/R and WT/DS/48/AB/R, 16 January 1998 (Hormones). WTO Panel report, United States – Continued Suspension of Obligations in the EC-Hormones Dispute, WT/DS320/R, 31 March 2008. WTO Panel report, European Community – Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R, WT/DS292/R, WT/DS293/R, 29 September 2006 (Biotech). WTO Appellate Body report, Brazil – Measures Affecting Imports of Retreated Tyres, DS332/ AB/R, 3 December 2007. Request for consultations by Canada on European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/1, 2 November 2009. Article 17 in the European Parliament legislative resolution of 17 December 2008 on the proposal for a directive of the European Parliament and of the Council on the promotion of the use of energy from renewable sources (COM(2008)0019 – C6-0046/2008 – 2008/0016(COD)).

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from countries that have not adopted comparable measures to mitigate climate change. One possibility would be to require the importers to purchase emission allowances.10 It is easy to see how such measures could be challenged in the WTO dispute settlement system. While it is thus clear that the WTO dispute settlement system plays de facto an important role in adjudicating conflicts between trade interests and environmental protection, this is not intentional and has therefore sparked political controversy and doctrinal debates. One of the main themes concerns the role of international environmental law (and other non-WTO rules) in the WTO dispute settlement system. The prevailing legal view is that as a trade body, the competence of the WTO dispute settlement system to consider international environmental norms is limited. In fact, as it will be seen below, influential WTO scholars argue that the WTO dispute settlement system is never competent to directly apply international environmental norms. Given that the WTO is in most cases the only judicial forum available for settling a dispute involving trade and environmental protection, such an approach threatens to place international environmental law and international trade law on an uneven footing. While both specialised areas of international law are formally equally valid, the institutional strength of the trade regime and the absence of similar environmental bodies mean that trade law is given a more through consideration and plays a stronger role in the resolution of ‘linkages’ disputes. However, from the political perspective, any attempts by the WTO dispute settlement system to stretch the boundaries of the trade regime to other policy fields risks irritating WTO Member States and jeopardising their faith in the institutions governing the world trading system. Most WTO scholars are therefore cautious about such proposals. Since the famous WTO Ministerial Meeting in Seattle in 1999, several public protests have also been held against the WTO, which many protestors see as an institution that promotes hard-line neoliberal globalization and robs power from the local level to the supranational one where its use is not subject to adequate checks and balances. Although the protests have often taken extreme manifestations, underlying are some valid concerns over the lack of democratic accountability, transparency and possibilities for public participation in decision-making that concerns subject matters of a great public interest. Hence the need for the WTO to be cautious about expanding its substantive territory. The doctrinal side of the dilemma is, then, that limiting the role of the WTO dispute settlement system in the environmental field brings to the fore, among 10. See, for example, Articles 10a and 10b in European Parliament legislative resolution of 17 December 2008 on the proposal for a directive of the European Parliament and of the Council amending Directive 2003/87/EC so as to improve and extend the greenhouse gas emission allowance trading system of the Community (COM(2008)0016 – C6-0043/2008 – 2008/0013(COD))

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other things, concerns about fragmentation of international law. Fragmentation can be seen as the somewhat paradoxical consequence of globalisation that in addition to its harmonising force, globalisation has also lead to functional differentiation and the emergence of specialised and relatively autonomous social spheres.11 Thus, what once appeared to be the domain of ‘general international law’ has now dissolved into highly specialised systems such as ‘trade law’, ‘human rights law’, ‘environmental law’, ‘law of the sea’, and even ‘international refugee law’, and ‘investment law’.12 These developments have challenged the unity of international law, and the relationship and interaction between its specialised fragments. As the International Law Commission has indicated: Each rule-complex or ‘regime’ comes with its own principles, its own form of expertise and its own ‘ethos’, not necessarily identical to the ethos of neighbouring specialization. ‘Trade law’ and ‘environmental law’, for example, have highly specific objectives and rely on principles that may often point in different directions.13

For all these reasons, it is clear that the WTO dispute settlement system is facing several challenges and pressures. Environmentalists and other policy groups are strongly advocating for non-trade interests to be given a more prominent role at the WTO. At the same time, many WTO members, especially developing countries, are worried about ‘green protectionism’ and the imposition of environmentally-motivated trade barriers. They are strongly opposing attempts to expand the boundaries of the organization, especially through the dispute settlement mechanism. Finally, the WTO dispute settlement system has come to play an important role in the doctrinal debate about fragmentation of international law. From that perspective, arguments favouring the unity of WTO law have been contrasted with arguments by those favouring the unity of international law as a whole. Against this background, this paper focuses on challenges characterizing interaction between two prominent fragments of international law: WTO law and international environmental law. It begins by reviewing the key institutional features of the WTO dispute settlement system, as well as the lively doctrinal debate on the system’s competence to apply non-WTO norms. In light of the theoretical views, it first analyses the status of international environmental law in the early WTO jurisprudence, namely in the Shrimp-Turtle and Hormones cases. Having identified several questions and uncertainties, it then examines the state-of-play in light of the Biotech panel report. While acknowledging con11. International Law Commission, 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 (A/CN.4/L.682, 13 April 2006) at 11. 12. Ibid., at 11. 13. Ibid., at 14.

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flicting views on the role of the WTO dispute settlement in the environmental field, this paper argues that the WTO dispute settlement system could have eased some of the tensions in the borderline between the two specialised areas of international law without stretching the limits of its judicial mandate. In more specific terms, it could have achieved this through more rigorous legal analysis and a more consistent and transparent approach to international environmental norms. However, some of the main conclusions here include that the WTO dispute settlement system has failed to do so and that several problems remain in the relationship between the WTO dispute settlement system and international environmental law. The Shrimp-Turtle took some positive steps towards bridging the gap between international trade and environmental communities – but it also left open many doctrinal questions on the status of international environmental norms at the WTO. The Hormones and Biotech decisions, however, showed a restrained attitude towards international environmental law and therefore there is currently no solid basis for constructive interaction between these two fragments of international law.

2. The WTO Dispute Settlement System The WTO dispute settlement system, created in 1995, was one of the key outcomes of the Uruguay Round of trade negotiations. In contrast to the largely diplomatic and policy-oriented dispute resolution during the GATT era, the WTO dispute settlement mechanism can be characterised as a quasi-judicial forum with a compulsory and exclusive jurisdiction in the field of WTO law and a mandate to authorise trade sanctions against non-complying states. The revised system has also proved highly popular and since its creation, it has been utilised with an unprecedented frequency. Many scholars have even argued that the WTO system is now ‘constitutionalizing’.14 These reforms have had some interesting impacts on the international legal landscape. They have strengthened the status of the WTO regime in relation to other areas of international law, most of which are lacking effective dispute settlement and enforcement mechanisms. Such institutional discrepancies are particularly evident in the relationship between the WTO and international environmental law. Esty has argued that: In contrast to the international trade regime… the management of international environmental affairs has little structure and is marked by policy gaps, confusion, duplication and incoherence. A dozen different UN agencies, the secretariats to a number of environmental treaties and conventions, the World Bank, regional

14. For an excellent overview of such debates, see Deborah Z. Cass, The Constitutionalization of the World Trade Organization. Legitimacy, Democracy and Community in the International Trading System (Oxford University Press, 2005).

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political groups, and the world’s 190 countries acting individually try to cope with the planet’s environmental problems.15

For international environmental governance and institutions, little has changed since Esty wrote his assessment in the early 1990s. In contrast, the institutional structure of the trade regime has been significantly strengthened, highlighting discrepancies between international environmental law and international trade law. The challenge is therefore to figure out how these two specialised areas of international law could coexist in harmony under such circumstances, and interact in a constructive way that does justice to their equally valid but not necessarily fully compatible claims to authority. One of the key problems in this regard is that while the WTO dispute settlement system has a compulsory and exclusive jurisdiction in the field of WTO law, most scholars argue that it is not competent to apply other rules of international law. However, it is often the only forum available for adjudicating linkage disputes where also international environmental norms would be relevant. This has sparked a lively, albeit somewhat technical debate concerning the role of non-WTO rules of international law in the WTO dispute settlement. This section provides an overview of the legal considerations that affect the relationship between the WTO dispute settlement system and international environmental law. It first outlines the key institutional features of the WTO dispute settlement system. It then discusses the substantive competence and limits of the WTO dispute settlement system and reviews the key scholarly positions concerning the applicability of such rules of international law that are not included in the WTO Agreements.

2.1. Institutional Features and Competence of the WTO Dispute Settlement System The system for settling international trade disputes has gone through an important transformation. During the GATT era, dispute resolution evolved from the first ruling given by the chairman in 1948, through the consideration of disputes by working parties, and finally to three- or five-member panels giving expert opinions.16 As the GATT system operated on a basis of a consensus rule, the losing party could block the adoption of an adverse report.17 While in most cases it eventually accepted the result, ‘blocking’ remained a problem and ‘seemed to be occurring with increasing frequency in the 1980s’.18 In a marked 15. Daniel C. Esty, Greening the GATT. Trade, Environment and the Future (Institute for International Economics: Washington DC, 1994) at 78. 16. David Palmeter and Peter C. Mavroidis, Dispute Settlement in the World Trade Organization. Practice and Procedure (2nd edn, Cambridge University Press, 2004) at 7. 17. Ibid., at 9. 18. Ibid.

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contrast, under the new WTO dispute settlement system, the adoption of panel and Appellate Body reports can only be prevented by a consensus. The move to the negative consensus rule was one of the most significant changes making the WTO dispute settlement system the exceptionally powerful international judicial body that it is today. The WTO dispute settlement system is regulated by the Understanding on the Rules and Procedures Governing the Settlement of Disputes (DSU). According to Article III:2 of the WTO Agreement the DSU is ‘an integral part of this Agreement, binding on all Members’. This means that its jurisdiction is compulsory for all WTO Member, something remarkable under international law where states have traditionally been reluctant to agree to a compulsory judicial-type dispute settlement. The jurisdiction of the WTO dispute settlement system is also exclusive in the sense that WTO-related disputes can only be litigated before WTO adjudicating bodies, and only WTO adjudicating bodies can decide if WTO violations exist.19 Institutionally, the WTO dispute settlement system is made up of ad hoc panels, a permanent Appellate Body and the Dispute Settlement Body (DSB). New and distinct panels are established for each individual case and they are composed of three experts selected from a roster.20 The Appellate Body, in turn, is a permanent body with seven members appointed for a term of four years. The DSB consists of representatives of all WTO member states. In theory, WTO Members thus retain political oversight over the dispute settlement system. However, as indicated above, the DSB makes decisions on the basis of a negative consensus rule. In practice this means that it always adopts the reports by the panels and the Appellate Body – and the power of the DSB not to establish a panel or adopt a report is ‘more illusory than real’.21 The main function of the DSB is thus to serve as a forum where matters of dispute are discussed.22 The WTO dispute settlement proceedings are often characterized as ‘quasijudicial’. This is because especially during the panel stage, many features distinguish WTO proceedings from the functioning of an ordinary court, and are more reminiscent of arbitration.23 The parties agree on the panels’ ‘terms of reference,’ which are crucial in determining the matters over which the panel 19. Gabrielle Marceau, ‘Consultations and the Panel Process in the WTO Dispute Settlement System’, in Rufus Yerxa and Brucen Wilson (eds), Key Issues in WTO Dispute Settlement. The First Ten Years (Cambridge University Press, 2005) 29-46 at 30. 20. Bruce Wislon, ‘The WTO Dispute Settlement System and Its Operation,’ in Rufus Yerxa and Bruce Wilson (eds), Key Issues in WTO Dispute Settlement. The First Ten Years (Cambridge University Press, 2005) 15-24 at 18. 21. Palmeter and Mavroidis, Dispute Settlement in the World Trade Organization, supra note 16, at 15. 22. Ibid. 23. Georges Abi-Saab, ‘The WTO Dispute Settlement and General International Law’, in Rufus Yerxa and Bruce Wilson (eds), Key Issues in WTO Dispute Settlement. The First Ten Years (Cambridge University Press, 2005) 7-12 at 9.

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has jurisdiction.24 Furthermore, the disputing parties are given the opportunity to comment on the initial panel report, which is clearly not the case in ordinary court proceedings. Also the fact that the member states play an important role in selecting the ad hoc panellists is relevant: in courts, the disputing parties do not have the same degree of control over the appointment of judges.25 The appellate stage is, however, remarkably different.26 First, the Appellate Body is a standing body with permanent membership. Second, it can only examine the points of law, while points of fact are not appealable.27 It has been argued that: the Appellate Body has a kind of supreme court jurisdiction to control the interpretation and application of law. Here we are in the presence of not only of a judicial system, but very developed judicial system of judicial control of legality. The procedure is that of a judicial body.28

In practical terms, the Appellate Body has the final say in a dispute settlement process: Even if the Appellate Body makes a mistake, there is no mechanism to correct it. In a domestic jurisdiction, if the Supreme Court makes a mistake, the legislature can enact a law to correct it. However, in the WTO process the political branch (the General Council and the Ministerial Conference) does not commonly exercise this power. This means that there are no effective ‘checks and balances’ operating within the WTO.29

These are the key features that have made the WTO dispute settlement system an exceptionally strong dispute settlement mechanism measured by international standards. It is also one that has been used frequently. During its first decade from 1995 to 2005, some 324 cases were addressed through the WTO dispute settlement system, amounting to an average of 30 new cases a year.30 About half of the complaints (159) resulted in the establishment of 129 panels by the DSB.31 The DSB adopted 83 panel reports, 56 Appellate Body reports, 12 implementation review panel reports, 8 implementation review Appellate Body reports, and circulated 16 arbitration reports regarding retaliation.32 This makes 24. Gabrielle Marceau, ‘Consultations and the panel process in the WTO dispute settlement system,’ supra note 19, at 32. 25. Decision of the European Ombudsman of 11 July 2006 on complaint 582/2005/PB against the European Commission. 26. Georges Abi-Saab, ‘The WTO Dispute Settlement and General International Law’, supra note 23, at 9-10. 27. Ibid. 28. Ibid. 29. Mitsuo Matsushita, Thomas J. Schoenbaum and Peter C. Mavroidis, The World Trade Organization. Law Practice and Policy (2nd edition, Oxford University Press, 2006) at 43. 30. Bruce Wilson, ‘The WTO Dispute Settlement System and Its Operation’, supra note 20, at 20. 31. Ibid. 32. Rufus Yerxa, ‘The Power of the WTO Dispute Settlement System’ in Rufus Yerxa and Bruce

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the WTO dispute settlement system exceptionally popular in comparison with other international courts and tribunals. The case list of the International Court of Justice, for example, has contained 144 cases between May 1947 and April 2009. Furthermore, many of those cases never reached the merits phase due to the failure by the complainant to establish the jurisdiction of the Court. Such jurisdictional hurdles are, however, absent from the WTO. While they were undoubtedly beneficial to the evolution of the international trade regime, the institutional strength of the WTO dispute settlement system and its compulsory jurisdiction have also brought to the fore many significant challenges. One of the most pressing ones relates to the substantive scope of the system and its competence to consider and apply such rules of international law that are not included in the WTO Agreements. In the GATT era, it was often argued that international trade law constituted a separate legal regime. Currently the picture is quite different. In one of its first rulings, the WTO Appellate Body famously emphasised that the GATT ‘is not to be read in clinical isolation from public international law’.33 In the Shrimp-Turtle dispute, the Appellate Body gave this statement a more concrete expression and generously referred to a number of international environmental instruments.34 As a result, the argument that the WTO system forms a closed system is no longer plausible but WTO law is now commonly considered as a lex specialis system, in other words, a specific subsystem of international law.35 This system has been characterised as largely, but not entirely, self-contained.36 Thus, WTO law is ‘an important part of the larger system of public international law’37 that must ‘evolve and be interpreted consistently with international law’.38 The International Law Commission has pointed out: Even if it is clear that the competence of WTO bodies is limited to consideration of claims under the covered agreements (and not, for example, under environmental or human rights treaties), when elucidating the content of the relevant rights and obligations, WTO bodies must situate those rights and obligations within the

33. 34. 35. 36. 37. 38.

Wilson, (eds), Key Issues in WTO Dispute Settlement. The First Ten Years (Cambridge University Press, 2005) 3-6 at 5. WTO Appellate Body report, United States – Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, 29 April 1996, at 18. See the detailed discussion below. Gabrielle Marceau, ‘WTO Dispute Settlement and Human Rights’, 14 European Journal of International Law 4 (2002) 753-814 at 755. Mitsuo Matsushita et al., The World Trade Organization. Law Practice and Policy, supra note 29, at 76. Ibid., They argue that this is reflected by the use of interpretative principles of public international law, and also by increasing recourse to the other traditional sources of public international law. Garbrielle Marceau, ‘WTO Dispute Settlement and Human Rights’, supra note 35, at 755.

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overall context of general international law (including the relevant environmental and human rights treaties).39

The question remains, however, how the ‘overall context of general international law’ plays a role at the WTO and what exactly is the role of international law in the WTO dispute settlement system.

2.2. International Law in the WTO Dispute Settlement System International law is commonly divided into two categories based on its role in the WTO dispute settlement system. The first and clearest category has been labelled as ‘the incorporated international law’. The second, more contentious one encompasses general principles of law, customary international law as well as international treaties not explicitly referred to in the WTO Agreement. Here this category will be referred to as ‘non-WTO norms’ or ‘non-WTO law’. ‘Incorporated international law’ consists of such rules that have been incorporated into the WTO system by explicit reference. The WTO Agreement on Trade Related Aspects of Intellectual Property Rights, which assimilates provisions of the international intellectual property conventions, namely the Berne Convention of 1971, the Paris Convention of 1967 and the Rome Conventions is an obvious and important example. Also the customary rules of treaty interpretation have been incorporated into the body of WTO law through Article 3.2 of the DSU. These rules have been codified in the Vienna Convention on the Law of Treaties (VCLT), which has also been frequently referred to in WTO jurisprudence. It is undisputed that WTO panels and the Appellate Body are competent to apply any incorporated international rules if a dispute requires them to do so. Such norms have effectively become a part of ‘the corpus of WTO law and thus serve as a direct source of law in WTO dispute settlement proceedings’40. The relationship between the second category of international law and the competence of the WTO dispute settlement system is far more complicated. In theory, non-WTO norms of international law could play a role in the WTO dispute settlement system in three different ways: through direct application, as a source of interpretative material, or as factual evidence. Scholars currently disagree as to whether the WTO dispute settlement system may directly apply non-WTO norms.41 Marceau, Trachtman and others interpret the substantive competence of the WTO dispute settlement system in a restrictive manner. In 39. International Law Commission, Fragmentation of International Law, supra note 11, at 9091. 40. Matthias Oesch, Standards of Review in WTO Dispute Resolution (Oxford University Press, 2003) at 210. 41. Compare Joel P. Trachtman, ‘The Domain of the WTO Dispute Resolution’, Harvard International Law Journal (1999) 333-377 at 343; and Gabrielle Marceau, ‘WTO Dispute Settlement and Human Rights’, supra note 35, with Joost Pauwelyn, ‘The Role of Public International

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their view, law applicable in WTO dispute settlement is restricted to the covered agreements and incorporated international law. Non-WTO norms of international law cannot be directly applied. Others, such as Pauwelyn, are advocating a more interactive and flexible approach to the boundaries between the WTO system and other norms of international law. The relevant WTO dispute settlement practice has been invoked to support both of the different views and the situation thus seems far from clear.42 The main legal arguments concerning the three theoretical options for WTO norms to interact with other international norms will be explained below.

2.3. Debates over the Direct Applicability of Non-WTO Norms According to Article 1.1 of DSU, its provisions apply to disputes ‘brought pursuant to the consultation and dispute settlement provisions of the agreements listed in Appendix 1 to this Understanding’, in other words, disputes concerning the ‘covered agreements’. The reference to ‘covered agreements’ is repeated in Articles 7.2 and 11 of the DSU. According to Article 7.2, panels ‘shall address the relevant provisions in any covered agreement or agreements cited by the parties to the dispute’. Article 11 of the DSU indicates that the panels: should make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements, and to make such other findings as will assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements.

Also Article 3.2 of the DSU is important in defining the scope of the WTO dispute settlement system: Recommendations and rulings of the DSB cannot add or diminish the rights and obligations provided in the covered agreements.

A group of influential WTO scholars interprets the references to ‘covered agreements’ in Articles 1.1, 7.2 and 11 of the DSU as well as the wording ‘cannot add or diminish the rights and obligations provided in the covered agreements’ in Article 3.2 as clear limits to the law applicable by the WTO dispute settlement system. According to Marceau: the application (or direct effect) of non-WTO law provisions into the WTO legal system will always lead to an addition to or diminution of the covered agreements.43 Law in the WTO: How Far Can we Go?’, 95 American Journal of International Law 3 (2005) 535-578 at 568 et seq. 42. For an overview, see also Anja Lindroos and Michael Mehling, ‘Dispelling the Chimera of ‘‘Self-Contained’’ Regimes’, 16 European Journal of International Law 5 (2006) 857-877. 43. Gabrielle Marceau, ‘WTO Dispute Settlement and Human Rights’, supra note 35, at 777.

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She thus argues that WTO adjudicating bodies are not competent either to reach any formal conclusions on the violation of non-WTO norms or to require any positive action pursuant to them.44 In a similar vein, Trachtman argues that the mandate ‘is clear: apply (directly) only WTO law’.45 In his view, the language used in the DSU ‘would be absurd if rights and obligations arising from other international law could be applied’.46 What may perhaps be seen as the prevailing view on the relationship between the WTO system and other norms of international law can thus be summarised as follows: WTO adjudicating bodies cannot formally interpret other treaties and customs and thus cannot apply or enforce other treaties or customs or determine the legal consequences of rights and obligations that WTO Members may have under other treaties or by custom; these may be examined only when necessary for the interpretation of WTO law and/or as a factual determination.47

There are, however, other interpretations. Pauwelyn argues that unless an international treaty explicitly contracts out of general international law, general international law automatically applies to the regime created and fills gaps left by the treaty.48 Since the WTO Agreement contains no such ‘contracting out’ provision, Pauwelyn argues that it is unnecessary for the DSU to explicitly refer to general international law as a source of law: the WTO system is automatically part of general international law.49 He also argues that the expression ‘cannot add or diminish rights and obligations’ in Article 3.2 of the DSU does not limit the competence of the WTO dispute settlement system in terms of applicable law.50 Instead, it constrains the interpretative powers of the WTO dispute settlement system by setting out the limits of the judicial function.51 What follows is that the WTO dispute settlement system can apply but not enforce non-WTO rules.52 Pauwelyn makes three important points in this regard: Firstly, the interplay with WTO rules and other rules of international law will not ultimately be solved through interpretation, but through having recourse to conflict norms such as lex posterior and lex specialis.53 These apply where a WTO rule interpreted 44. 45. 46. 47. 48. 49. 50. 51. 52. 53.

Ibid., at 756. Joel P. Trachtman, ‘The Domain of WTO Dispute Resolution’, supra note 41, at 342. Ibid. Gabrielle Marceau, ‘WTO Dispute Settlement and Human Rights’, supra note 35, at 753. Joost Pauwelyn, ‘How to Win a World Trade Organization Dispute Based on Non-World Trade Organization Law: Questions of Jurisdiction and Merits’, 37 Journal of World Trade (2003) 997-1030 at 1001-1002. Ibid. Joost Pauwelyn, ‘The Role of Public International Law in the WTO’, supra note 41, at 561. Joost Pauwelyn, ‘How to Win a WTO Dispute Based on Non-WTO Law’, supra note 48, at 1003. Joost Pauwelyn, ‘The Role of Public International Law in the WTO’, supra note 41, at 566. Joost Pauwelyn, Conflict of Norms in Public International Law. How WTO Law Relates to other Rules of International Law (Cambridge University Press, 2003) at 327 et seq. Pauwelyn

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in light of general international law cannot be reconciled with the non-WTO rule.54 Second, to apply a WTO rule in a situation where the non-WTO rule actually prevails in accordance with conflict rules would effectively be ‘adding or diminishing obligations’ prohibited by Article 3.2 of the DSU.55 In affirming the non-WTO rule the panel is not creating law but it is giving effect to law applicable between the WTO Members created elsewhere. Third, WTO rules may apply differently to different WTO members depending on whether they have accepted other non-WTO rules. This may complicate things but it is an ‘unavoidable consequence of not having a centralised legislator in international law’56. There is thus a clear difference of opinion between what can perhaps be seen as the majority of scholars such as Marceau and Trachtman on the one hand and Pauwelyn on the other. In this regard, a connection probably exists between the doctrinal position and the scholars’ views on free trade and the WTO in general. For those very much ‘inside’ the trade circles, such as Marceau and Trachtman, the functioning of the WTO and unity of international trade law are probably the primary concerns, whereas Pauwelyn seems to be more interested in the broader landscape of international law. By way of a short summary, Trachtman and Marceau argue that the competence of the WTO dispute resolution system is limited to the covered agreements.57 Consequently, non-WTO rules of international law can only be considered by the WTO adjudicative bodies as interpretative material when applying WTO law, or as factual evidence. They emphasise that states are free to limit the WTO system this way in the material sense. Any ensuing problems must be dealt with through political and not judicial means. Pauwelyn, in turn, accepts that the jurisdiction of the WTO dispute settlement system is limited ratione materiae as is its competence to enforce non-WTO rules. He also accepts that states could, in theory, contract out of general international law, but argues they have not done so in the case of the WTO. Thus, the WTO was automatically born into the system of international law. Both the covered agreements and the WTO dispute settlement system are integral

54. 55. 56. 57.

identifies several conflict norms: 1) Lex Posterior 2) Lex Specialis 3) Particular international law prevails over general international law 4) Later custom prevails earlier treaty unless it can be shown that the treaty is lex specialis 5) Treaties and custom prevail over general principles of law 6) Special custom prevails over general custom. 7) In some very specific circumstances it is possible that no conflict norm solves the situation. In such cases the adjudicator may have to pronounce a non liquet. Joost Pauwelyn, ‘The Role of Public International Law in the WTO’, supra note 41, at 577. Ibid., at 566. Ibid., at 567. Answering to Pauwelyn’s argument Marceau indicates that: ‘The covered agreements are explicitly listed, and it cannot be presumed that members wanted to provide the WTO remedial system to enforce obligations and rights other than those listed in the WTO treaty’. Gabrielle Marceau, ‘WTO Dispute Settlement and Human Rights’, supra note 35, at 777-778.

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parts of public international law, not closed, self-contained regimes.58 The WTO dispute settlement system is therefore competent to apply non-WTO rules where these prevail over WTO rules in accordance with conflict norms. While both sides to the debate agree that a genuine conflict only arises where a WTO rule, interpreted in light of other rules of international law, cannot be reconciled with a non-WTO rule, they have different views on how situations should be solved. Following Pauwelyn’s approach would mean having recourse to conflict norms. ‘The worst case scenario’ in such situations would be a finding by the WTO dispute settlement system that a non-WTO rule prevails but that it cannot enforce such a norm.59 Marceau in turn argues that where interpretation cannot resolve the conflict, WTO adjudicative bodies are not competent to make a formal finding concerning a non-WTO norm.60 From the perspective of international environmental law, Pauwelyn would accept, in theory, that the WTO dispute settlement system directly applies a multilateral environmental agreement in case it was found to be the prevailing rule. Marceau and others, however, could not accept such an outcome. For the present purposes, Pauwelyn’s approach is the more attractive one: in addition to be legally justifiable, from a more policy-oriented perspective, it would also mean placing international environmental law on a more equal footing with WTO norms, thereby acknowledging the competing claims to legitimacy by these specialised fragments of international law.

2.4. Other Rules as Interpretative Material or Factual Evidence While the direct application of non-WTO norms by the WTO dispute settlement bodies remains controversial, it is widely accepted that non-WTO rules of international law can play a role in WTO disputes through interpretation. This is in conformity with the customary rules of treaty interpretation and Article 31.3(c) of the VCLT providing that: There shall be taken into account, together with the context… any relevant rules of international law applicable in the relations between the parties.61

For Marceau, this provisions servers to attain a degree of coherence in international law and helps to remedy some of the problems arising out of the limited substantive applicability of non-WTO law in the dispute settlement system:

58. 59. 60. 61.

Joost Pauwelyn, ‘The Role of Public International Law in the WTO,’ supra note 41, at 566. Ibid., at 565. Gabrielle Marceau, ‘WTO Dispute Settlement and Human Rights’, supra note 35, at 795. According to Marceau, Article 31 of the VCLT thus sometimes requires the panels and the AB to take into account outside legal materials. Gabrielle Marceau, ‘A Call for Coherence in International Law: Praises for the Prohibition Against ‘‘Clinical Isolation’’ in WTO Dispute Settlement System’, 33 Journal of World Trade (1999) 87-152 at 108.

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Finnish Yearbook of International Law (Vol. 19, 2008) The WTO Agreement, as with any other treaty, should be interpreted taking into account other relevant and applicable rules of international law, including human rights law. In this context, it should generally be possible to interpret WTO provisions in a way that allows and encourages WTO Members to respect all their international law obligations.62

On the face of it, this seems like an attractive solution. There are, however, some important caveats: While it is clear that relevant rules of international law must be taken into account in the interpretation of WTO law, it is far less clear what constitutes such ‘relevant rule of international law applicable in the relations between the parties’. Are they only such rules that are binding on all WTO Member States? 63 This would mean that the practical relevance of non-WTO norms is very limited: the more WTO members we have, the less relevant rules we can refer to. Because there are more WTO members, there will be less ‘other rules’ that are binding on all WTO members.64

Or, are relevant rules such rules that are binding on the parties to a particular dispute? This would seem like a sensible solution and one that could help to promote the coherence and unity of international law. Admittedly, such an approach would also mean that WTO rules might apply differently to different WTO members depending on whether or not they have accepted other nonWTO rules, thereby complicating the matrix of rights and obligations between WTO members and threatening the unity of WTO law. However, it can, as Pauwelyn has argued, also been seen as ‘the unavoidable consequence of not having a centralized legislator in international law’.65 As it will be discussed below, the Appellate Body’s Shrimp-Turtle decision seemed to leave the door open for the even more generous interpretation that multilateral environmental agreements (MEAs) could be relevant to the interpretation of WTO law even if all disputing parties have not consented to them. However, the approach taken by the WTO panel in the Biotech dispute has lead to a situation where it might be difficult for a MEA to play any role in the WTO dispute settlement system.66 A third possibility for non-WTO rules to play a role in the WTO dispute settlement system is for them to be used as facts or evidence in the WTO proceed62. Gabrielle Marceau, ‘WTO Dispute Settlement and Human Rights’, supra note 35, at 785786. 63. For a discussion see ibid., at 780-783. 64. Joost Pauwelyn, ‘Speech Delivered at the Fourth Annual WTO Conference’, in Mads Andenas and Frederico Ortino (eds), WTO Law and Process (British Institute for International and Comparative Law: London, 2005) 494-500 at 496. 65. Joost Pauwelyn, ‘Recent Books on Trade and Environment: GATT Phantoms Still Haunt the WTO’, 15 European Journal of International Law (2004) 575-592 at 591. 66. See detailed discussion below.

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ings. This option also enjoys considerable scholarly support, but there is no clear answer to the question as to when non-WTO rules of international law count as ‘relevant rules’ of international law, and when they should be considered as factual evidence. Legally speaking there is also a significant difference between this approach and the consideration of non-WTO norms through direct application or interpretation: When a non-WTO norm is being invoked as evidence and not as a legal right or an obligation, it means that the evidence can also be overturned by more convincing materials presented by the other party.67 As it will be seen in the context of the Biotech dispute, it also provides the WTO dispute settlement with ample discretion to decide whether certain rules provide helpful factual guidance and the system is therefore free to ignore such rules that it does not deem useful. Still, this approach was arguably used by the Appellate Body in the Shrimp-Turtle case and could help to maintain at least some degree of coherence despite the uneven participation by states in international legal regimes.68 In sum, there are the three ways in which international environmental law could play a role in the WTO dispute settlement system: through direct application; through interpretation; and as factual evidence. The argument here is that the early WTO dispute settlement practice contains some important uncertainties concerning the legal status and relevance of some of the environmental norms. The following sections will also argue that the most recent practice has taken an unduly restricted approach, leaving very little scope for MEAs to interact with WTO rules. As it will also be argued, such an approach brings to the fore concerns over fragmentation of international law. It also highlights institutional discrepancies between WTO law and international environmental law, and puts into question the commonly made argument that the WTO dispute settlement system has become more open to considering international environmental law and environmental issues. Instead, it threatens to strengthen environmentalist criticism against the WTO and its dispute settlement system, thereby challenging their legitimacy. The argument here is, however, that legally justified ways to enhance the interaction between international environmental law and international trade law would be available for the WTO dispute settlement bodies without them overstepping the limits of their mandate.

3. International Environmental Law in the WTO Dispute Settlement Practice: Shrimp-Turtle and Hormones Disputes Questions concerning the relationship between WTO rules and international environmental law have emerged in three key linkages cases, namely the Shrimp67. Joost Pauwelyn, Conflict of Norms, supra note 53, at 463-464. 68. See the detailed discussion below.

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Turtle case (1998 and 2001), the Hormones case (1998) and the Biotech dispute (2006). These cases have all been influential in shaping WTO law, meaning that the relevant WTO law issues and the underlying facts have all been discussed extensively elsewhere.69 The focus in this paper is, however, on the role of international environmental law in these disputes. It is often argued that the WTO dispute settlement has become more responsive to international environmental law and environmental interests. Pauwelyn, for instance, contends that many of the old environmentalist myths about the GATT/WTO regime are no longer relevant and invites everyone to: embrace and carefully examine the Appellate Body’s more nuanced approach in cases such as US-Shrimp Turtle and EC-Asbestos, as well as the WTO’s increasing openness to other regimes of international law, including MEAs. 70

With a similar ethos Avafia argues that: An examination of Panel and Appellate Body Reports reveals a trend generally favourable to the pursuit of sustainable development goals. There are indications that the appreciation of sustainable development objectives by WTO organs is widening to its broader socio-economic goals. 71

The objective of this analysis is to counter such arguments and show that important problems remain in the relationship between the WTO and environment. In more specific terms, this paper draws attention to doctrinal uncertainties regarding the role of international environmental law in WTO dispute settlement proceedings. It seeks to emphasize that while individual disputes, such as the Shrimp-Turtle case, have been resolved in a way that is satisfactory from the environmentalist perspective, they have left many of the broader and more difficult systemic problems unanswered. Most importantly, it remains difficult to predict whether and how an international environmental instrument will be considered relevant by the WTO dispute settlement bodies. This has the effect of making the WTO dispute settlement system sensitive to challenges against 69. See, for example, Robert Howse, ‘The Appellate Body Rulings in the Shrimp/Turtle Case: A New Legal Baseline for the Trade and Environment Debate’, 27 Columbia Journal of Environmental Law 2 (2002) 491-521; and Alice Palmer, The WTO GMO Dispute. Implications for Developing Countries and the Need for an Appeal. (GeneWatch UK, the Forum for Biotechnology and Food Security, the RSPB & GM Freeze, November 2006). Available at (visited 30 November 2009). 70. Joost Pauwelyn, ‘Recent Books on Trade and Environment: GATT Phantoms Still Haunt the WTO?’ supra note 65, at 591. 71. Tenu Avafia, ‘Does the WTO’s Dispute Settlement Understanding Promote Sustainable Development’, in Markus W. Ghering and Marie-Claire Cordonier Segger (eds), Sustainable Development in World Trade Law (Kluwer Law International: The Hague, 2005) 257-271 at 271.

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its legitimacy and to environmentalist criticism that the WTO is biased towards trade interests. Of the three cases, the Shrimp-Turtle case is a landmark ruling whereby the Appellate Body seemed to end the ‘clinical isolation’ of international trade law from other fields of international law. In short, the Shrimp-Turtle dispute originated from an import prohibition by the U.S. on shrimp and shrimp products caught by fishing technologies that may adversely affect sea turtles. The import prohibition was challenged in 1996 jointly by India, Pakistan, Malaysia and Thailand arguing that the unilateral trade ban violates the GATT and that goods may not be differentiated based on processes and production methods (PPMs). The facts of the Shrimp-Turtle dispute were in many ways similar to the Tuna-Dolphin disputes decided by GATT panels a few years earlier. These panels rejected the US unilateral trade ban on tuna and ruled that differentiation based on PPMs was not consistent with the GATT, in other words, that imports of tuna could not be restricted because of the tuna having been caught in such a way that is harmful for dolphins.72 The Appellate Body’s first Shrimp-Turtle decision in 1998, implying that differentiation based on PPMs is sometimes possible, was therefore a remarkable milestone.73 While this aspect of the dispute is undoubtedly important and interesting, he focus here is on such legal questions in the Shrimp-Turtle dispute that are relevant to the doctrinal debate outlined above concerning the relationship between WTO rules and international environmental law. In this regard, what was remarkable about the Appellate Body decision in 1998, was that the Appellate Body referenced a host of multilateral environmental agreements (MEAs) and other environmental instruments. After the Tuna-Dolphin disputes, environmentalists had fiercely attacked the GATT dispute settlement system, arguing that: GATT procedures reflect a systemic bias toward trade concerns and fail to provide an appropriate (open, democratic, technically competent and fair) forum for setting the rules of international economic interaction or for adjudicating disputes that affect environmental policies.74

At first glance, however, the Shrimp-Turtle decision by the Appellate Body seemed to answer such criticisms and open the door of the WTO dispute settlement system to environmental interests and instruments. When applying GATT Article XX(g) that justifies environmental exceptions, the Appellate Body highlighted that the text drafted in 1947 had to be read ‘in the light of 72. GATT panel report, United States–Restrictions on Imports of Tuna (Mexico), BISD 39S/155, 3 September 1991. Unadopted. GATT panel report, United States-Restrictions on Imports of Tuna (European Economic Community), GATT document DS29/R11 October 1994. Unadopted. 73. WTO Appellate Body report, Shrimp-Turtle, supra note 3. 74. Daniel Esty, Greening the GATT, supra note 15, at 52-53.

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contemporary environmental concerns’, and that its language was not ‘static’ but rather ‘by definition, evolutionary’.75 In concrete terms, measures taken to protect ‘exhaustible natural resources’ also encompassed living natural resources such as sea turtles.76 To support this evolutionary interpretation, the Appellate Body referred to several multilateral environmental agreements, including the United Nations Convention on the Law of the Sea, the CBD and the Convention on the Protection of Migratory Species of Wild Animals (CMS). 77 It also acknowledged that sea turtles were listed in the Appendix I of the Convention on International Trade in Endangered Species, meaning that their exhaustibility ‘would in fact have been very difficult to controvert’.78 This was the first time in the history of the GATT/WTO system that the role of MEAs in the interpretation of the GATT was recognized in such explicit and generous terms. The Appellate Body also emphasised the role of multilateralism in solving international environmental problems. The intensity of US efforts to find a negotiated solution to the protection of sea turtles thus played an important role in determining whether its import prohibition was deemed consistent with the GATT. During the first phase of the Shrimp-Turtle case, the Appellate Body found that the US measure was one implemented for the protection of exhaustible natural resources, thus fulfilling the requirements of Article XX(g). It ruled, however, that the measure was being applied in a manner that constituted ‘unjustifiable discrimination’ in violation of the chapeau of Article XX. One of the defects in the US conduct was that it had only negotiated with some but not all relevant states before imposing an unilateral trade ban.79 According to the Appellate Body: the very policy objective of the measure, demands concerted and cooperative efforts on the part of the many countries whose waters are traversed in the course of recurrent sea turtle migration. The need for, and the appropriateness of, such efforts have been recognized in the WTO itself as well as in a significant number of other international instruments and declarations.80

In support, the Appellate Body invoked the Ministerial Decision on Trade and Environment adopted by WTO Members in Marrakech in 1994, and highlighted references to both the Rio Declaration on Environment and Development, and Agenda 21 thereof.81 The Appellate Body then listed what it saw as the relevant instruments of international environmental law: Principle 12 of the Rio Declara-

75. 76. 77. 78. 79. 80. 81.

WTO Appellate Body report, Shrimp-Turtle, supra note 3, at paras.129-130. Ibid., at para. 131. Ibid., at para. 130. Ibid., at para. 132. Ibid, at paras. 153 and 168. Ibid., at para. 168. Adopted by ministers at the meeting of the Uruguay Round Trade Negotiations Committee in Marrakesh on 14 April 1994.

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tion; Paragraph 2.22(i) of Agenda 21; Article 5 of the CMS; and the Report of the Committee on Trade and Environment to the WTO Singapore Ministerial Conference.82 According to the Appellate Body, Principle 12 of the Rio Declaration was ‘of particular relevance’ because it demonstrated the need for ‘concerted and cooperative efforts’ to address the protection of sea turtles. The Appellate Body thus cited the relevant part of the Principle, which reads as follows: Unilateral actions to deal with environmental challenges outside the jurisdiction of the importing country should be avoided. Environmental measures addressing transboundary or global environmental problems should, as far as possible, be based on an international consensus. [Emphasis in the original]

Due to this and the inflexible manner in which it was applied, the US trade ban was found to violate the GATT during the first phase of the dispute. However, after the US broadened the scope of acceptable sea turtle protection policies, and engaged in good faith efforts to negotiate a regional agreement concerning the conservation of sea turtles with the relevant states of the Indian Ocean, the defects in its measure were remedied. The WTO dispute settlement system thus accepted that the US could unilaterally prohibit imports of shrimp from countries that are not taking adequate measures to protect endangered species of sea turtles. Such an outcome was more than many environmentalist had dared to hope for – prompting many to argue that this ruling marked a turning point in the troubled relationship between the trade and environmental communities.83 In light of subsequent developments and especially the Biosafety dispute, however, I would contend that this was far from being the case. After the Shrimp-Turtle decision Dunoff raised the question as to whether: a move towards more permeable doctrinal borders represents the wholesale incorporation of international environmental law into international trade law or the “selective incorporation”. More pointedly, will doctrinal borders be relatively permeable where international environmental law does not interfere with the trade regime’s goal of market liberalisation, but relatively impermeable where international environmental law impedes this objective?84

As it will be explained below, recent practice concerning the role of international environmental law under the WTO seems to confirm the validity of such concerns. In more specific terms, the Appellate Body decision as well as the subsequent decisions have failed to provide detailed and legally sound justifica82. WTO Appellate Body report, Shrimp-Turtle, supra note 3, at para. 168. 83. Reflecting such ethos is, for example, Joost Pauwelyn, ‘Recent Books on Trade and Environment: GATT Phantoms Still Haunt the WTO’, supra note 65, at 591. 84. Jeffrey L. Dunoff, ‘Border Patrol at the World Trade Organization’, 9 Yearbook of International Environmental Law (1998) 20-27 at 24-25.

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tions as to why certain instruments and concepts of international environmental law were – or were not – deemed relevant to the dispute. One way to illustrate this is to compare the approach by the Appellate Body to certain environmental principles in the Shrimp-Turtle and Hormones cases. In the Hormones case, the most relevant question for the present analysis concerned the legal status and relevance of the precautionary principle, which the EU invoked as a justification for its ban on meat produced with the aid of growth hormones. The SPS Agreement requires that measures taken to protect human, animal or plant life or health are necessary and based on scientific justification. The precautionary principle, in turn, is a concept that has been developing in international environmental law to justify precautionary action in the face of scientific uncertainty.85 Hence the potential tension between the SPS Agreement and the precautionary principle. While rapidly evolving, international environmental law remains a relatively undeveloped field of international law, and the legal status of several environmental principles still waits for confirmation. Even today, there is some uncertainty regarding the legal status of the precautionary principle. Its legal status was even more in question a decade ago: in the 1990s, the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS) and the WTO Appellate Body all had the opportunity to confirm that the precautionary principle is customary law – but none of them was willing to do so in clear terms. The ICJ came across the precautionary principle twice, in the attempted reactivation of the Nuclear Tests case in 1995 and the Gabcikovo-Nagymaros dam dispute between Hungary and Slovakia in 1998. 86 In 1999, Australia and New Zealand requested interim measures of protection from the ITLOS in the Southern Bluefin Tuna dispute, arguing that the precautionary principle was customary international law.87 However, all these judicial bodies took a cautious approach to the legal status of the precautionary principle, in some cases hinting at the possibility that the precautionary principle is emerging as a rule of customary law.88 The main criticism here is therefore not that the Appellate Body failed to confirm the customary 85. It has been argued that the weakest version of the precautionary principle requires states to act with care and when taking decisions which may have an adverse impact on the environment. A stronger formulation urges them to regulate activities which may be harmful to the environment even if conclusive scientific evidence of their harmfulness is not yet available, James Cameron and Halina Ward, ‘The Multilateral Trade Organisation: A Revised Perspective’, in James Cameron, Paul Demaret and Damian Geradin (eds), Trade & the Environment: The Search for Balance, Volume 1 (Cameron May: London, 1994) 96-124 at 106. 86. ICJ: Request for an examination of the situation in accordance with paragraph 63 of the Court’s Judgement of 20 December 1974 in the Nuclear Tests (New Zealand v. France) (Provisional Measures), ICJ Reports (1995) 288; and ICJ: Case concerning Gabcíkovo-Nagymaros Project (Hungary v. Slovakia) ICJ Reports (1997) 7. 87. ITLOS: Southern Bluefin Tuna Cases (Australia & New Zealand v. Japan) (Provisional Measures) Order of 27 August 1999. 88. For a comprehensive analysis of the relevant cases, see Kati Kulovesi, ‘Cautious About Pre-

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law status of the precautionary principle in its 1998 Hormones decision – this was not done by the ICJ and ITLOS either regardless of their stronger mandate in the environmental field than that of the WTO Appellate Body. However, in the Hormones case, the panel and the Appellate Body did not even take a stand on the controversial question as to whether the precautionary principle had evolved into a norm of customary international law.89 Instead, they both concluded that neither the principle nor its legal status were of relevance since the SPS Agreement itself reflected precaution and laid down detailed requirements concerning scientific justification of trade-restrictive SPS measures.90 As it will be explained below, this is not a legally justified position. Moreover, when comparing the Shrimp-Turtle and Hormones decisions, it seems that the Appellate Body has been somewhat inconsistent concerning the relevance of international environmental law in these two cases.91 In other words, while rejecting the potential relevance of the precautionary principle in the Hormones case, in the Shrimp-Turtle case, the Appellate Body highlighted the particular relevance of Principle 12 of the Rio Declaration without offering any detailed explanations as to why this seemingly soft law notion was relevant while the precautionary principle was not. Principle 12 of the Rio Declaration provides, inter alia, that: Trade policy measures for environmental purposes should not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade. Unilateral actions to deal with environmental challenges outside the jurisdiction of the importing country should be avoided. Environmental measures addressing transboundary or global environmental problems should, as far as possible, be based on an international consensus.92

As a result of the Appellate Body’s Shrimp-Turtle decision, many WTO scholars came to conceive Principle 12 as an established environmental baseline. Welcoming the approach, Howse argues that: unlike the Tuna-Dolphin panels, [the Appellate Body] did not simply invent its own limitation on unilateralism as a means of protecting the environmental

89. 90. 91. 92.

caution: Recent Judicial Practice Concerning the Status of the Precautionary Principle in International Law’, 2 Ympäristöjuridiikka (2002) 8-27. WTO Appellate Body report, Hormones, supra note 4, and WTO Panel Report, European Community – Measures Concerning Meat and Meat Products, WT/DS26/R, WT/DS/48/R, 18 August 1997. Ibid. I have elaborated on this argument in: Kati Kulovesi, ‘A Link Between Interpretation, International Environmental Law and Legitimacy in the WTO Dispute Settlement’, 11 International Trade Law and Regulation 6 (2005) 188-196. Rio Declaration on Environment and Development. Annex I to the Report of the United Nations Conference on Environment and Development in Rio de Janeiro, 3-14 June 1992. UN Doc. A/CONF.151/26 (Vol. I), 12 August 1992.

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In the field of international environmental law, however, there has been hardly any discussion about Principle 12. When searching through the leading textbooks of international environmental law, one finds Principle 12 mentioned in passing when lamenting the ‘aspirational’ language used in certain parts of the Rio Declaration,94 or noting that the Principle ‘reflects the concerns of free trade advocates’.95 The circumstances under which the Rio Declaration were negotiated further testify to the controversial status of Principle 12. The talks were notably influenced by the disagreement surrounding unilateral trade restrictions. As Sands describes, the controversy arising from the Tuna-Dolphin dispute influenced the atmosphere in Rio: the issue became one of the most contentious topics at the Earth Summit in Rio in June 1992. It very nearly prevented agreement from being reached on Agenda 21 and the Rio Declaration, the instruments which global leaders had gathered to sign.96

The solution was a compromise between Mexico and the US to formulate Principle 12 in a language that would not totally close the door from unilateral trade restrictions.97 Principle 12 was thus adopted in Rio subject to a statement from the US that trade measures might sometimes be effective to protect the environment.98 For this reason, neither the non-binding status of the Rio Declaration itself, nor its travaux preparatoires support the idea that Principle 12 is a rule of customary law, or even a broadly accepted principle of international environmental law. Given the absence of other significant legal materials supporting Principle 12, what was the Appellate Body’s legal justification for endorsing it? Was it sufficient that it was referenced in the WTO Ministerial Decision on Trade and Environment – which would also seem like a soft law instrument? Around the same time that it endorsed Principle 12, the Appellate Body rejected the EU’s arguments on the relevance of the precautionary principle in 93. Robert Howse, ‘Adjudicative Legitimacy and Treaty Interpretation in International Trade Law: The Early Years of WTO Jurisprudence’, in Joseph H. H Weiler (ed.), The EU, the WTO and the NAFTA: Towards a Common Law of International Trade? (Oxford University Press, 2000) 35-69 at 55. 94. Patricia Birnie and Alan Boyle, International Law & the Environment (2nd edn, Oxford University Press, 2002) at 84. 95. Alan Boyle and David Freestone, ‘Introduction’, in Alan Boyle and David Freestone (eds), International Law and Sustainable Development. Past Achievements and Future Challenges (Oxford University Press, 2001) 1-19 at 10. 96. Philippe Sands, Lawless World. America and the Making and Breaking of Global Rules (Penguin Books: London, 2005) at 108. 97. Ibid. 98. 2 Earth Negotiations Bulletin 13, 3-14 June 1992, (visited 30 November 2009).

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the Hormones case. The Hormones dispute originates from the 1980s when the European Community banned imports of beef produced with the aid of growth hormones due to concerns that such hormones had caused deformities in babies. After years of trans-Atlantic negotiations, the US and Canada brought the dispute to the WTO. They argued that the EU was violating the SPS Agreement as its import ban on hormone beef was not based on scientific justification. Both the panel and the Appellate Body ruled in favour of the Canada and the US This did nothing to convince the EU of the need to remove its ban on hormone meat. After enacting a new directive in 2003, the EU launched dispute settlement proceedings against Canada and the US to argue that as a consequence of its new, WTO-compliant measure, retaliatory trade measures authorised by the WTO were no longer justified. After reviewing complex scientific evidence, the panel ruled, in March 2008, that EU’s new hormone ban also violated the SPS Agreement.99 For the current analysis, the most interesting aspect of the Hormones dispute concerns the argument by the European Community during the first phase of the dispute that its prohibition on hormone beef was justifiable by reference to the precautionary principle. As explained above, the precautionary principle is a notion that has been developing under international environmental law, although doubts remain concerning its exact meaning and legal status.100 Still, from the perspective of international environmental law, the precautionary principle seems far more established than Principle 12 of the Rio Declaration: it is also included in the Rio Declaration but it has been formulated in stronger language than Principle 12. According to Principle 15, precaution ‘shall be widely applied’ whereas unilateral trade measures under Principle 12 ‘should be avoided’ and measures ‘should as far as possible’ be based on co-operation. While both notions have been included in other environmental instruments, the list supporting the precautionary principle is longer and includes some of the most significant MEAs Principle 12 of the Rio Declaration, in turn, is found mainly in the CBD and Convention on Migratory Species to which the US is not a Party. If one also considers the fact that Principle 12 was adopted in Rio subject to a statement by the US that unilateral trade measures might sometimes be effective to protect the environment,101 it is interesting that the Appellate Body chose to highlight the particular importance of Principle 12 in a dispute against the US without giving elaborate legal justifications as to why this notion was relevant. In contrast, in its Hormones decision, the Appellate Body, argued that the legal 99. WTO panel report, United States – Continued Suspension of Obligations in the EC-Hormones Dispute, supra note 5. 100. Kati Kulovesi, ‘Cautious About Precaution: Recent Judicial Practice Concerning the Status of the Precautionary Principle in International Law’, supra note 88, at 8-26. 101. Earth Negotiations Bulletin, supra note 98.

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status of the precautionary principle under customary law was an abstract question and the WTO dispute settlement system did not need to take a stand on it as the principle would not be relevant in the dispute.102 In addition to being inconsistent in comparison with the approach taken towards Principle 12 in the Shrimp-Turtle dispute, the Appellate Body’s approach to the precautionary principle seems legally flawed also in other respects: as we saw above, Article 31.3(c) of the VCLT indicates that treaties must be interpreted in light of other relevant rules of international law. Had it evolved into a customary norm, the precautionary principle would seem like a strong candidate for a relevant rule of international law that should affect the interpretation of WTO Agreements in disputes such as the Hormones case. Its legal status should not therefore be an abstract and irrelevant question for the Appellate Body: to make a legally sound decision, the Appellate Body must consider whether there are such relevant rules of international law that must be taken into account in accordance with the VCLT – and this requires determining the customary law status of the precautionary principle. Also Pauwelyn indicates that although he agrees with the Appellate Body’s conclusion, the legal reasoning was not justified but the Appellate Body ‘was obliged to make a ruling on whether this principle is, indeed part of customary law binding on the disputing parties’.103 While some argue that the WTO dispute settlement practice has de facto adopted interpretations that leave ample room for national discretion and precautionary action,104 this is not satisfactory from the legal point of view. In more specific legal terms, if the precautionary principle has become a customary norm or general principle of law, then the WTO dispute settlement system is legally obliged to consider its relevance to its decisions and it could not, for instance, change its practice in such a way that does not consider the precautionary principle. As a customary law notion, the principle should guide the choice between several possible interpretations of the SPS Agreement towards one that is consistent with the precautionary principle – whatever its substantive contents may be. I would argue that this would be the case even when the SPS Agreement already contains provisions reflecting precaution. Whether the precautionary principle would bring any changes to the current interpretative practice is a different legal question – for it is true that the exact meaning of the precautionary principle remains unclear. However, speculation about its substantive irrelevance cannot be used as an excuse for not defining whether the principle is formally applicable in a dispute. One of the key problems emerging from the Shrimp-Turtle and Hormones cases is thus the lack of clarity concerning the questions identified in the doc102. The Biotech panel subsequently took the same approach. See detailed discussion below. 103. Joost Pauwelyn, Conflict of Norms, supra note 53, at 482. 104. Doaa Abdel Motaal, ‘Is the World Trade Organization Anti-Precaution?’, 39 Journal of World Trade (2005) 483-502.

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trinal debate on the status of non-WTO norms in the WTO dispute settlement system. The substantive outcome of the Shrimp-Turtle case may have been everything that environmentalist could have realistically hoped for, and the Appellate Body may have been generous in its references to international environmental law – but from a more systemic and longer-term perspective, many important questions remained after the decision. Most importantly, the Shrimp-Turtle case did not offer any solid analytical basis for conceiving how and why international environmental law would be relevant in possible future linkage disputes, and the legal analysis on the relevance of the precautionary principle in the Hormones case demonstrated that the relevance of international environmental norms in WTO disputes cannot be taken for granted. In light of the doctrinal debate reviewed above, some of the key open questions from these two decisions include the following: What was the legal significance of the various MEAs in the Shrimp-Turtle case? While it seems clear that they were not being directly applied, the Appellate Body did not explain whether they were considered as relevant rules of international law that must influence the interpretation of the WTO Agreements in line with the VCLT, or whether they were seen merely as factual evidence. Howse and other scholars seemed to accept the first interpretation. Such a view raises the question concerning the legal basis for the Appellate Body’s reference to the CBD given that not even all disputing WTO Members (namely the US) were not parties to it.105 Could this be taken to mean that not even all disputing WTO Members (let alone all WTO Members) need to be parties to an agreement for it to be considered as a relevant rule within the meaning of the VCLT? Had this been the case, it would have signified a strong recognition of the relevance of MEAs in the WTO regime and alleviated many environmentalist concerns – while undoubtedly surfacing new ones related to state sovereignty. As shown below, however, the most recent practice points towards exactly the opposite direction. Several other questions were already identified above: what was the legal relevance of Principle 12 of the Rio Declaration in the Shrimp-Turtle dispute and how did the Appellate Body view its legal status under international environmental law? And why, in contrast, was the legal status of the precautionary principle in the Hormones case an abstract question? Had it emerged as a rule of customary law, why would the precautionary principle not be relevant to the Hormones dispute? As we saw above, these questions are similar to the key uncertainties in the doctrinal debate concerning the status of non-WTO norms in the dispute settlement system.

105. Joanne Scott, ‘International Trade and Environmental Governance: Relating Rules (and Standards) in the EU and the WTO’, 15 European Journal of International Law (2004) 307354 at 339.

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4. International Environmental Law in the WTO Dispute Settlement Practice: the Biotech Case When the Appellate Body rendered its decisions on Shrimp-Turtle and Hormones in the late 1990s, the debate about the role of non-WTO norms in the dispute settlement system was just starting. By the time the Biotech panel gave its decision in 2006, most WTO scholars were familiar with the debate and the main problems. This is probably why the Biotech panel report (which was not appealed) contains some more details concerning the legal relevance of international environmental law in the dispute. The report provides an interesting opportunity to evaluate the current state-of-play regarding the relationship between WTO law and international environmental law. For this author, it shows that the most important hurdles are far from overcome and there is no constant and consistent evolution towards a balanced and interactive relationship between WTO law and international environmental law. From the outset, the Biotech dispute was regarded as difficult, especially concerning the role of international environmental law. According to some observers, the Cartagena Protocol on Biosafety – to which none of the complainants are parties – was the implicit target of the WTO proceedings because: it multilateralizes the EU regulatory approach, meaning that other countries might use the Protocol to justify adopting EU-style market access rules. The United States and Canada would like the WTO to implicitly determine whether or not the Cartagena Protocol is trade compliant, hence, sending a signal to all other countries that might attempt to use the protocol to ban [genetically modified organisms] GMOs.106

The Cartagena Protocol was designed to address challenges posed by modern biotechnology to environmental protection. It applies to transboundary movements of living modified organisms designed for voluntary introduction into the environment (such as seeds and fish) as well as those destined for use as food, feed or in food processing. The latter definition would cover most of the internationally traded biotech products, including soybeans, maize and cotton. The Protocol creates a detailed regime for international movements of such products and entered in force in September 2003, only a few months after Argentina, Canada and the US launched the Biotech proceedings against the EU at the WTO. The complainants chose to limit their legal challenge in a way that did not contest the existence or the substance of the EU’s regulatory framework but focused instead on its de facto application. Their first complaint concerned the EU’s practice for the approval of biotech products, in other words, the de facto 106. Grant E. Isaac and William A. Kerr, ‘Genetically Modified Organisms at the World Trade Organization: A Harvest for Trouble’, 37 Journal of World Trade (2003) 1083-1096 at 1083-1084.

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suspension of their approval and product-specific delays.107 While over thirty applications were pending in the pipeline, some of which had received a favourable risk assessment from the EU’s own scientific bodies, the EU had failed to approve any new biotech products since October 1998.108 The EU denied the existence of a de facto moratorium and highlighted the scientific complexity of assessing the impacts of GMOs, limited experience on GMOs and the irreversibility of introducing them into the environment given that they are able to reproduce autonomously. The panel concluded that the EU had applied a de facto moratorium on the approval of GMO products from June 1999 until August 2003 when the panel was established.109 It ruled that by failing to undertake and complete the approval procedures without ‘undue delay’ the EU had violated Article 8 and Annex C of the SPS Agreement.110 The delays could not be justified by reference to evolving science or precaution as the EU could have adopted temporary measures or placed conditions on the final approval.111 The panel thus concluded that the EU must lift its general moratorium on GMO products and complete the delayed approval processes.112 The second category of challenged measures concerned actions by Austria, Belgium, France, Germany, Italy and Luxemburg prohibiting or restricting the marketing of biotech products. The panel found these to be SPS measures that were not based on a risk assessment in violation of Articles 2.2 and 5.1 of the SPS Agreement.113 It explained that none of the individual Member States had evaluated risks associated with the genetically modified products that they banned.114 It was not possible for these countries to invoke risk assessments carried out at the Community level as the EU’s scientific bodies had assessed the risks favourably and the products had been approved in the EU as a whole.115 The panel also found that the bans imposed by the individual Member States could not be justified under Article 5.7 of the SPS Agreement as sufficient scientific evidence was available for conducting a proper risk assessment. In defending its regime for biotech products, the EU identified the need to interpret WTO Agreements in light of other instruments of international law.116 It argued that the precautionary principle had ‘by now become a fully-fledged and general principle of international law’.117 Furthermore, the Cartagena Protocol 107. WTO report on Biotech, supra note 6, at para. 7.98. 108. Ibid., at paras. 4.10-11, 4.418. 109. Ibid., at para. 7.1285. 110. Ibid., at para. 8.6-7. 111. Ibid., at para. 7.1529. 112. Ibid., at para. 8.16, 113. Ibid., at paras. 8.9-10. 114. Ibid., at para. 8.10. 115. Ibid., at para. 8.9. 116. Ibid. at para. 4.518. 117. Ibid., at para. 4.523.

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had confirmed ‘the key function of the precautionary principle’ in the decision to restrict or prohibit imports of GM products in the face of scientific uncertainty.118 The EU stressed the need to interpret and apply the Cartagena Protocol and the SPS Agreement consistently.119 It explained that those negotiating the Protocol were acutely aware of the Protocol’s relationship with WTO Agreements and did not mean to create an inconsistent approach.120 The Protocol was fully compatible with WTO rules, and its detailed provisions on precaution and risk assessment in the Protocol should inform the interpretation of the relevant provisions in the WTO Agreements.121 The US and others contested the relevance of these MEAs and the precautionary principle to the dispute.122 According to the US, the Cartagena Protocol could not be applied as the US was not a party to it.123 Canada argued that only such treaties were relevant to the interpretation of the covered agreements that applied between all WTO members.124 Concerning the precautionary principle, the US contended that it was neither a principle nor a customary rule of international law.125 However, even if the precautionary principle was a relevant rule of international law, it would not affect the interpretation of the SPS Agreement. This was because the precautionary principle: ‘would be useful only for interpreting particular treaty terms, and could not override any part of the SPS Agreement’.126 The Biotech panel responded to these arguments by first offering some general views on the role of international law in the interpretation of WTO Agreements. Quoting Article 31 of the VCLT, it stated that there was no doubt that international treaties and custom were such relevant rules of international law that a panel is mandated to take into account.127 The Appellate Body’s Shrimp-Turtle decision also confirmed that general principles of international law were to be taken into account when interpreting the WTO Agreements.128 The panel stressed, however, that according to the VCLT, only such rules had to be considered that were ‘applicable in relations between the parties’.129 In its view, this meant rules applicable in the relations between the WTO Members.130 As a consequence, the 118. Ibid, at para. 4.524. 119. Ibid, at para. 7.55. 120. Ibid. 121. Ibid. 122. Ibid., at para. 7.56 et seq. 123. Ibid. at para. 7.59. 124. Ibid, at para. 7.60. 125. Ibid, at para. 4.542. 126. Ibid, at para. 4.540. 127. Ibid, at para. 7.67 and 7.69. 128. Ibid. 129. Ibid, at para. 7.68. 130. Ibid.

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panel was not required to take into account rules that are not applicable to one of the parties to the dispute.131 Given that the case was not one where relevant rules of international law were applicable between all parties to the dispute but not between all WTO members, it did not need to decide whether, in such a situation, it would be entitled to take the relevant rules of international law into account.132 As some disputing WTO members were not parties to them, the panel concluded that neither the CBD nor the Cartagena Protocol were relevant to the interpretation of the WTO Agreements in the present case.133 The same was true for the precautionary principle: the legal debate about the status of the precautionary principle was still ongoing and, as the Appellate Body in the Hormones case, the panel did not need to take a position on the legal status of the precautionary principle.134 The panel also responded to the interesting observation by the EU that the Appellate Body had in the Shrimp-Turtle decision referred to the CBD to which the US was not a party.135 As discussed above, some hoped this reference to mean that MEAs could play a role in the WTO proceedings even if the dispute involved non-parties. The Biotech panel, however, emphasized that legal norms could also be considered, not in the legal sense but in the same way as dictionaries: Such rules would not be considered because they are legal rules, but rather because they may provide evidence of the ordinary meaning of terms in the same way that dictionaries do. They would be considered for their informative character. It follows that when a treaty interpreter does not consider another rule of international law to be informative, he or she need not rely on it.136

While the Appellate Body had considered the CBD and the other MEAs as useful for the interpretation of Article XX of the GATT in the Shrimp-Turtle case, the Biotech panel came to the contrary conclusion. Noting that it had ‘carefully considered the provisions’ of the Cartagena Protocol and the CBD but without explaining this analytical process any further, the panel ruled that it ‘did not find it necessary or appropriate to rely on these particular provisions in interpreting the WTO Agreements at issue in this dispute’.137 In this way, international environmental law played no role in the resolution of the Biotech case.

131. Ibid, at para. 7.71. 132. Ibid. 133. Ibid, at para. 7.74-7.75. 134. Ibid, at paras. 7.88-89. 135. Ibid, at para. 7.91. 136. Ibid. 137. Ibid, at para. 7.95.

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5. A Troubled Relationship The Biotech panel report is interesting in that it brings to the fore many of the questions concerning the relationship between WTO law and other rules of international law discussed in this paper. As the panel quoted the Appellate Body’s Hormones ruling concerning legal status and relevance of the precautionary principle, it is easy to voice the same criticism against it as discussed above. More importantly – the panel toyed with an extremely narrow interpretation of Article 31.3(c) of the VCLT. Its findings leave the door open for the interpretation that only such rules of international law can be taken into account by the WTO dispute settlement system that are applicable to all WTO Members.138 Such a view would de facto mean that it is unlikely that conventional international law could have any use in interpreting the WTO covered agreements.139 This would hardly be as a satisfactory solution – it would promote the unity of the WTO regime at the expense of other areas of international law. It would also highlight institutional discrepancies between international trade law and international environmental law in such a way that could challenge the legitimacy of the WTO dispute settlement and lead to similarly serious backlashes against the international trade regime as those provoked by the Tuna-Dolphin dispute in the early 1990s. According to the ILC, a better approach would have been to permit references to another treaty in cases where the parties to the dispute are also parties to the other treaty – otherwise, the coherence of the WTO regime comes at the expense of the coherence of the multilateral treaty system as a whole.140 I fully agree – the present situation could well mean that MEAs have hardly any role in WTO proceedings. The Biotech panel can also be criticised for completely discarding the relevance of the Cartagena Protocol. The panel was, of course, justified in finding that in light of Article 31.3(c) of the VCLT, the Protocol was not a relevant rule that had to be taken into account in interpreting the covered agreements given that none of the three complaining states were parties to the Protocol. Thus, there was no legal obligation to consider the Protocol, and the question of its direct application does not even arise here. However, in my view, there are valid reasons why the panel should have considered the Protocol in the more limited sense of factual evidence. The Protocol is, after all, a recent multilateral environmental agreement, negotiated after the establishment of the WTO and the entry into force of the SPS Agreement. It has 153 parties and detailed provisions designed to address the novel and specific problems related to international trade in biotech products. It could and should have 138. International Law Commission, Fragmentation of International Law, supra note 11 at 237 and 227-228. 139. Ibid. 140. Ibid., at 238.

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therefore been used as supporting material in defining the ordinary meaning of the SPS Agreement. The arguments supporting the consideration of the Cartagena Protocol in the Biotech dispute include the need to avoid fragmentation of international law and to ensure that the WTO system does not become isolated from other treaty regimes, and is consistent and constructive in the way it refers to international environmental instruments. As we have seen, the Appellate Body’s Shrimp-Turtle decision referred to a host of environmental instruments, including the CBD to which the US was not a party. This demonstrated that regardless of uneven membership under different international regimes, MEAs could be still considered to ensure that WTO law does not become isolated from other rules of international law. While considering MEAs at the same level as dictionaries is still ‘a rather contrived way’ of preventing the isolation of WTO law,141 it respects state sovereignty and the fundamental doctrine of international law that treaties cannot create obligations on non-parties. The key problem is, however, the scope of discretion left to the treaty applier and the possibility to completely ignore such rules – as the Biotech panel did. What the Biotech panel could have examined, in my view, is whether any such definitions or practices had been developed by the parties to the Cartagena Protocol concerning trade in biotech products that could be useful in the dispute. The Protocol contains detailed provisions on issues such as risk assessment, the precautionary principle and prior informed consent.142 Regarding risk assessment, for instance, Annex III of the Cartagena Protocol gives comprehensive guidance, including some general principles and methodologies. Palmer argues that the Protocol could have provided evidence of the shared values of the international community regarding the careful consideration of risks associated with GMOs, thus supporting the legitimacy of the delay in the approval of genetically modified products.143 All this is not to say that the panel should have deferred to the practices and definitions adopted but the Protocol’s Parties – but given the panel’s lack of expertise on the novel and complex topic of GMOs, as well as concerns about the overall consistency of international law, openly examining relevant practices under international environmental law as factual evidence would have been an appropriate move. 141. Ibid., at 228. 142. On the relevant parts of the Protocol, see Ryan Hill, Sam Johnston and Cyrie Sendashonga, ‘Risk Assessment and Precaution in the Biosafety Protocol’, 13 Review of European Community and International Environmental Law 3 (2004) 263-317 at 266. On comparison between the WTO approach and the Cartagena Protocol, see Laurence Boisson de Chazournes and Mbengue Makane Moise, ‘GMOs and Trade: Issues at Stake in the EC Biotech Dispute’, 13 Review of European Community and International Environmental Law (2004) 289-305 at 301-303. 143. Alice Palmer, The WTO GMO Dispute. Implications for Developing Countries and the Need for an Appeal, supra note 68, at 5-6 and 8.

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Interestingly, de facto the Biotech panel seems to have agreed with some of these arguments: it requested several international organizations, such as Codex Alimentarius, the UN Food and Agriculture Organization, the World Health Organization, the United Nations Environment Programme and the CBD Secretariat to identify relevant materials, such as ‘reference works, glossaries, official documents of the relevant international organizations, including conventions, standards and guidelines etc.’.144 Without any more elaborate justifications, the panel then concluded that the materials obtained ‘have been taken into account by us, as appropriate’.145 As Currie indicates, it would have been interesting to know what these materials were and how they were taken into account.146 From the point of view of the legitimacy of the WTO dispute settlement system, it would certainly have been better to openly admit the relevance of the CBD and the Protocol, and explain how they were taken into account instead of the obscure reference of information obtained from the CBD Secretariat.

6. Conclusions The relationship between the international trade regime and environmental protection has never been easy. After the creation of the WTO dispute settlement system, many of the legal problems culminate in the question concerning the role and relevance of international environmental law in WTO dispute settlement proceedings. The Shrimp-Turtle decision seemed to build some bridges between the WTO and the international environmental community. While lacking in detailed justifications, it showed that MEAs and other environmental instruments could play a role in the WTO dispute settlement system regardless of divergent views on the competence of the WTO dispute settlement system to apply non-WTO norms, and regardless of the uneven participation by states in international legal regimes, which poses challenges to the interpretative approaches foreseen by the VCLT. The Biotech dispute would also have entailed an opportunity for constructive interaction between WTO law and international environmental law. Regrettably, the Biotech panel report shows that the WTO dispute settlement system is reluctant to engage progressively with international environmental instruments. All this highlights concerns relating to the fragmentation of international law and the potential of inconsistencies between institutionally separate but materially overlapping legal regimes.

144. WTO panel report, Biotech, supra note 6, at para. 7.96. 145. Ibid. 146. Duncan Currie, Genetic Engineering and the WTO: An Analysis of the Report in the EC-Biotech Case, Greenpeace International (2006) at 12, (visited 30 November 2009).

Multilateralism as Terror: International Law, Haiti and Imperialism China Miéville* ABSTRACT: Much liberal and left criticism of the Bush administration’s prosecution of the war in Iraq has taken a legalistic form, decrying that war as ‘illegal’. Such criticism often implies that US unilateralism has been definitional to the neoconservative project, and that an alternative ‘multilateralism’ was disallowed, but would be neither illegal nor objectionable. The overthrow of Haiti’s President Jean-Bertrande Aristide in 2004 and the subsequent installing of UN MINUSTAH peace-keepers in the country was a model multilateral action, the fact of which should have problematised this nostrum: its almost wholesale ignoring in the scholarly international law literature is investigated and seen as a structural silence, driven by the self-conception of the mainstream international law community. The Haiti intervention is understood as a successful imperialist action, and the argument made that multilateralism can easily be part of an imperialist strategy, and that such actions are likely to become more common. KEYWORDS: Haiti, multilateralism, imperialism, MINUSTAH, liberalism

1. Iraq, Unilateralism and Its Discontents At its Centennial meeting in 2006 the American Society of International Law (ASIL) took the rare step of adopting a resolution expressing what ASIL press releases – though not the text itself – described as ‘the deep concern of many *

Honorary Research Fellow, Birkbeck, University of London, School of Law and Associate Professor of Creative Writing, Warwick University. This paper is taken from a longer talk I gave at the 21st Helsinki Summer Seminar on International Law in August 2008, entitled ‘Pollution, Power and International Law’. I am very grateful to the organisers for inviting me, and to the students for their stimulating responses. For their invaluable input to drafts of this essay, I am indebted to Brenna Bhandar, Bill Bowring, Brian Concannon, Peter Hallward, Vishaal Kishore, Rob Knox and Susan Marks, as well as to the participants of the ‘Law, Colonialism and Violence II’ workshop at the Altonaer Stiftung für philosophische Grundlagenforschung in Hamburg, 9–11 May 2008, and the Critical Legal Conference in Glasgow, 5–7 September 2008. Responsibility for all arguments and errors is, of course, mine.

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ASIL members’ with regard to recent US behaviour and actions.1 As a ‘partisan’ move, this was not uncontroversial in the field. The resolution’s actual wording was quite anaemic, and refrained even from mentioning the US. The fact that a general statement of well-known norms was widely understood to be a rebuke to the Bush government reflects the common tendency to conceive not just this or that particular rule, but the whole edifice of international law itself as in fundamental structural opposition to the Republican administration’s agenda. The hoopla within international law that the resolution generated, and the repeated insistence that (its milquetoast specifics notwithstanding) it was ‘historic’, illustrate the unusual current prominence of international law in contemporary debates, and a self-consciousness about that prominence among its scholars.2 It has been pointed out more than once that in recent years, international law has ‘become important politically, intellectually, and culturally’.3 Books on international law make bestseller lists; international legal opinions battle it out in the pages of mass-market newspapers, on television and radio.4 This journey into the mainstream was discernable before the ‘Global War on Terror’, in part in response to the jurisprudentially troublesome Kosovo invasion of 1999,5 but it has accelerated exponentially since 2001. Key to this new interest in international law, of course, has been the extreme unpopularity of the Iraq War, and of a Bush administration that, it is agreed by most observers, broke international law to prosecute the former.6 Two things are clear. First, most of the excoriation of the war as illegal is politico-moral opposition translated into juridical categories: international law is here a vocabulary for expressing political opposition, predicated on a generally untheorized equation of legality and justice. This collapse of categories must be resisted, and the equation either systematically justified, or rejected, by critical jurisprudence. 1. 2.

3. 4. 5. 6.

ASIL, ‘Resolution Adopted’, (visited 6 January 2009). For discussions of the importance of and controversy around the resolution, see, for example, Roger Alford, ‘ASIL Passes Historic Resolution’, (visited 6 January 2009); José E. Alvarez, ‘Lessons From a Resolution’, (visited 6 January 2009); ‘ASIL 100th Annual Meeting Breaks Records and Makes News’, (visited 6 January 2009). Samuel Estreicher and Paul B. Stephan, ‘Taking International Law Seriously’, 44 Virginia Journal of International Law (2003) 1–4 at 1. See for example Philippe Sands, Lawless World (Penguin: London, 2006). Also see the appearance of Jack Goldsmith on The Daily Show, 16 April 2008, Comedy Central. See for example Paul Virilio, Strategy of Deception (Verso: London, 2000) for an overview of the sense of juridical chaos around the war. I have argued this in China Miéville, ‘Anxiety and the Sidekick State: British International Law After Iraq’, 46 Harvard International Law Journal (2005) 441–58.

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Second, in this model whatever victory international law has won in framing terms of political debate is Pyrrhic: International law enters dominant discourse as and indeed because the Iraq war and other recent actions are seen to undermine it. International law has, in this version of events, become mainstream because it is in crisis. The more it ails, the more visible it becomes. Exemplified in the title of Philippe Sands’s recent book, the widespread concern is that we have been tugged towards a ‘lawless world’ by a band of, depending on one’s perspective, insane/messianic/ruthless/misguided neoconservative ideologues, whose strategy of aggressive unilateralism goes hand-in-hand with international legal nihilism. Up to a point this impression is not unreasonable: it takes at face value the swaggering pronouncements of some of neoconservatism’s best-known figures. When Richard Perle, for example, insisted in 2003 that the Iraq War was illegal but that ‘in this case international law stood in the way of doing the right thing’,7 the lines seemed clear. Even more overtly combative and nationalist was John Bolton’s refusal to ‘grant any validity to international law’ because ‘those who think that international law really means anything are those who want to constrict the United States’.8 The agon against international law reached a pantomime extreme with Donald Rumsfeld’s lumping together, in the 2005 National Defense Strategy document, of international law and terrorism: ‘Our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism’.9 Such ostentatious legal nihilism (which in fact comprises two distinct if often overlapping attitudes to international law, it will be argued) has clearly been used to serve the neoconservative agenda and strategy that have been corollaries of a particular analysis of US strength.10 To oppose that agenda through international law, then, may appear to be nothing other than the taking seriously of the neoconservatives’ claims – that international law is their enemy. In fact, however, such pronouncements as Perle’s and Bolton’s represented only one wing of the (never monolithic) neoconservative movement. There has always been another that, far from dismissing it, takes international law seriously, and has for some years been developing a well-researched and meticulous body of jurisprudence revolving around the relationship between international law and ‘imperial sovereignty’, as Lorite Escorihuela has shown in a careful 7.

Oliver Burkeman and Julian Borger, ‘War critics astonished as US hawk admits invasion was illegal’, The Guardian, 20 November 2003. Available at (visited 19 April 2009). 8. Quoted in Samantha Power, ‘Boltonism’, New Yorker, 21 March 2005. Available at (visited 19 April 2009). 9. The National Defense Strategy of The United States of America, (visited 6 January 2009). 10. See Alex Callinicos, The New Mandarins of American Power (Polity Press: Cambridge, 2003) for a good overview of this perspective in its ‘haute’ phase.

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taxonomy of what he calls ‘Nationalist International Law’ (NIL).11 Nor has this law developed in a vacuum. Lisa Hajjar has, in terming this trend the ‘Israelization’ of international law, given it a name that stresses an important element of its juridico-strategic antecedents: the specifically non-international-law-nihilist unilateralism of some Israeli international law scholars, an approach that ‘does not make international law irrelevant, contrary to the claims of eulogists and critics alike’, but that engages with it ‘very seriously’ based on the principle that so-called ‘absolute security is a legal right of the state’.12 Such jurisprudence has been important to the development of NIL. At its most provocative, some neoconservative scholarship has even claimed that unilateral US action is the best hope to save international law itself, as in Mario Loyola’s assertion that ‘[t] he United Nations is in a sense systematically destroying international law’,13 or Bush’s claim that the ‘Iraq war saved the UN’.14 Among the US neoconservative ranks, for every Richard Perle there is a Beaver, a Bybee, a Rivkin, a John Yoo, eruditely justifying neoconservative policy in legal terms. Just as Hajjar notes how ‘highly sophisticated’ much of the deployment of international law from the right is, so Lorite Escorihuela shows the seriousness and erudition of Yoo’s work, and insists that many of NIL’s claims are ‘neither outlandish nor outrageous for international law … [but are] perfectly understandable, and a picture on the basis of which people can agree to disagree’.15 However, liberal and left critics of NIL have tended to seek comfort in dismissing any such work as so ‘replete with basic errors’, in Sands’ phrase, that it needs no engagement with, insisting that anyone with ‘the most rudimentary understanding of international law’ will immediately know it to be ‘deeply flawed’.16 11. Alejandro Lorite Escorihuela, ‘Cultural Relativism the American Way: The Nationalist School of International Law in the United States’, 5 Global Jurist Frontiers (2005) 1–166 at 1. 12. Lisa Hajjar, ‘From Nuremburg to Guantanamo: International Law and American Power Politics’, 229 Middle East Report (2003), available at (visited 19 April 2009). 13. Mario Loyola, ‘Mend It or End It’, 10 Weekly Standard (2004), available at (visited 19 April 2009). I am indebted to Rob Knox for this point, and for his argument that Republican Presidential Candidate John McCain’s support for ‘upholding and strengthening international law’ through the establishment of a ‘League of Democracies’ that might bypass the UN to ‘form the core of an international order of peace’ is a recent iteration of this tendency. See John McCain, ‘Remarks by Senator John McCain at the Hoover Institute’, (visited 6 January 2009). 14. Ewan MacAskill, ‘Iraq war saved the UN, says president’, The Guardian, 20 November 2003. Available at (visited 19 April 2009). 15. Lorite Escorihuela, ‘Cultural Relativism’, supra note 12, at 100. 16. Sands, Lawless, supra note 5, at 213-214.

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If that were true, what would be the point of NIL claims? In this liberal model, neoconservative recourse to international law, where it exists, tends to be perceived as a mere veneer, a rhetorical gloss. Hence the claim that Yoo is ‘justifying the commission of a crime using false legal rhetoric’, and the lament that he and his cohorts illustrate that ‘in practice, “international law” exists as a justifying instrument for powerful countries to impose their will on those which are less powerful’.17 This is obviously not wholly false: there is no dispute that international law has – among others – an ideological function. But the idea that NIL is ‘merely’ ideology is usually made by those horrified by what they see as the ‘undermining’, ‘failure’ or even ‘death’ of international law because of widespread unconscionable actions, and/or the obvious ‘basic errors’ of the supposed justifications. Peculiarly, then, they perceive the deployment of international law to be ideology insofar as it is failing as ideology: they explain it as legitimation in claiming that it legitimates nothing. If that is NIL’s main purpose, or one of them, it is hard to see why so inefficient a tool would be used.18 In addition, this despairing liberal Ideologiekritik ignores the extent to which international law-nihilism, just as much as international law’s fervent citation, is ideological. Rumsfeld’s, Perle’s and Bolton’s pronouncements against international law were, among other things, attempts to mobilise an aggressively nationalist and, crucially, triumphalist section of the neoconservative base. The ideological function of the ostentatious claim to be, perhaps not so precisely breaking as exceeding the law, has been neglected.19 However, such a strategy relies on success, and recently all has not been going according to plan. The US ruling elite has been split on strategy, and the decline in support for the war has been a real problem for the neoconservative agenda, as illustrated by Republican infighting, the forced departure of Rumsfeld in 2006, the administration’s distancing of itself from some Yoo-isms for a putatively kinder, gentler neoconservatism, and of course ultimately the election of Barack Obama. Epitaphs for the movement, including from those previously loyal to it, have become common.20 As triumphalism has ebbed, with the fortunes of war,

17. Michael Ratner, quoted in Marjorie Cohn, ‘Torture of “enemy combatants”: call for dismissal and prosecution of John Yoo’, (visited 6 January 2009), and Glenn Greenwald, ‘John Yoo’s war crimes’, (visited 6 January 2009). 18. Again without denying an ideological function to international law, I have argued in more detail against the privileging of this element at the expense of attention to the ineluctable and constitutive juridicalization of modernity, the generalization of the legal form and the coercive material power of international law, in China Miéville, Between Equal Rights: A Marxist Theory of International Law, (Brill: Leiden, 2005) 80–84. 19. An important exception is Nathanial Berman, ‘Legitimacy through Defiance: From Goa to Iraq’, 23 Wisconsin International Law Journal (2005) 93–125. 20. See for example Francis Fukuyama, After the Neocons: America at the Crossroads (Profile Books:

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so has the ostentatious denunciation of international law associated with bullish early neoconservatism.21 In some administration quarters, even before the election of 2008 the tone had shifted even beyond the NIL that always existed alongside the nihilists. Now in place, or at least alongside, the braggadocio of Bolton or the arid and sinister managerialism of Yoo there are, for example, the gentlemanly and rather brilliant interventions of John Bellinger, Legal Adviser to the US Secretary of State. In an important 2007 speech in The Hague, Bellinger systematically and powerfully counters the charges that the US does not care about or abide by international law. In a move rather startling to those for whom the view that international law is fundamentally indeterminate is generally evidence of a critical and politically progressive approach to international law,22 in the unusually nuanced way he counters the administration’s legal critics, Bellinger seems not only almost to acknowledge such indeterminacy, but to affably and strategically deploy it for the US state. ‘[O]ur critics often assert the law as they wish it were, rather than as it actually exists today. This leads to claims that we violate international law – when we have simply not reached the result or interpretation that these critics prefer’.23 No matter how one might excoriate the politics that animates them, these are hardly the crude theses that Sands – unconvincingly – ascribes to Yoo and others. Bellinger in fact turns such a Sands-ite critique of self-evident basic error against the liberals who level it. For example, in responding to a UN report on the detention camps at Guantánamo Bay, he explains: ‘[w]e think that the report is fundamentally flawed in its procedures and is riddled with inaccuracies and really was done in a way, frankly, that discredits the report overall and the work of the rapporteurs in this effort.’24 Here, Bellinger is a reasonable man – more reasonable indeed than Sands, whose rage at Yoo is too urgent for clauses: ‘Simplistic. Unilateral. Misconceived. Poorly presented. Rushed.’25 Bellinger by

21.

22. 23. 24. 25.

London, 2006); and Kenneth Anderson, ‘Goodbye to All That? A Requiem for Neoconservatism’, 22 American University International Law Review (2007) 277-332. Russia’s recent crushing of US ally Georgia’s aspirations has meant further jeremiads from neoconservative quarters, as well as what some commentators have sardonically depicted as a renewed and hypocritical support for ‘traditional’ international law. See Robert Parry, ‘Neocons Now Love International Law’, (visited 6 January 2009). See of course especially Martti Koskenniemi, From Apology to Utopia (Lakimiesliiton Kustannus: Helsinki, 1989). I have attempted to integrate the indeterminacy thesis, as expounded by Koskenniemi, into a Marxist approach to international law in Miéville, Between, supra note 19. John B. Bellinger, ‘The United States and International Law’, (visited 6 January 2009). Quoted in Steven Donald Smith, ‘Guantanamo Detainees Being Held Legally, Official Says’, (visited 6 January 2009). Sands, Lawless, supra note 5, at 227

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contrast speaks more in sorrow than in anger, regretfully forced to speak out for the sake of the honour, let us be clear, of the UN, whose rapporteurs disgrace themselves with such shoddy work. The failure of many liberal critics to take seriously the jurisprudential virtuosity of their opponents is predicated on an attempt to defend international law against (supposedly self-evident, and self-evidently inadequate) attacks. Some left and critical scholarship has taken a structurally similar approach – and is, therefore, despite its superiority to untheorized liberal nostrums, open to similar critiques – counterposing international law and the neoconservative agenda. Its most impressive iteration is Bill Bowring’s important and erudite recent work on ‘the degradation of the international legal order’, according to which the Iraq War is ‘blatantly unlawful’.26 Alas, the most serious neoconservative work illustrates that there is no such blatancy about the legal case. For other radical scholars, sceptical of that ‘international legal order’ and suspicious of ‘the rule of law’, such a defence of ‘legality’ may be hard to sign up to. Neoconservatism, though, has traumatised the critical left as much as it has liberalism, and in response, strategies have emerged to combine fidelity to critical theories of law with juridical attacks on empire. One has been a kind of temporary loyalty to law in the face of seeming exigency, and is thus similarly predicated on the law-versus-neoconservatism paradigm I have argued is misleading. ‘[W]ith key figures in the US administration so apparently cynical about international law … didn’t law really need championing?’27 But in the subordination of critique to a legalism in which they have fundamental doubts, the strategy has been troublesome even to those attempting it. As Marks, Craven, Simpson and Wilde put it: ‘How was it that we were international law’s earnest champions? Had not some of us based our work on the effort to knock international law off its pedestal, and expose its darker dimensions?’28 It has recently been fashionable to construct enjoined critique and juridical attack on a reading of Agamben, following him in arguing that ‘the state of exception as the original structure in which law encompasses living beings by means of its own suspension emerges clearly in the “military order” issued by the president of the United States’ authorising indefinite detention of ‘enemy combatants’, and that those taken by the US under the PATRIOT Act, ‘Taliban suspects’, and above all Guantánamo detainees are subject to, ‘a detention that is indefinite not only in the temporal sense but in its very nature as well, since it is entirely removed from the law and from judicial oversight’.29 Such detainees are 26. Bill Bowring, The Degradation of the International Legal Order? (Routledge: London, 2008), at 1 (Emphasis added). 27. Matthew Craven, Susan Marks, Gerry Simpson, and Ralph Wilde, ‘“We Are Teachers of International Law”’, 17 Leiden Journal of International Law (2004) 363-374 at 366. 28. Ibid. 29. Giorgio Agamben, State of Exception (University of Chicago Press, 2005) at 3–4.

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here paradigm figures of what Agamben terms ‘bare life’, victims of the exception that structures and underpins the law.30 This is an ingenious approach, seeming to allow the critical international law scholar to maintain a radical position vis-à-vis the law tout court – which in this model is, after all, predicated on the violence of the exception – as well as on the specifics of post-9/11 US actions because of the exception into which they pitch their victims. However, this approach to recent shifts in law has come under telling criticism. Fleur Johns has brilliantly shown that, far from being the ‘black box’ of exceptionality, the Guantánamo regime is, in fact neurotically superlegalized.31 The Agambenite may retort that this is to hypostasise the model, that the claim is not that the law is statically separated into ‘juridicalized’ and ‘exceptional’ spheres but that the former engenders the latter continously and necessarily, and the fact that the exceptional sphere may then fill with law (which will then generate its own exception, and so on) if anything underlines the central importance of that exception.32 There are very good reasons for scepticism about this, not least Mark Neocleous’s points that the extreme elasticity of the concept of ‘emergency’, and the long-term and juridically explicit ‘states of emergency’ enshrined in countless ‘un-exceptional’ juridical orders, strip that ‘exception’ of any particular analytic edge.33 However, even if one were to accept the model, to insist that what is theoretically pertinent and most politically dangerous about, say, Guantánamo, is its putative exceptionality, rather or more than the law that also – surely ‘just as also’, at a minimum – conditions it, is question-begging, indeed, ideological. In this respect, like the liberal jurisprudential attack on neoconservatism, the ‘exceptionalist’ critique of post-9/11 US law and international law acts to exonerate international law itself from imperial guilt: in this model the big prob30. See for example this 2004 interview: Ulrich Raulff, ‘An Interview with Giorgio Agamben’, 5 German Law Journal (2004) 609-614 at 610. For ‘bare life’, see Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford University Press, 1998). A few of many approaches to Guantanamo drawing on this ‘exceptionality’ include Scott Michaelson and Scott Cutler Shershow, ‘Beyond and Before the Law at Guantánamo’, 16 Peace Review (2004) 293–303; Jean-Claude Paye, ‘The State of Emergency as the Empire’s Mode of Governance’, 16 Multitudes (2004) 179–190; Rens Van Munster, ‘The War on Terrorism: When the Exception Becomes the Rule’, 17 International Journal for the Semiotics of Law (2004) 141–53; 31. Fleur Johns, ‘Guantanamo Bay and the Annihilation of the Exception’, 16 European Journal of International Law (2005) 613–35. 32. This is, indeed, a criticism levelled at Judith Butler’s supposedly one-sided insufficiently Agambenite reading of the exceptionality of Guantánamo (Judith Butler, ‘Guantánamo Limbo’, The Nation, 1 April 2002. Available at: (visited 19 April 2009). According to Michaelson and Shershow, ‘Butler … fails to recognize that the Guantánamo prisoners are both outside and inside the normative rule of law’: Michaelson and Shershow, ‘Beyond’, supra note 31, at 296. 33. Mark Neocleous, ‘The Problem with Normality: Taking Exception to “Permanent Emergency”’, 31 Alternatives (2006) 191-213.

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lem, crudely, lies where the law has a hole in it. Even if the exception is seen as inextricable from the law, through a moment of illegitimate disentangling it is somehow specifically the exception that is the problem, rather than the law. How much worse if Bellinger is right, that Guantánamo represents little more ‘typical laws of war’, and this is international law as usual?34 The embedded exoneration of international law35 is an exoneration of the mainstream liberalism/anti-neoconservatism that considers and advertises itself the defender of international law, and by extension of an alternative model of governance. In this way, the anguished insistence that this epoch has been characterised by a bleak international novum in which international law is being murdered operates to obscure continuities of imperial power: as Perry Anderson has put it, pointing out the ‘complaisance with which Clinton’s successive aerial bombardements of Iraq were met’, ‘Europe in mourning for Clinton … can unite in commination of Bush’.36 This nostalgia is one half of a temporal dyad, the other being aspirationalism about the future potential of international law – see for example Samantha Power’s fervent insistence that we have to ‘believe in international law’,37 or Anne-Marie Slaughter’s argument for ‘the future relevance, power, and potential of international law’.38 Implicit in mainstream liberalism’s insistence that international law – and hence in this model liberalism itself – lies bleeding is the claim that it only does so in the present: that yesterday was and tomorrow will be better. This goes some way to explaining the eagerness of much mainstream liberal international law to be scandalised by the rhetorical antics of the nihilists. While this has made for a liberal insistence that we are in a moment of total crisis, a jurisprudential death-drive seemingly masochistically obsessed with international law’s supposed destruction and thus international law liberalism’s own failure, the argumentative focus on an increasingly marginalised and straw-man neo34. ’When we treat a phenomenon like Guantánamo Bay as an instance of lawlessness or, in the widely circulating phrase, a “legal black hole”, we make it seem like a legal mystery. Well, Guantanamo Bay is certainly a place in which people have few rights, but it is no legal vacuum or mystery. Its basis in legal stipulations (constitutional law, special regulations, extradition arrangements) is, or should be, plain for all to see.’ Susan Marks, ‘State-Centrism, International Law and the Anxieties of Influence’, 19 Leiden Journal of International Law (2006) 339-47 at 347. 35. ‘[W]e obscure the possibility that international legal norms may themselves have contributed to creating or sustaining the ills from which we are now to be saved. … And we weaken our capacity to criticize international law’, Ibid. 36. Perry Anderson, ‘Casuistries of Peace and War’, London Review of Books, 6 March 2003. Available at (visited 19 April 2009). 37. Samantha Power, ‘Getting through these dark times’, (visited 6 January 2009). 38. Anne-Marie Slaughter and William Burke-White, ‘The Future of International Law is Domestic (or, The European Way of Law)’, 47 Harvard International Law Journal (2006) 328–52 at 330.

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con ‘international law nihilism’ has not only ducked the battle with far more sophisticated opponents but has in fact stressed international law’s importance and relevance, and thus those of its liberal champions. This aggrandizement has been a tacit collaboration between international law’s defenders-in-mourning, and its nihilist enemies: in Anupam Chander’s words, ‘there was a time when the [right-wing] critics of international law denounced it for its irrelevance … [T]he critique has shifted. International law is denounced not for being feeble, useless and irrelevant but for being vigorous, effective, and pervasive.’39 This is precisely right, and is evident in the shift from Perle’s contemptuous dismissal of international law as ‘in the way’, to Rumsfeld’s more anxious equation of it and terrorism, and to Bolton’s fear that international law might breach ‘the American citadel’.40 These later iterations of international law nihilism are of paradoxical comfort to liberal international law. There is an elegant symbiosis. The liberal mainstream has attacked the nihilist neocons for gravely injuring international law, and thus stressed neoconservative power; and those nihilists in turn have complimented international law (and by implication its advocates) by denouncing it as a mortal threat. This mutually constitutive antagonistic grooming not only helps explain why liberal international law’s partisans so often fail to engage with neoconservative advocacy of international law, but why their excoriation of certain of the nihilists has at times been almost libidinally charged. For liberals there is a mediated enjoyment: the preposterous rhetorical excesses of Bolton and Rumsfeld have flattered them. As an American bumper sticker had it after Rumsfeld’s sacking in 2006, ‘I miss hating him already’.41 Quite. I have argued that, contrary to some claims, the neoconservative wing of the Republican administration has by no means axiomatically denigrated international law. Even the NIL scholars, however, in stressing the ‘Nationalism’ in international law, have underlined the recent dominance of a strategy of American unilateralism,42 a tendency widely criticised, and usually cited as part of a claim that the US administration breaks or destroys international law. For Sands, for example, unilateralism is so self-evidently contrary to the spirit of international 39. Anupam Chander, ‘Globalization and Distrust’, Yale Law Journal (2005) 1193–236 at 1200. 40. John Bolton, ‘The Global Prosecutors: Hunting War Criminals in the Name of Utopia’, 78 Foreign Affairs (1999) 157–64. 41. Image available at (visited 6 January 2009). 42. For an exposition of recent right-wing unilateralist thought from an advocate, see Charles Krauthammer, ‘American Unilateralism’, (visited 6 January 2009). For analyses of the political conception underpinning that strategy (that avoid depoliticized commonplaces equating the agenda with Bush’s putative cowboy stupidity) see Callinicos, New Mandarins, supra note 11, and Adel Safty, ‘The Origins of the Present American Unilateralism’, available at (visited 6 January 2009).

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law that it can be cited as one of several one-word-sentence critiques of Yoo’s doctrines, as above. In similar vein, the first point of the 2006 ASIL resolution, that ‘[r]esort to armed force is governed by the Charter of the United Nations and other international law’, insists that multilateralism and international law are inextricable, indispensable and, by implication, being undermined. The questions of whether and to what extent multilateralism and the international law associated with it have been, in fact, in crisis, and do, in fact, offer an alternative to the brutal realities of Iraq must therefore be investigated.

2. Haiti Given the millennialism of so many of its proclamations about international law, one might have thought that, faced with evidence of strong countertendencies to the US international-law-nihilist unilateralism it has diagnosed as (mis-)shaping the international system, the liberal international law establishment might have reacted with surprise, pleasure, suspicion, interest, or indeed anything at all. This might seem especially appropriate if such countertendencies had been evident under the Republican administration, long predating the victory of Barack Obama in the US presidential elections. The 2006 ASIL resolution was passed two years after a large-scale, multilateral international action, involving UN intervention into a sovereign state, for the planning and prosecution of which the US closely collaborated not only with allies, but with nation-states with which relations were otherwise strained. All this occurred with the full backing of the UN Security Council. In international law terms, this action, in other words, was effectively the anti-Iraq. The February 2004 Haitian coup that saw the overthrow of President JeanBertrand Aristide, the subsequent occupation of Haiti by US, Canadian and French troops, and their rapid replacement with troops of the UN MINUSTAH mission, has been exhaustively and desperately documented by activists and the alternative media. It has been followed to varying degrees, if inadequately and with shocking racism and misrepresentation, in the mainstream press.43 As a major event in the Americas, though underdiscussed, it has been the subject of attention – if often questionable – in political science and other disciplines.44 43. See for an overview Justin Felux, ‘Debunking the Media’s Lies about President Aristide’, at (visited 6 January 2009). 44. As examples of the attention and of its partisan misrepresentation of the situation, see Daniel P. O’Neill, ‘When to Intervene: The Haitian Dilemma’, XXIV SAIS Review (2004) 163 (which cites without evidence Aristide’s ‘evident authoritarianism’); and David M. Malone, ‘Peace and Democracy for Haiti: A UN Mission Impossible?’, 20 International Relations (2006) 153–74, at 164 for the airy assertion that Aristide’s claim to have been ‘kidnapped’ by US forces was ‘far-fetched’.

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However, in mainstream international law literature, the very scholarship one might expect to show a particular interest in such politically controversial multilateral UN action, the coup has barely registered. In fact at the time of writing, by any reasonable standards astoundingly, not one of the top 25 international law journals has published an article on the coup and/or the UN mission.45 Shortly after the event, ASIL published a scant and scandalously misleading online ‘ASIL Insight’ on the Security Council’s Resolution 1529 endorsing a UN force in the country, which rehearsed the standard and spurious line that ‘former Haitian President Jean-Bertrand Aristide, facing insurrection and public disorder, resigned and left the country’.46 The same year saw one journalistic sketch in The Vanderbilt Journal of International Law consisting largely of platitudinous aspirations in the democratising potential of the Haitian judiciary (a grim joke, given that group’s recent history and complicity in the coup, as will be argued) alongside rote insinuations against Aristide.47 These two five-year-old offerings represent more or less the entirety of mainstream international law scholarship’s reflections on the Haitian coup and its bloody five-year aftermath. Nor is there any more attention paid in the lively international law blogosphere, even freed of some constraints and delays of academic publication.48 Since 2004 there has been little but the odd line in passing in essays on other topics, rehearsing propaganda such as that by some ineluctable and tragic Haitian logic divorced from any imperialist machinations, ‘[i]n February of 2004,

45. Ranked in 2006 by the Washington & Lee Law Library: see Roger Alford, ‘Top International Law Journals’, (visited 6 January 2009). 46. Frederic L. Kirgis, ‘Security Council Resolution on Multilateral Interim Force in Haiti’, (visited 6 January 2009). 47. Ben J. Scott, ‘Order in the Court: Judicial Stability and Democratic Success in Haiti’, 37 Vanderbilt Journal of Transnational Law (2004) 555-572. 48. The most important international law blog, Opinio Juris, , has never mentioned the events. UN Dispatch has presented one anodyne ‘snapshot’ (its own term) of MINUSTAH (and repeated the spurious claim that Aristide ‘fled’) (visited 6 January 2009); Democracy Arsenal has made two one-line mentions of Aristide’s overthrow, once even mentioning in passing ‘[t]he U.S. role in helping depose Haitian President Jean-Bertrand Aristide’, but not to condemn it: rather to condemn South Africans for their ‘virulent animosity towards America’ (visited 6 January 2009). Of the whole of the extensive Opinio Juris blogroll, which covers all the most important international law blogs, only two blogs deserve credit for raising critical questions about the event (or indeed mentioning it for more than one line): those of legal philosopher Brian Leiter and of the lawyer Jeralyn Merrit, each of whom twice questions the official story (visited 6 January 2009) and (visited 6 January 2009); and (visited 6 January 2009) and (visited 6 January 2009).

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Haiti slipped back into chaos and despair’,49 that the foreign military presence has meaningful Haitian government consent,50 that more than once the US ‘forced the dictators and their Tonton Macoute death squads out of Haiti’,51 and so forth. While the prestigious international law fora have had nothing to say about the international law of this situation, there have been stalwart efforts in other arenas by activist lawyers, such as Brian Concannon, Marjorie Cohn and Ira Kurzban (President Aristide’s attorney), to question the legality of the coup and occupation.52 The progressive National Lawyers Guild has organised two human rights delegations to the country, and set up a subcommittee on Haiti ‘to promote justice and sovereignty for the Haitian people’.53 In 2006, a group of Haitian citizens and human rights organisations filed a petition at the Inter-American Commission on Human Rights, claiming that the coup violated international law that ‘protects citizens’ democratic choice of government’.54 In March 2004, the National Conference of Black Lawyers filed a complaint with the International Criminal Court’s prosecutor, requesting investigation on ‘whether charges may be brought against Bush Administration officials for war crimes in the kidnapping of Jean-Bertrand Aristide’.55 2005 saw the first session of the International 49. Kirsti Samuels, ‘UN Reform: Post-Conflict Peace-Building and Constitution-Making’, 6 Chicago Journal of International Law (2006) 663, at 663 (emphasis added). 50. Adam Roberts, ‘Transformative Military Occupation: Applying the Laws of War and Human Rights’, 100 American Journal of International Law (2006) 500. 51. John Davenport, ‘The Just War Tradition and Natural Law: A Discussion: Just War Theory Requires a New Federation of Democratic Nations’, 28 Fordham International Law Journal (2005) 763-785 at 776–777. For an explicit attempt to equate Aristide’s supporters with Duvalierist death squads, see Malone, ‘Peace and Democracy’, supra note 43, at 163: ‘Aristide’s much feared militia supporters, the Chimères, elicited nightmare memories of the Tontons Macoutes’. 52. See for example Brian Concannon, ‘Can the New Congress Help Uncover the Truth?’, (visited 6 January 2009); Marjorie Cohn, ‘The Illegal Coup in Haiti’, (visited 6 January 2009); and Ira Kurzban, ‘Diplomacy by Death Squad’, , (visited 6 January 2009). See also the University of Miami School of Law’s two important investigations into human rights violations in Haiti since 2004: Thomas M. Griffin, Haiti: Human Rights Investigation November 11–21, 2004, (visited 6 January 2009); and Anna Mance, Quinn Smith and Rebecca Yagerman, Haiti: Human Rights Investigation March 11–16, 2006, (visited 6 January 2009). 53. The subcommittee’s website is at (visited 6 January 2009), from where the damning summary reports of the Human Rights Delegations can be accessed. 54. ‘On Eve of Haiti’s Elections, Haitian Citizens and Four Human Rights Groups File Petition against United States for Overthrowing Haiti’s Democracy in 2004 Coup D’Etat’, (visited 6 January 2009). For more material on this petition, see (visited 6 January 2009). 55. The text of the complaint is at (visited 6 January 2009). The group claimed ICC jurisdiction on the grounds that though neither the US nor Haiti are parties to the Rome Statute, the Central African Republic, to where Aristide was taken, is. ‘Summary of the First Session of the International Tribunal on Haiti’, (visited 6 January 2009). Details of these prosecutions were passed on to the International Criminal Court, without result. For my version of left international-law scepticism, see Miéville, Between, supra note 19, especially at 295–320. The categorisation is Oscar Schachter’s, in ‘The Invisible College of International Lawyers’, 72 Northwestern University Law Review (1977) 217–226. On various ‘broad’ and ‘narrow’ definitions of imperialism – never an uncontroversial category – and my own usage, see Miéville, Between, supra note 19, 226–30. Peter Hallward, Damming the Flood: Haiti, Aristide, and the Politics of Containment (Verso: London, 2007). Also see his 2004 article, ‘Option Zero in Haiti’, 27 New Left Review (2004) 23-47. Unsurprisingly, his analysis has not been without its critics. His book was savagely and lengthily criticized by Michael Deibert (the author of Notes on from the Last Testament: The Struggle for Haiti (Seven Stories: New York, 2005), a book supportive of Aristide’s overthrow), at

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The officially sanctioned story has it that after his initial election in 1990, the liberation theologist Aristide began to morph into yet another brutal tinpot dictator; that he was overthrown in 1991; replaced by the good graces of the US in 1994; degenerated even further, engaging in large-scale electoral fraud in 2000; until a mass movement finally overthrew him in 2004. At this point, as the ‘ASIL Insight’ quoted above dutifully alleges, Aristide resigned and left. This is a risible misrepresentation. Aristide was and remains the key leader of Lavalas, the popular movement that arose in the 1980s and represented a significant threat to the power of the (US-supported) Haitian elite: a military coup under General Raoul Cédras in 1991 in response to Aristide’s election victory in 1990 left about 5,000 people dead. In 1994 Aristide, suitably hamstrung, or so the US and its allies thought, was allowed to return (when the Haitian junta became too unseemly to its sponsors). After winning a second election in 2000, and proving that despite the extreme financial and political constraints that straitjacketed him, Aristide still had unacceptable aspirations to shift power in Haiti somewhat towards the poor and grassroots, in 2004 he was forcibly expelled from his country by US marines, as the culmination of a sustained campaign against him and his renewed Lavalas movement by (above all) the US, France, Canada and Haitian domestic elites. The core of the domestic opposition, far from being the broad-based movement of ‘civil society’ as which it was represented, was a somewhat fractious alliance between old-school Duvalier-style Macoutistes, right-wing officers who never forgave Aristide for disbanding the army in 1995, and sweatshop owners such as Andy Apaid (an American citizen and leader of the ‘Group of 184’, the International Republican Institute-backed collective of business leaders invariably described in the mainstream media as a ‘grassroots initiative’). Lavalas was and remained the most popular political movement in the country, in large part because despite the concerted and unrelenting pressure of the US, France and the international financial institutions, and their success in insisting on neoliberal ‘reforms’, Lavalas continued to attempt to build what Aristide called ‘poverty with dignity’, placing what meagre bulwarks were possible against the total collapse of social programs and labour standards. Discussing Haiti as long ago as 1922, one international law scholar expressed concern that ‘[f ]ree (visited 6 January 2009). The dignified tone of Hallward’s reply, available at (visited 6 January 2009), is admirable, but almost disappointing in its restraint. By comparison, one can be glad that Justin Podur overcame his stated reluctance to debate Deibert (whose response to Podur’s 2006 review of his book is available at (visited 6 January 2009): the original review is Justin Podur, ‘Kofi Annan’s Haiti’, 37 New Left Review (2006) 151-159). Podur’s 2006 rebuttal of Deibert’s claims, at , (visited 6 January 2009), also devastatingly lays bare his ad hominem, tendentious, imperially apologetic and, according to at least one of his supposed informants (Patrick Elie), mendacious methodology.

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elections in a good many countries would mean the elimination of those most fit to govern’, and 78 years later, so, from the US point of view, it proved.61 Law, especially qua legitimation, was key to the coup. Far from representing ‘Haiti’s most promising source of strong, domestically oriented progress’,62 much of the Haitian judiciary, as organised in the Haitian Judges’ association (ANAMAH), was a key partner in the UN overthrow of Aristide, reflecting the organisation’s creation with the careful planning and participation of the US and Canada through USAID-proxy IFES (International Federation of Electoral Systems), as part of a deliberate campaign of ‘sensitization’ of the judiciary to accentuate elite opposition to Aristide.63 After Aristide’s overthrow, ANAMAH made itself eminently useful to the coup regime, for example keeping awkward cases in legal limbo. When then-minister of justice Bernard Gousse dismissed Judge Jean-Sénat Fleury, who had demanded the release of an opponent of the Latortue government detained without evidence, not only did ANAMAH raise no objections, but the head of the organisation, Judge Jean Peres Paul, who had been active in the anti-Lavalas opposition before the coup, took over the case and kept the prisoner, Father Gerard Jean-Juste, in jail.64 The pious international mantra of ‘judicial independence’, in other words, did not mean independence from those plotting a coup against a democratically elected and popular government. Crucially for the consideration of international law, the coup, its preparations, and the occupation, have been astonishingly successful exercises in multilateral diplomacy. The preparations for the coup were an opportunity for the US and France to put some of the ill-temper over Iraq behind them, as the new and old colonial powers worked together to orchestrate the vilification of Aristide and to plan for his overthrow, with the enthusiastic collaboration of Canada. The three countries collaborated to train right-wing paramilitary rebels in the Dominican Republic in preparation for the coup,65 support the anti-democratic 61. Philip Marshall Brown ‘International Responsibility in Haiti and Santo Domingo’, 16 American Journal of International Law (1922) 433-437 at 434. 62. Scott, ‘Order’, supra note 46, at 574. 63. This is brilliantly researched and laid out in Griffin, Haiti, supra note 53. 64. Stuart Neatby, ‘The Politics of Finger Wagging’, (visited 6 January 2009); Brian Concannon, ‘In Haiti, the Chickens are Coming Home to Roost’, (visited 6 January 2009). Judge Peres Paul also personally ordered the arrest of two journalists investigating the harassment of Fr. Jean-Juste, Kevin Pina and Jean Ristil, for ‘disrespect to a magistrate’: ‘Police in Haiti Arrest Two Journalists’, (visited 6 January 2009). 65. ‘Witnesses: U.S. Special Forces Trained and Armed Haitian Anti-Aristide Paramilitaries in D.R.’, (visited 6 January 2009). On Canada’s preparations, see Anthony Fenton and Dru Oja Ja, ‘Declassifying Canada in Haiti: Part I’, (visited 6 January 2009), and ‘Declassifying Canada in Haiti: Part II’, (visited 6 January 2009).

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rightwing forces that would replace Lavalas, the brutal Interim Government of Haiti led by Gérard Latortue between 2004 and 2006, and ultimately, when massive electoral fraud (including ballots burnt and dumped)66 failed to halt the 2006 election to president of René Préval (seen by the populace as the candidate closest to Aristide and Lavalas), ensured that his administration would not stray from permitted paths. (Préval, indeed, has dutifully requested the extension of the hated MINUSTAH mandate.)67 UN declaration 1529 was backed by the Security Council and was read out at a self-congratulatory press conference by John Bolton, the very anti-multilateralist bogeyman so denounced by international law liberals. International support was never total: both the African Union and CARICOM, the Caribbean Community, opposed the coup (CARICOM suspending Haiti’s membership after Aristide’s overthrow). However, the UN invasion has gained the active support of countries, such as Spain, opposed to the Iraq War, and has seen the enthusiastic collaboration of Latin American states in other contexts considered progressive (though notably not Venezuela, whose President Chavez continues to support Aristide): indeed, the military operation is under Brazilian leadership. The head of the UN Stabilising Mission has been Chilean, Guatemalan, and is at the time of writing (Hédi Annabi) Tunisian. The military force includes personnel from Argentina, Bolivia, Brazil, Canada, Chile, Croatia, Ecuador, France, Guatemala, Jordan, Nepal, Morocco, Pakistan, Paraguay, Peru, Philippines, Spain, Sri Lanka, the US and Uruguay. Police and civilian personnel also include members of many African nations, including Benin, DR Congo, Burkina Faso, Chad, Rwanda, Senegal, Togo, et al, as well, importantly, as China. The lack of attention paid by the discipline of international law to MINUSTAH is even more astonishing given this amazingly successful multilateral cooperation, this rainbow nation of imperial proxy invaders. Despite racist reporting that undermines the testimony of victims,68 it is clear that MINUSTAH and the UN unleashed, supported, and participated in a reign of terror. In 2006, based on an extensive survey of households the prestigious British medical journal The Lancet calculated that 8000 murders and 35000 rapes had occurred in greater Port-au-Prince alone in the two years since the coup. For the murders, ‘almost half of the perpetrators [were] identified as political actors’, the overwhelming majority opponents of Aristide, protected and collaborated 66. See Joseph Guyler Delv, ‘Burned Ballots Inflame Haitian Election Tensions’, (visited 6 January 2009). 67. ‘Minustah Mandate Extended in Haiti, Recognizes Risks of Premature Withdrawal’, (visited 6 January 2009). 68. ITN television news on 18 January 2006, for example, reporting an injured woman telling her story, explained that ‘this woman insists she was shot by [UN] peacekeepers’ (emphasis mine, but audible in the original), as if that claim was self-evidently questionable.

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with by the UN, including ‘[a]rmed anti-Lavalas groups and their partisans, along with the HNP [Haitian National Police] and other government security forces’. UN troops were identified as responsible for serious abuses including violence and arbitrary arrest and were, besides criminals, ‘[t]he most commonly identified perpetrators of death threats’69 – on which threats, as will be clear, they have had little hesitation in acting. UN troops have justified Haitian police death-squad attacks against Lavalas supporters, and, in the words of a Harvard report, ‘effectively provided cover for the police to wage a campaign of terror’.70 The UN has also taken a more direct role, with what one writer has described approvingly as ‘robust raids’.71 MINUSTAH troops have repeatedly besieged, occupied and attacked pro-Lavalas slums like Bel Air and Cité Soleil, in the name of ‘anti-gang’ activity, sometimes accompanied by Haitian police, leading to arbitrary mass arrests and many civilian deaths.72 Hospitals have not been spared from UN attack.73 MINUSTAH has fired on mass demonstrations demanding a return to democracy and protesting the electoral fraud committed against Preval in 2006.74 To this day MINUSTAH maintains a checkpoint controlling entrance and egress to Cité Soleil. MINUSTAH has also perpetrated more targeted – if hardly ‘precision’ – attacks. On 6 July 2005, 350 UN troops, ‘not even using Haitian proxies’,75 backed by helicopter and armoured vehicles, stormed Cité Soleil and as part of 69. Athena R. Kolbe and Royce Hutson, ‘Human rights abuse and other criminal violations in Port-au-Prince, Haiti: a random survey of households’ The Lancet (2006), (visited 6 January 2009). The article is discussed by one of the authors at (visited 6 January 2009). 70. Harvard Law Student Advocates for Human Rights and Centre de Justiça Global, ‘Keeping the Peace in Haiti?’, (visited 6 January 2009); see also Reed Lindsay, ‘Police terror sweeps across Haiti’, The Observer, 31 October 2004. Available at (visited 19 April 2009). 71. Malone, ‘Peace and Democracy’, supra note 43, at 166. 72. Isabel MacDonal, ‘DDR in Haiti: The UN’s cleansing of Bel Air ahead of elections’, (visited 6 January 2009); ‘Haiti: New Attacks on Cite Soleil Residents by UN Troops’, (visited 6 January 2009); Wadner Pierre and Darren Ell, ‘Brutalized and Abandoned: Residents of Cite Soleil Speak Out’, (visited 6 January 2009). 73. Aaron Lakoff, ‘The Politics of Brutality in Haiti’, (visited 6 January 2009). 74. Melissa McNamara, ‘Haiti Election Results Spur Violence’, (visited 6 January 2009). 75. Kim Ives, editor of Haiti Progres, interviewed on Between the Lines July 2005, available at , transcript at ‘U.N. Troops Accused of July 6th Massacre in Haiti’s Cite Soleil’, (visited 6 January 2009).

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a massive assault, assassinated the immensely popular community organiser and Lavalas militant – ‘gang leader’ in the parlance of the Haitian business elite and the New York Times76 – Emmanuel Dread Wilme. The attack and its aftermath were caught on film, making a mockery of UN claims to be returning fire against ‘armed bandits’:77 in fact their indiscriminate attacks led to the deaths of at least 26 civilians including many children. On 22 December 2006, MINUSTAH again assaulted Cité Soleil with an ‘anti-gang’ justification (and were again caught on film), killing around 30 civilians, again including children.78 With such a record, the claim that MINUSTAH should be ‘criticized for not being aggressive enough’ is chilling,79 and the formulation that ‘[d]espite the arrival of more than 7,000 United Nations peacekeepers, Haiti continues to spiral downward into chaos and violence’80 grotesquely backwards.81 This is multilateralism as terror.

3. The Ramifications of Multilateral Terror An issue of this political magnitude and controversy, informed by bread-and-butter international law problematics such as intervention, sovereignty, the UN and multilateralism, that in passing undermines the given of a supposedly inexorable US unilateralism, should obviously be of central interest to international law scholars. Liberal international law’s ignoring of Haiti cannot, then, be apologised away as oversight. This no-discussion is not an absence but an absent presence, a structuring silence in mainstream international law. On the foundational grounds according to which mainstream opposition to the Iraq War has been based – the unilateral intervention against another coun76. Walt Bogdanovich and Jenny Nordberg, ‘A Haitian Slum’s Anger Imperils Election Hopes’, New York Times, 29 August 2005. Available at (visited 19 April 2009). 77. Stills available at (visited 6 January 2009), a discussion of the events and evidence at ‘Haiti: Revelations of UN’s role in massacres’, (visited 6 January 2009). 78. ‘UN in Haiti accused of second massacre’, , (visited 6 January 2009). 79. Bathsheba N. Crocker, ‘Excerpt from Mission Not Accomplished, (visited 6 January 2009). 80. Daniel P. Erikson and Adam Minson, ‘The Caribbean: Democracy Adrift?’, 16 Journal of Democracy (2005) 159, at 165. Emphasis added. 81. The hope that a focus on human-rights law might ameliorate these brutalities, that such ‘reminds everyone that the purpose of the mission is to measurably improve the full-spectrum of human rights of human rights as tied to the root causes of the conflict in Haiti’ (Todd Howland, ‘Peacekeeping and Conformity with Human Rights Law: How Minustah Falls Short in Haiti’, 13 International Peacekeeping (2006) 462-476 at 469) is quite utopian. As will be argued, the purpose of the mission is very different.

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try’s sovereignty without UN Security Council Resolution backing – the Haitian coup against democracy is easily seen as legal. With this, though silently, the mainstream agrees and makes no complaint. When John Yoo, perhaps cheekily, mentions Haiti in passing as a situation as one where the US stops a ‘murderous civil war’,82 he does not risk being disagreed with by most of his fiercest critics. Two factors have underlied not just this implicit agreement, but liberalism’s silence about it. One has been the risk for mainstream international law in interrogating the case. The Haiti invasion, in its cross-continental multilateralism, is best safely ignored lest it undermine the liberal claim to be defending a multilateralism under attack. Here that multilateralism is, after all, a fabulously successful strategy employed by the dreaded neoconservatives. If they can be multilateral too, liberal international law might have to ask, then what are we? This is international law’s negative silence of anxiety. The fact of the neoconservatives and the Manichean politics that have characterised their power has led liberals and even some radicals to construct a series of political binaries, and then to equate those binaries with each other. Thus in this discourse: Unilateralism – versus – Multilateralism equals International law nihilism – versus – International law advocacy equals Neoconservatism – versus – Liberalism equals (in some iterations) Imperialism – versus – Anti-Imperialism equals (in the crudest formulations) Republicans – versus – Democrats Even if one accepts a temporary heuristic use to any of those schema individually, none of the ‘equal’s follows. I have argued through the examples of Yoo and others against the equation of neoconservatism and international law nihilism:

82. John Yoo and Robert J Delahunty, ‘Statehood and the Third Geneva Convention’,

46 Virginia Journal of International Law (2005) 131-164.

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now the Haiti invasion of 2004 shows that multilateralism can be just as if effective an imperial strategy as, if not a more effective one than, unilateralism. Liberal international law may have avoided considering that, but the right is not so coy. In a fascinating 2004 article in the hard-right National Review – the title of which, ‘Safety in Numbers: the Limits of Unilateralism’, makes clear the thesis – influential conservative writer (and ex-advisor to Thatcher) John O’Sullivan engages with this issue precisely through the optic of Haiti.83 O’Sullivan warns that because of the potential for ‘imperial overstretch’, the US has worked with the international community, and that ‘global isolationism is dead’, replaced with a ‘limited institutional multilateralism’.84 He is clear that the purpose of this multilateralism is to further American interests. Despite indulging an obligatory swagger when invoking ‘multilateral respectability’ (‘don’t laugh – it shuts up France and the UN General Assembly’), the substantive argument is not that the US is just shamming, but that it is sometimes easier – even ‘necessary’ – to rule multilaterally. The Haitian coup proves that such multilateralism does not necessarily mean only an effort at some effete, touchy-feely hegemony over hearts and minds, but can be manifest in the violence of shock-and-awe, as in the UN-sponsored terror in Port-au-Prince. For scholars for whom multilateral international law is a progressive bulwark against a hypostasized unilateralism, this is why Haiti is difficult to engage with – it rebukes their project. Of course, many of those who express support for multilateralism would be horrified to think that the carnage of Port-au-Prince is what they are signing up for. But in the current context of international power, that is the multilateralism officially on offer. The units of such actually-existing multilateralism are capitalist states engaged in inevitable inter- and sub-imperialist rivalries and violence. As embedded in the modern international system, official multilateralism is not a Weltanschaung but an imperialist strategy, and one which can coexist with its supposed opposite, unilateralism, without much difficulty. A key problem with the ‘unilateral-versus-multilateral’ discourse is that these units have been evacuated of any fundamental dynamic. In reality they are not the drivers of state behaviour, but functions of underlying interests, with concomitant strategies and methodologies, and as such their iterations are liable to shift suddenly, as with any decent and flexible strategy. Getting at those underlying dynamics leads us, finally, to the second reason that the 83. John O’Sullivan, ‘Safety in Numbers: the Limits of Unilateralism’, National Review, 22 March 2004. Available at (visited 19 April 2009). 84. For another argument from the right on the limitations of unilateralism, see Clyde Prestowitz, Rogue Nation (Basic Books: New York, 2003) and his discussion of the book at (visited 6 January 2009), where he claims, similarly to O’Sullivan, that ‘unilateralism can have very high costs’.

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liberal international law mainstream does not interrogate the Haiti action: the silence is of complicity. Though explicit liberal legal engagement with the coup has been largely absent, where necessary, law being a ‘maze of plausibilities’,85 it has not been difficult to take a position contrary to the coup’s radical legal critics, and defend it. As I have argued, its multilateral UN-backed nature has made it legally uncontroversial, to the point of near-invisibility, in mainstream international law. Those few inclined to more explicit, fashionable legal justifications, and/or more robust liberal interventionism, have cited the porously bordered categories of peacekeeping, human rights and humanitarian intervention, and the emerging ‘new international norm’, that is, it is claimed, on its way to becoming part of customary international law, the ‘responsibility to protect’ (R2P).86 (It is further evidence of the coup’s looming absent presence to liberal and liberal international law discourse that while Haiti was recently ‘characterized by some as an “ideal R2P situation” … [s]ince the coup, however … Haiti has dropped off the R2P radar. Dozens of papers, panels, symposiums, and conferences seem to have studiously avoided Haiti when discussing R2P’.)87 There are not only no mainstream qualms over the legality but, crucially, over the politics of the action, to lead to investigation or attention, let alone dissent. It is not that the imperialism of multilateralism is hidden. Whatever a grassroots ‘unofficial’ invocation of multilateralism might mean – and such might perhaps operate on some anti-imperialist axis88 – for the liberal establishment the appeal of multilateralism is precisely that it is part of an imperialist strategy. 85. Alfred Thayer Mahan, Naval Strategy (Little, Brown: New York, 1911) at 120. 86. On the intervention as ‘peacekeeping’, see for example Boleslaw Adam Boczek, International Law: A Dictionary (Scarecrow Press: Lanham, MD, 2005) at 409, 410; and Alex J. Bellamy and Paul Williams, ‘Who’s Keeping the Peace? Regionalization and Contemporary Peace Operations’, 29 International Security (2005) 157–195. For an example of approval of the intervention on the grounds that ‘there was little question but that human rights and humanitarian concerns … were the driving force behind the Chapter VII action’, see Christopher J. Le Mon and Rachel S. Tayler, ‘Security Council Action in the Name of Human Rights’, 11 African Yearbook of International Law (2005) 263–298 at 292; For an invaluable critical look at the arguments over P2P in Haiti, see Anthony Fenton, ‘Haiti and the Danger of the Responsibility to Protect (R2P)’, (visited 6 January 2009). For an overview of NGOs tacit support for the coup, in particular those of Canadian organisations, by reference to human rights, see Kevin Skerrett, ‘Rights and Democracy: A Government-Owned “Human Rights” Group’, (visited 6 January 2009), and Yves Engler, ‘NGOs and Imperialism, (visited 6 January 2009). 87. Fenton, ‘Haiti’, supra note 87. 88. Though inchoate, one might, for example, see a seed of some such alternative multilateralism of activists and progressive organisations in the Porto Allegre Haiti Declaration agreed at the World Social Forum in 2005, (visited 6 January 2009), condemning the coup.

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This should be entirely uncontroversial, as that establishment makes few bones about it. With the increasing troubles and costs of unilateralist neoconservatism – now that, in O’Sullivan’s words, ‘global isolationism is dead’ – a shift in emphasis and attention towards multilateralism has been occurring,89 and the multilateralist-imperialist wing of US politics is becoming more confident. I have argued that this phenomenon is not isolated to the Democrats. However, such an emphasis is less alienating to sections of that party’s base than to the Republicans’, and exemplary of the trend is the new assertiveness of the Truman National Security Project, an organisation of Democrats ‘dedicated to educating progressive leaders in national security’90 (of which Anne-Marie Slaughter, that leading figure in the anti-neoconservative international law establishment, is on the advisory board). For the Truman Project, multilateralism is inextricable from US imperialism, as the founders’ breathless paean to violence illustrates. American power was real, vast, and a force for good. We never knew the pain of military stalemate and the self-doubt of the Vietnam generation. Instead, we watched our first war on television, culminating in the first Gulf War’s stunningly rapid victory. That war showed us both the power of military force, and the broad potential of multilateralism.91

Speaking to the ASIL, Hillary Clinton was clear about the instrumentalism of multilateralism and international law for US imperialism, and about the non-opposition between unilateralism and multilateralism (while indulging in the traditional oversimplification of the Republicans as IL-nihilist unilateralists described above). Contrary to what many in the current administration appear to believe, international law and international institutions are tools that help us to promote and advance our interests and values, not traps that limit American power. … The Bush Administration has presented the American people with a series of false choices: force versus diplomacy, unilateralism versus multilateralism, and hard power versus soft. Seeing these choices as mutually exclusive alternatives reflects an ideologically blinkered vision of the world that denies America the tools and the flexibility necessary to lead and succeed.92 89. See Grant T. Harris, ‘The Era of Multilateral Occupation’, 24 Berkley Journal of International Law (2006) at 1. 90. According to their website, (visited 6 January 2009). 91. Rachel Kleinfeld and Matthew Spence, The September 11 Generation: The National Security Beliefs of Voters Under 30, (visited 6 January 2009). It is notable that in this passage the problem that beset the ‘Vietnam generation’ was their ‘self-doubt’, rather than what might reasonably have provoked it: the Vietnam War itself. See also the 2003 paper ‘Progressive Internationalism: A Democratic National Security Strategy’, published by the Progressive Policy Institute, (visited 6 January 2009). 92. In her responses to an ASIL survey, (visited 19 April 2009).

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In neither case is the terminology of ‘world community’ or ‘international society’ even used – there is no dissembling that this is multilateralism in the service of American ‘interests’ and ‘power’. In a discussion at the Carnegie Council in 2003, this problematic was made clear in a question to writer and ex-Reagan advisor Clyde Prestowitz, when he was asked to ‘explain to Americans why a multilateral approach is in America’s interest, as opposed to being in the interest of the rest of the world’93 – a challenge he took up. Then-President-elect Obama put the case in its simplest form in his own response to the ASIL survey of presidential candidates: ‘Since the founding of our nation, the United States has championed international law because we benefit from it.’94 Such ‘American interests and power’, however, are of course not abstract (though they often appear so in the realpolitikal discourses of both the right and of liberalism): in the modern epoch they, and the imperialism of which they are another way of speaking, are functions of competitive accumulation in a framework of capitalist states. It is not only a belief in the efficacy of this imperial methodology that motives the widespread, untheorised, often unspoken, and unproblematised mainstream support for the Haitian coup: it is also its specific fruits and the sectors of capital that benefit from it. Aristide’s government, though hemmed in by crushing instruments of international financial coercion, had put in place important social progams, that had, for example, substantially reduced illiteracy, and transmission rates of HIV.95 Unsurprisingly, such gains were immediately undermined by the post-coup government, which, for example, abolished the Ministry of Literacy and eliminated subsidies for schoolbooks. The Latortue government turned its back on the Lavalas administration’s efforts to crack down on tax evasion by the rich, instead announcing a three-year tax holiday to large businesses. Fertilizer subsidies for poor farmers were cut, leading to a doubling in price.96 The agenda of the new administration, and the basis for its domestic and international support, were quickly clear. Aristide had been criticized even by some of his own supporters for allowing the setting-up of free-trade zones favoured by sweatshops on the Dominican/Haitian border: he did, however, retain some collective bargaining rights for workers in 93. See the discussion at (visited 6 January 2009). Emphasis mine. 94. In his answers to the ASIL survey, (visited 6 January 2009). 95. For these and other achievements see Laura Flynn and Robert Roth, ‘We Will Not Forget: The Achievements of Lavalas in Haiti’, (visited 6 January 2009). See also Stephen Lendman, ‘Before the Coup: Haiti’s Achievements under Aristide and Lavalas’, (visited 6 January 2009). 96. See Justin Felux, ‘Let Them Eat Gruel’, (visited 6 January 2009). Nikolas Barry-Shaw, ‘The Crucifixion of Haiti’, (visited 6 January 2009).

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those zones. These rights were rolled back almost immediately after the coup, and the minimum wage, that had been doubled in 2003 (though it had remained inadequate) was cut. In January 2005, worldwide textile quotas which had been in place since 1961 were lifted, with the end of the 10-year WTO Agreement on Textiles and Clothing. This had long been a cause for tremendous concern among textile manufacturers, particularly in the US, with ‘the expectation that there would be ‘a major shift in sourcing clothing and textile imports to China’.97 The opening up of this Haitian zone of brutalized and super-cheap labour just before this date (the timing, it has been claimed by some, not coincidental) was of great help to ‘big textile’ such as the Canadian company Gildan, which swiftly moved in – and whose clothes are made in Haiti by sweatshops belonging to Andy Apaid, leader of the Group of 184.98 The brutalities of the sweatshop labour and their cost-reducing effects are of course not side-effect but the specific desiderata of capital, particularly US and Canadian capital in their newly tariff-less battles with China and other textile manufacturing economies. In the formulation of Lloyd Wood, spokesperson for the American Textile Manufacturers Institute, with the enormous weight of China in the industry, a ‘basketcase’ like Haiti will be competing for any textile work.99 In an enthusiastic if coy reference to Haiti’s poverty wages and devastating conditions, Gildan’s 2004 end-of-year report explained that its ‘new hubs in Dominican Republic/Haiti and Nicaragua are expected to have even lower cost structures than Honduras’.100 This is not to say that there will be no inter-capitalist disputes on these issues. The US’s 2006 HOPE bill (Hemispheric Opportunity through Partnership Encouragement – and its 2008 ‘sequel’, HOPE II),101 that with various qualifications allowed the duty-free export of clothes made from cheap (often Chinese) textiles from Haiti to the US, was unsurprisingly opposed by the American National Council of Textile Organizations, which understood it as a threat to their export of fabric to Haiti, while ‘U.S. clothing importers strongly support[ed] the measure’.102 This bickering was between different sectors of the garment industry: 97. Michael F. Martin, ‘CRS Report for Congress: U.S. Clothing and Textile Trade with China and the World: Trends Since the End of Quotas’, (visited 6 January 2009). 98. On the conditions in the Apaid factories, see among other reports Andréa Schmidt, ‘Andy Apaid and Us’, (visited 6 January 2009). 99. Anthony Fenton, ‘Gildan Activewear’, (visited 6 January 2009). 100. See the report at (visited 6 January 2009). 101. HOPE was passed into law in 2007, and HOPE II passed as part of the Food Conservation and Energy Act of 2008. 102. ‘An easy and smart way to help impoverished Haiti’, Tacoma News Tribune, 10 July 2006. For the oppositional NCTO testimonies see (visited 6 January 2009), and (visited 6 January 2009). 103. ‘Confederation of Haitian Workers Gives Critical Support to Préval/Alexis HOPE Initiative’, (visited 6 January 2009). 104. See also Patrick Bond, ‘End of Neoliberalism? Sorry, Not Yet’, (visited 6 January 2009). 105. Janet Hook and Dan Morain, ‘Clinton, Obama are darlings of Wall Street’, LA Times, 21 March 2008. Available at (visited 19 April 2009).

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With Canada taking a leading role in the discussions on Haiti’s future, the ‘Willson House process’, named after the location in which the talks started in 2005, has featured ‘open exchanges between the private sector and donors’.106 Furthering the neoliberal assumptions embedded in the Interim Cooperation Framework agreed between the World Bank, UN, and Inter-American Development Bank, among others, and Haiti’s Latortue administration, for the period 2004 to 2006, the Willson House process has put forward a model according to which large-scale privatization of Haitian state enterprises is a sine qua non of development.107 Education was chosen as a laboratory for the privatisation of public services.108 The concern of the participants that the elections of 2006 would put in place another ‘anti-business’ government explained the insistence, in the official record of the inaugural meeting, that ‘it is imperative to act in anticipation of the elections’ – in other words, to begin a process that a democratically elected government could not undo.109 In 2007, the Préval government duly announced the privatization of Haiti’s national telephone service Téléco, ED’H (Electricity of Haiti), and APN, the national port authority.110 The coup and post-coup political economy of Haiti have, then, been exemplary: they make clear that prioritizing democracy and grassroots development over the requirements of capital will not be permitted. This is why Aristide’s government was not allowed to stand. It was the furthering of this overarching neoliberal agenda (currently taking a serious ideological battering) that made this a popular coup for most sections of American capital, and supported (if quietly) by liberals as well as neoconservatives. The coup and occupation have, then, been, in the mainstream, legally uncontroversial. The understanding that a key function of international law has always been to maximize profit is not a paranoia restricted to leftists, but has 106. ‘The Role of the Private Sector in Improving Educational Outcomes in Haiti’, (visited 6 January 2009). 107. See for example the ‘suggestion’ that ‘donors incorporate a focus on privatization in addition to the traditional focus on infrastructure in their development strategy’. Inter-American Dialogue and FOCAL, ‘The Role of the Private Sector in Rebuilding Haiti’ (pdf ), (visited 6 January 2009). On the ICF, see Mark Schuller, ‘Haiti’s Interim Cooperation Framework: Tail Wagging the Dog?’, (visited 6 January 2009), and Cecilia Ann Winters, ‘Institution Building in Haiti: An Assessment of the Interim Cooperation Framework’, 9 Journal of Human Development (2008) 283–303. 108. See the hope that ‘the Willson House process will carry on and produce new development initiatives beyond education’: Leslie Filion-Wilkinson and Carlo Dade, ‘Public-Private Collaboration in Education: A New Development Model for Haiti’, (visited 6 January 2009). 109. Ibid. For an invaluable analysis, see Kabir Joshi-Vijayan, ‘FOCAL’s Role in the Privatization of Haiti’, (visited 6 January 2009). 110. ‘Haiti: Preval to Privatize Téléco, ED’H, and APN’, (visited 6 January 2009).

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been proclaimed by some of international law’s most honoured practitioners. In a 2005 speech at Goldman Sachs entitled ‘The Dividends of International Justice’, Carla del Ponte, Prosecutor of the International Criminal Tribunal for the former Yugoslavia, admirably clearly makes the argument that ‘international justice’, in making countries safe for investment, brings ‘the best dividends’. With typical liberal opposition of international law and the Iraq war (‘The yearly cost of the Tribunal is less than one day of US military presence in Iraq’), she stresses to her corporate audience that ‘international justice is cheap’ – ‘Our [the ICTY’s] annual budget is well under 10% of Goldman Sach’s profit during the last quarter’ – and that capital should back international law because, she says, ‘I can offer you high dividends for a low investment.’ 111 Del Ponte is quite right to point out international law’s role in capital accumulation.112 Contrary, however, to her line that it is solely as a maintainer of ‘good governance’ and peace that international law performs this function, Haiti illustrates that international law can also do the job efficiently through the propagation of instability and the unleashing and legitimation of murderous violence.

4. Whither the Unspoken Consensus? Had there been many more Haitis, that is, multilateral imperial adventures committed under the watch of the supposedly ‘unilateralist’ neoconservatives, the strategy of liberal silence might have become unsustainable: even with all the explanations for the inattention I have attempted to outline, there is a limit to the number of such global events that can go unremarked before the situation becomes embarrassing. Even had John McCain won the Presidential race, however, this would have been unlikely to become an issue: within Republican circles the Bellingerite wing of ‘soft’, even tentatively multilateral, neoconservatism was on the rise, and McCain, his spurious ‘maverick’ credentials neurotically asserted by supporters to distance him from Bush, would likely have claimed to be breaking from (heavily mythologized) neoconservatism back to ‘traditional’, less multilaterally disinclined conservatism. The new president, of course, is in fact a Democrat, who has insisted that he ‘will have to prioritize restoring our traditions of adherence to international legal regimes and norms’.113 This deliberate projection of a radical break with the past is pronounced – though it is not a foregone conclusion that the perception will also be, as a growing sense of let-down among Obama supporters (what 111. Carla Del Ponte, ‘The Dividends of International Criminal Justice’, (visited 6 January 2009). 112. For historical examples of this tendency, from the earliest iterations of international law, see Miéville, Between, supra note 19, 153–260. 113. See , (visited 6 January 2009).

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Naomi Klein calls a ‘hopeover’),114 particularly with regard to his administration’s attitude to the law, attests.115 The strategy for the US is likely to continue to shift towards multilateral imperialism: in the words of one commentator, ‘what’s still going on in Iraq with the surge represents the past, but Haiti is the future’.116 This will be a rational corollary of the growing current sense among the US ruling establishment that, as the US National Intelligence Council put it in its recent report, ‘Global Trends 2025: A Transformed World’, ‘[a]lthough the United States is likely to remain the single most powerful actor, the United States’ relative strength – even in the military realm – will decline and US leverage will become more constrained’. For this reason, there will be ‘a growing demand for multilateral cooperation’.117 With the passing of the mutually parodic ‘unilateral’ and ‘multilateral’ discourses of the neoconservative era, the shameful non-attention of liberal international law to this key international legal imperial event, this terrorist legitimacy, might plausibly remain more or less unnoticed. As a matter of theoretical reportage this would be a cause for regret, but more importantly, it might delay a salutary examination of theoretical nostrums among scholars for whom the illegitimacy of imperialism is inextricable from its supposed ‘unilateralism’ and disdain for international law. Haiti should forcefully remind us that relatively uncontroversial ‘legality’ and multilateralism need stand in no opposition at all to strategies of murderous imperial control. If, indeed, that very legality helps mute criticism, as seems to have been the case here, one might go further, and suggest that multilateral UNsanctioned imperialism is more of a threat to justice and emancipation than its unilateralist Rumsfeldian sibling. The only thing more oppressive than a lawless world might be a lawful one.

114. Naomi Klein, ‘A Lexicon of Disappointment’, (visited 19 April 2009). 115. For an interesting comment from the right on the possible continuities between an Obama and a Bush administration in international law, see Eric Posner, ‘Obama and international law’, (visited 6 January 2009). See also Bruce Fein, ‘Barrack Obama’s czarlike wielding of executive power’, (visited 19 April 2009). For a liberal critique on such legal and international law issues, see Glenn Greenwald, ‘An emerging progressive consensus on Obama’s executive power and secrecy abuses’, (visited 19 April 2009). 116. Mike Davis, ‘Models of Coming U.S. Interventions: Iraq, or Haiti?’, (visited 6 January 2009). 117. Global Trends 2025: The National Intelligence Council’s 2025 Project, (visited 6 January 2009).

‘Scientific Whaling’: Whither Sanctions for Non-Compliance with International Law? Peter H. Sand* ABSTRACT: Over the past 21 years, Japanese whalers have taken more than 11,000 whales from the Antarctic Southern Ocean and the North Pacific Ocean for ‘scientific purposes’, under a controversial exemption clause of the 1946 International Convention for the Regulation of Whaling (ICRW). After analysing the relationship of the ICRW regime with other applicable multilateral agreements, this article concludes that Japan’s current pelagic ‘research whaling’ programmes not only are a growing embarrassment for the country’s meritorious ongoing research in both polar regions; they also are in open breach of the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). In light of different options for international legal action, the author recommends the initiation of ‘compliance procedures’ – potentially leading to a collective trade embargo – in accordance with CITES Conference Resolution of 14 March 2007. KEYWORDS: countermeasures, endangered species, international environmental law, non-compliance, sanctions, whaling

1. Background Simultaneously with the entry into force of the so-called ‘moratorium’ on commercial whaling,1 the Japanese Government in 1987/1988 began to issue, on a large scale, special whaling permits for ‘scientific purposes’ under Article VIII of *

Institute of International Law, University of Munich (Germany). The author was SecretaryGeneral of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) from 1978 to 1981, and in May 2007 participated in the preparation of a legal panel opinion on the compatibility of ‘scientific whaling’ with CITES, on behalf of the International Fund for Animal Welfare (IFAW). The findings of the panel are summarized in 17 Review of European Community and International Environmental Law (2008) 56-71; and in A. Fischer-Lescano et al. (eds), Frieden in Freiheit / Peace in Liberty / Paix en liberté : Festschrift für Michael Bothe (Nomos: Baden-Baden 2008) 681-710. While gratefully acknowledging the collaboration of co-panellists Kate Cook LL.M., Professor Philippe J. Sands and Ambassador

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the International Convention for the Regulation of Whaling (ICRW)2, in the context of a ‘Japanese Whale Research Program under Special Permit in the Antarctic’ (JARPA), and since 1994 in the context of a corresponding programme for the Northwest Pacific (JARPN), extended in 2002 as JARPN-II. The Antarctic programme was further extended in 2005 via a second phase (JARPA-II). These programmes operate under the exclusive jurisdiction of the Ministry of Agriculture, Forestry and Fisheries (without participation by the Ministry of Environment), and outside the scope of activities of Japan’s National Institute of Polar Research (under the Ministry of Education, Culture, Sports, Science and Technology). From 2009 on, catch quota from both programmes will yield up to 1,415 whales annually (as compared to 273 in 1988), most of them from the so-called ‘Southern Ocean Sanctuary’ of the International Whaling Commission.3 Over the past 21 years (1988-2009), the number of whales taken by Japanese ‘research whaling’ thus amounted to a total of 12,624, including 11,268 from the JARPA/ JARPN programmes.4 By comparison, during the 40 years before (1947-1987),

1.

2.

3.

4.

Alberto Székely, and scientific expert advice by Dr. Sidney J. Holt, the author assumes sole responsibility for views here expressed. Even though the ‘zero catch quota’ (suspension of commercial whaling) adopted on 24 July 1982 by a three-quarters majority decision of the International Whaling Commission (IWC) – as an amendment to the ICRW Schedule, paragraph 10(e), with effect from the 1986/87 whaling season – really is not a ‘moratorium’ according to IWC terminology, the term is now commonly used in the media. The text of the amendment can be found in J.G. Lammers et al. (eds), International Environmental Law: Documents (T.M.C. Asser Instituut: The Hague, 1997) at 179. International Convention for the Regulation of Whaling (Washington DC, 2 December 1946), 161 UNTS 72, and Schedule (as amended); texts in B. Rüster and B. Simma (eds), 7 International Protection of the Environment: Treaties and Related Documents (Oceana: Dobbs Ferry/NY 1976) 3498-3653. The Convention currently has 88 member States. See generally P. Birnie, ‘Whaling Regime’, in R. Bernhardt (ed.) 4 Encyclopedia of Public International Law (Elsevier: Amsterdam, 2000) 1469-1471. International Whaling Commission, Southern Ocean Sanctuary, ICRW Schedule paragraph 7(b) (amendment in force since 6 December 1994). Japan entered an objection/reservation against that amendment of the Schedule with regard to Southern (Antarctic) minke whales [Balaenoptera bonaerensis] taken in the area; see A. Gillespie, ‘The Southern Ocean Sanctuary and the Evolution of International Environmental Law’, 15 International Journal of Marine and Coastal Law (2000) 293-316; and A. Kanehara, ‘A New or Pathological Tendency in the International Regulation of Sovereign States: From the Perspective of the International Regulation of Whaling’, 47 Japanese Annual of International Law (2004) 34-68 at 59-60. Texts of JARPN-II and JARPA-II in Government of Japan, Research Plan for Cetacean Studies in the Western North Pacific Under Special Permit, IWC Scientific Committee Paper SC/54/O2 (2002); and Plan for the Second Phase of the Japanese Whale Research Program Under Special Permit in the Antarctic, IWC Scientific Committee Paper SC/57/O1 (2005). The remaining 1,356 specimens are mainly from ‘research whaling’ in Japanese coastal waters (see infra note 61). See International Whaling Commission (IWC), Special Permit Catches Since 1985 (IWC, last updated on 26 January 2010, available at (references to online sources are accurate as of 3 March 2010); for

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the total number of whales reported to have been taken ‘under Article VIII’ by all countries of the world together (including Japan) was about 2,100. The present study will analyse – after a brief historical overview – the tensions between formal-juridical interpretation of the 1946 Whaling Convention and other international legal instruments applicable to Japan’s pelagic whaling in the Antarctic and North Pacific oceans, in particular the impact of the 1973 Washington Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).

2. So-Called ‘Scientific Whaling’ in the Context of the ICRW The 1946 Whaling Convention had borrowed its exceptional rule on ‘whaling for scientific purposes’ from a precursor text: ICRW Article VIII was derived from Article 10 of the 1937 International Agreement for the Regulation of Whaling.5 The 1946 Convention actually goes back to a draft by Norwegian diplomat Birger Bergersen (1891-1977, first chairman of the International Whaling Commission, IWC), who had already participated in the drafting of the 1937 Agreement. Yet, according to the clear recollection of Prof. Lars Walløe (currently head of Norway’s delegation in the IWC Scientific Committee), in Bergersen’s mind ‘the number of whales a country could take for science was less than 10; he didn’t intend for hundreds [let alone thousands] to be killed for this purpose’.6 In 1956, Japan first issued a permit for scientific catch of two North Pacific right whales – a moderate quota, which however steadily increased from there on.7 When the IWC Scientific Committee in 1977 criticized a Japanese ‘research programme’ for a catch of 120 Bryde’s whales, the Japanese Government agreed to reduce the quota.8 Alas, that measure of diplomatic moderation came to an end by 1987, at the latest – after the entry into force of the IWC ‘moratorium’. Japan had initially entered a valid objection/reservation against the moratorium, but later withdrew it under massive US threats of unilateral fishery sanctions.9 It reportedly was a member of the US delegation who referred the Japanese to

5. 6. 7. 8. 9.

a detailed list by species, see infra text at notes 65-66. Like Japan, Iceland has also used the exception clause of ICRW Article VIII to grant special permits for ‘scientific whaling’, albeit with considerably lower catch quota (a total of 200 Northern minke whales from 2003 to 2007, though in parallel with commercial catches of minke and fin whales, some of which ended up as whale meat exports to Japan); see further infra note 68. International Agreement for the Regulation of Whaling (Geneva, 8 June 1937), 190 LNTS 80, with supplementary protocols (1938-1946); texts in Rüster and Simma supra note 2, 3475-3497. See V. Morell, ‘Killing Whales for Science?’, 316 Science (2007) 532-534 at 533. T. Kasuya, ‘Japanese Whaling and Other Ceatacean Fisheries’, 14 Environmental Science and Pollution Research (2007) 39-48 at 45. S. Lyster, International Wildlife Law (Grotius Publications: Cambridge, 1985) at 30. See infra notes 102-118.

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Article VIII as a way around the ban on commercial whaling, in order to avoid Japan’s exit from the IWC and the concomitant risk of an open GATT dispute over the sanctions threatened by the United States.10 Be that as it may, the Japanese Government changed its whaling scheme from 1987 onwards in the direction of an alleged immutable ‘right of research whaling’ under Article VIII, both for the Antarctic Southern Ocean and the Northwest Pacific.11 The granting of special permits under ICRW Article VIII is within the discretion of the competent national authorities; i.e., in Japan exclusively with the Ministry of Agriculture, Forestry and Fisheries, and its Fisheries Agency (without participation by the Ministry of Environment).12 Even though paragraph 30 of the ICRW Schedule provides for submission of all national special permits to the International Whaling Commission’s Scientific Committee and for the observance of ICRW Guidelines to this effect,13 there are no sanctions in case of noncompliance.14 The IWC Scientific Committee repeatedly noted – at virtually each 10. Dr. William Evans, cited by S. Misaki, ‘Stop Blubbering About Whales’, 259 Tokyo Journal (2007); see E. Lapointe, ‘United States Proposed Research Whaling to Japan’, IWMC World Conservation Trust: Sustainable E-News (2007) 5-6 at 5; and S.J. Holt, ‘Whaling: Will the Phoenix Rise Again?’, 54 Marine Pollution Bulletin (2007) 1081-1086 at 1082. 11. See Kasuya, supra note 7, at 46-48. See further S.J. Holt, ‘The Tortuous History of “Scientific” Japanese Whaling’, 53 BioScience (2003) 204-206; and A. Kanehara, ‘Japanese Practices Concerning the International Regulation of Whaling’, 46 Japanese Annual of International Law (2003) 127-148 at 147, referring to a statement by the Director of Pelagic Fishing, Ocean Fishing Section of the Fisheries Agency (M. Morimoto, currently head of ICR and IWC vicechairman) to the Environment Committee of the Japanese House of Representatives on 3 June 1994: ‘Research whaling is a right recognized under the ICRW, and thus irrespective of the IWC’s decision of setting up of the sanctuary Japan may exercise its right of research whaling in the Antarctic Ocean’. 12. After an intervention by Prime Minister Y. Nakasone in 1987, however (taking into account US reactions), the Fisheries Agency reduced its ‘scientific’ catch quota from 875 to 300; see infra note 112; A. Wong, The Roots of Japan’s International Environmental Politics (East Asia Publishers: New York, 2001) at 118; and J. Morikawa, Whaling in Japan: Power, Politics, and Diplomacy (Columbia University Press: New York, 2009) at 50-54. On current administrative permit practice, see infra notes 85-92. 13. G. Donovan, ‘Report of the Scientific Committee: Annex Y, Guidelines for the Review of Scientific Permit Proposals’, 3 Journal of Cetacean Resource Management (Suppl.) (2001) 371372. 14. For criticism, see G. Rose and G. Paleokrassis, ‘Compliance with International Environmental Obligations: A Case Study of the International Whaling Commission’, in J. Cameron et al. (eds.), Improving Compliance with International Environmental Law (Earthscan: London, 1996) 148-175 at 157 (‘clear loophole’); J.D. Lindemann, ‘The Dilemma of the International Whaling Commission: The Loophole Provisions of the Commission vs. the World Conscience’, 7 Detroit College of Law Journal of International Law and Practice (1998) 491-500; See P. Birnie, ‘Comment on the Compliance Control Mechanism within the Framework of the International Whaling Convention’, in U. Beyerlin et al. (eds), Ensuring Compliance with Multilateral Environmental Agreements (Nijhoff Brill: Leiden 2006) 175-200 at 182; and S. Altherr, Non-Compliance within the IWC (Pro-Wildlife: Munich, 2006) at 17.

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annual meeting since 1987 – that neither the research programmes submitted by Japan in support of its special permits nor the programme results subsequently submitted met the requirements of Article VIII and the Guidelines;15 whereupon the Japanese Government each time dismissed the criticism of the Committee as unfounded, and consistently ignored all IWC recommendations to stop the JARPA/JARPN programmes, treating them as non-binding and without ‘any restrictive effect on the right of research whaling’.16 International evaluations of this single-state interpretation of the treaty have been mostly negative. Not only the critical resolutions of the IWC (annually and almost ritually reiterated), but also numerous commentaries and opinions among the literature affirm that Japan’s current special permit practice is not compatible with the purpose and spirit of ICRW Article VIII.17 For its part, however, the 15. IWC-Resolutions 1987/App.4, 1989/App.3, 1990/App.2, 1991/App.2, 1992/App.5, 1993/ App.7, 1994-9/10, 1995-9, 1996-7, 1997-5/6, 1998-4, 1999-3, 2000-4/5, 2001-7/8, 2003-2, and 2005-1, as recorded in the IWC Annual Reports. The most recent resolution on ‘JARPA-II’ (2007-1, at the 59th IWC meeting in Anchorage/Alaska on 30 May 2007), referring to a total of 31 earlier recommendations and the critical conclusions of an expert meeting in December 2006 evaluating the results of JARPA-I, was adopted in the Commission by 40 votes against 2 (with one abstention), while Japan and 26 other member states refused to participate in the decision. See also P.J. Corkeron, ‘Reconsidering the Science of Scientific Whaling’, 375 Marine Ecology Progress Series (2009) 305-309. 16. Statement by T. Nogami, Director of the Fisheries Section, Economic Affairs Bureau of the Ministry of Foreign Affairs, to the Committee on Agriculture, Forestry and Fisheries, 109th Session of the Japanese House of Representatives (No.2, 29 July 1987), affirming that ‘[an IWC] recommendation has no binding effect, and does not have any restrictive effect on the right of research whaling’; see Kanehara, supra note 11, at 132. On the recommendatory effect of resolutions under ICRW Article VI, see W.T. Burke, The New International Law of Fisheries: UNCLOS 1982 and Beyond (Clarendon: Oxford 1994; Japanese transl. 1996) at 297; and G. Rose and S. Crane, ‘The Evolution of International Whaling Law’, in P. Sands (ed.), Greening International Law (New Press: New York, 1994) 159-181 at 173. 17. See P. van Heijnsbergen, International Legal Protection of Wild Fauna and Flora (IOS: Amsterdam 1997) at 206 (‘not in conformity with the requirements of the IWC on this point’); and A. Proelss, in W. Graf Vitzthum (ed.), Handbuch des Seerechts (Beck: Munich 2006) at 246 (‘incompatible with the sense and purpose of the IWC’); see also S.L. Ellis, ‘Japanese Whaling in the Antarctic: Science or Subterfuge?’, 31 Oceanus (1988) 68-69; G. Triggs, ‘Japanese Scientific Whaling: An Abuse of Right or Optimum Utilization?’, 5 Asia Pacific Journal of Environmental Law (2000) 33-59; H.S. Schiffman, ‘Scientific Research Whaling in International Law: Objectives and Objections’, 8 ILSA Journal of International and Comparative Law (2002) 473-485; P.J. Clapham et al., ‘Whaling as Science’, 53 BioScience (2003) 210-212; M.C. Maffei, ‘The International Convention for the Regulation of Whaling’, 12 International Journal of Marine and Coastal Law (1997) 287-305 at 299 (‘abuse of treaty aims’); M. Cogen, Handboek Internationaal Recht (2nd edn. Mys & Breesch: Gent, 1998) at 144 (‘Japan’s scientifically disguised commercial whaling’); F. Orrego Vicuña, The Changing International Law of High Seas Fisheries (Cambridge University Press, 1999) at 38 (Article VIII ‘badly abused’); J.F. Neuray, Droit de l’environnement (Bruylant: Brussels, 2001) at 490 (‘abuse of rights by Japan’); J. Beer-Gabel and V. Lastang, Les commissions de pêche et leur droit: la conservation et la gestion des resources marines vivantes (Bruylant: Brussels, 2003)

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Japanese Government insists on the formal legality of its permitting policy and the underlying textual interpretation of the Convention,18 relying in part on dissenting views in international legal publications.19 Rather than perpetuating what has turned into an interminable debate within the ICRW regime, the remarks which follow here are intended to explore legal alternatives available outside the politically grid-locked International Whaling Commission, with a view to closing at least part of this pathological (and obviously chronic) ‘governance gap’ jeopardizing the management of living marine resources in the Antarctic and North Pacific oceans.20

at 114 (Japanese ‘aberrations’); A. Proelss, Meeresschutz im Völker- und Europarecht (Duncker & Humblot: Berlin, 2004) at 185 (‘contrary to international law’); A. Kiss and J.P. Beurrier, Droit international de l’environnement (3rd edn. Pedone: Paris, 2004) at 331 (‘open door to abuses’); and L. Boisson de Chazournes et al., Report of the International Panel of Independent Legal Experts on Special Permit (‘Scientific’) Whaling Under International Law (International Fund for Animal Welfare: Paris, 2006) at paras 137-153. 18. See I. Miyaoka, Legitimacy in International Society: Japan’s Reaction to Global Wildlife Preservation (Palgrave Macmillan: New York 2004) 74-97; A. Ishii and A. Okubo, ‘An Alternative Explanation of Japan’s Whaling Diplomacy in the Post-Moratorium Era’, 10 Journal of International Wildlife Law and Policy (2007) 55-87 at 63 and 84 (‘Japan’s legalism’). Unlike other multilateral agreements, the Convention does not contain provisions for the settlement of disputes over interpretation; see R.B. Bilder, ‘The Settlement of Disputes in the Field of International Law of the Environment’, 144 Hague Academy of International Law: Collected Courses (1975-I) 141-239 at 214, who merely lists the Whaling Convention among ‘other problem areas’. See, however, infra note 60 on the prerogative of the Conference of the Parties for authentic treaty interpretation. 19. N. Yagi, ‘The Status of Scientific Research Whaling in International Law’, 8 ILSA Journal of International and Comparative Law (2002) 487-498; e.g., see E.V.C. Greenberg et al., ‘Japan’s Whale Research Program and International Law’, 32 California Western International Law Journal (2002) 151-209; W. Aron et al., ‘Scientists versus Whaling: Science, Advocacy, and Errors of Judgment’, 52 BioScience (2002) 1137-1140; cf. Burke, supra note 16, at 297: IWC ‘has no effective authority over this activity [whaling for scientific purposes]’. 20. D. Currie, ‘Whales, Sustainability and International Environmental Governance’, 16 RECIEL (2007) 45-57 at 52-53 (‘failure of IWC governance mechanisms’); see also B. van Drimmelen, ‘The International Mismanagement of Whaling’, 10 University of California at Los Angeles Pacific Basin Law Journal (1991) 240-259; and S.J. Holt, ‘Is the IWC Finished as an Instrument for the Conservation of Whales and the Regulation of Whaling?’, 46 Marine Pollution Bulletin (2003) 924-926. On recent attempts at resolving the deadlock, see C. Juma, ‘The Future of the International Whaling Commission: Strengthening Ocean Diplomacy’, Doc. IWC/60/12 (May 2008).

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3. The Interface of the ICRW and Other Multilateral Agreements Whales as natural resources protected by the international community21 have been the subject of a multitude of global and regional agreements besides the 1946 whaling regime, including: – the 1973 Washington Convention on Endangered Species (CITES);22 – the 1979 Bonn Convention on Migratory Species (CMS),23 with its regional agreements for Baltic/North Sea and Mediterranean/Black Sea whales (ASCOBANS 1991 and ACCOBAMS 1996);24 – the 1980 Canberra Convention on Antarctic Marine Living Resources (CCAMLR),25 and the 1991 Madrid Environmental Protocol (PEPAT) to the Antarctic Treaty;26 – the 1982 UN Convention on the Law of the Sea (UNCLOS);27 – the 1992 Biodiversity Convention (CBD);28 – and a range of regional nature conservation agreements and protocols that specifically list whales on their annexes.29 21. ‘Resources of common concern’: P. Birnie, ‘UNCED and Marine Mammals’, Marine Policy 17 (1993) 501-515; see also M.C. Maffei, La protezione internazionale delle specie animali minacciate (CEDAM: Padua 1992) at 362; and the famous formulation by US Secretary of State Dean Acheson at the opening session of the International Whaling Conference in Washington DC on 20 November 1946 (Doc. IWC/1/11, 1946, at 1), declaring that ‘whales… belong to no single nation nor to any group of nations but rather they are the wards of the entire world’. See C. Wold, ‘World Heritage Species: A New Legal Approach to Conservation’, 20 Georgetown International Environmental Law Review (2008) 337-396. 22. Convention on International Trade in Endangered Species of Wild Fauna and Flora (Washington/DC, 3 March 1973), 993 UNTS 243; currently 175 member States. 23. Convention on the Conservation of Migratory Species of Wild Animals (Bonn, 23 June 1979), 1651 UNTS 355; currently 112 member States. 24. Agreement on the Conservation of Small Cetaceans of the Baltic, North East Atlantic, Irish and North Seas (New York, 13 September 1991), 1772 UNTS 217; currently 10 member States; and Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area (Monaco, 24 November 1996), 2183 UNTS 321; currently 21 member States. 25. Convention on the Conservation of Antarctic Marine Living Resources (Canberra, 20 May 1980), 1329 UNTS 47; currently 29 member States. 26. Protocol to the Antarctic Treaty on Environmental Protection (Madrid, 4 October 1991), 30 ILM (1991) 1455; currently 34 member States. 27. United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982), 1833 UNTS 396; currently 159 member States. 28. Convention on Biological Diversity (Rio de Janeiro, 5 June 1992), 1760 UNTS 142; currently 192 member States. 29. Including the regional agreements for the Americas (Washington DC, 12 October 1940), 161 UNTS 193; Europe (Bern, 19 September 1979), 1284 UNTS 209; East Africa (Nairobi, 21 June 1985), OJEC (1986) C253; and the Caribbean (Kingston, 18 January 1990), 2180 UNTS 103; see C. de Klemm and C. Shine, International Environmental Law: Biological Di-

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The coexistence of these autonomous international environmental regimes has resulted in multiple overlaps and interlinkages;30 i.e., both synergies and conflicts,31 generally referred to as ‘interplay’ in political science terminology.32 There also are parallel or overriding inter-governmental commitments, such as those arising from agreed rules of interpretation in the event of treaty conflicts (lex posterior / lex specialis) under the 1969 Vienna Convention on the Law of Treaties,33 or from governmental declarations accepting the jurisdiction of the International Court of Justice for dispute resolution.34 In the case at hand, several of the multilateral regimes listed can be discarded simply because Japan is not part of them, and their restricted membership does not provide enough of a basis for customary norms erga omnes: such as the Bonn Convention on Migratory Species,35 and regional conservation agreements outside the Antarctic relating to whales.36 UNCLOS has some specific provisions on whales and other marine mammals – e.g., Articles 64 (‘highly migratory species’ in Annex I), 65, and 120 – obligating

30. 31. 32.

33. 34.

35.

36.

versity (UNITAR: Geneva, Course No. 6, 1998) at 107; and P.H. Sand, ‘Wildlife Protection’, in Bernhardt, supra note 2, 1471-1478 at 1473. See W.B. Chambers, Interlinkages and the Effectiveness of Multilateral Environmental Agreements (United Nations University Press: Tokyo, 2007). See R. Wolfrum and N. Matz, Conflicts in International Environmental Law (Springer: Berlin, 2003); and A. Fischer-Lescano and G. Teubner, Regime-Kollisionen (Suhrkamp: Frankfurt, 2006). See O.S. Stokke (ed.), Governing High Seas Fisheries: The Interplay of Global and Regional Regimes (Oxford University Press: Oxford 2001); O.R. Young, The Institutional Dimensions of Environmental Change: Fit, Interplay, and Scale (MIT Press: Cambridge/MA, 2002) 111138; S. Oberthür and T. Gehring, ‘Conceptual Foundations of Institutional Interaction’, in S. Oberthür and T. Gehring (eds), Institutional Interaction in Global Environmental Governance (MIT Press: Cambridge/MA, 2006) 19-51. For a critique of Articles 30-60 of the Convention, see Wolfrum and Matz, supra note 31, at 158. Such as the Japanese declaration of acceptance of 15 September 1958, in accordance with Article 36/2 of the ICJ Statute (Charter of the United Nations, 1945), which is stated in subsidiary form; i.e., ‘does not apply to disputes which the parties thereto have agreed or shall agree to refer for final and binding decision to arbitration or judicial settlement’. While that would exclude ICJ jurisdiction for UNCLOS, CBD, CITES or the Antarctic agreements, it does not rule out ICJ proceedings for interpretation of the Whaling Convention, which has no dispute settlement clause of its own; see supra note 18, and generally D.M. Konisky, ‘The United Nations Dispute Settlement System and International Environmental Law’, 9 Journal of Public and International Affairs (1998) 1-23. Japan was part of the ‘Pacific Alliance’ of coastal States (also including Canada, Russia, and the USA) which in 1979 were categorically opposed to the listing of marine species in the CMS appendices, and which have continued to boycott the Convention since; see Lyster, supra note 8, at 282, and S. Lyster. ‘The Convention on the Conservation of Migratory Species of Wild Animals (the ‘Bonn Convention’)’, 29 Natural Resources Journal (1989) 979-1000. Supra note 29. As to the rather limited suitability of the Antarctic agreements, see infra notes 43-44.

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all parties to cooperate in the conservation of those species, both on the high seas and within the exclusive economic zones (EEZs) of coastal States.37 Furthermore, marine scientific research according to Article 240 et seq. must comply with environmental regulations and ‘shall not constitute the legal basis for any claim to any part of the marine environment or its resources’ (Article 241). Non-compliance with these provisions (as well as the abuse of rights, according to UNCLOS Article 300) by individual States entitles other member States to initiate dispute settlement proceedings pursuant to Article 279 et seq.,38 and hence also opens the option of a request for provisional measures prima facie under Article 290. According to the 2000 Tuna Arbitration, however, that recourse may only be available subsidiarily (Article 281); i.e., where no other settlement procedure has been agreed between the parties to the dispute.39 CBD also contains provisions binding all member States to take measures for the conservation of biological resources, including under Article 3 to avoid environmental harm, and under Article 5 to cooperate for the conservation of biological diversity also in areas beyond the limits of national jurisdiction, as well as under Article 14 to assess the environmental impacts of projects posing significant risks for biodiversity. There is no doubt that massive killings of protected marine mammals in the Antarctic and the Northwest Pacific would fall under these provisions.40 In case of non-compliance by a CBD member, however, the only recourse for other parties would be conciliation proceedings (Article 27).41

37. See K.S. Davis, ‘International Management of Cetaceans Under the New Law of the Sea Convention’, 3 Boston University International Law Journal (1985) 477-518; and P. Birnie, ‘Marine Mammals: Exploiting the Ambiguities of Article 65 of the Convention on the Law of the Sea and Related Provisions: Practice under the International Regulation of Whaling’, in D. Freestone et al. (eds), The Law of the Sea: Progress and Prospects (Oxford University Press, 2006) 261-280. 38. As Japan has not accepted the jurisdiction of the International Tribunal for the Law of the Sea (ITLOS), the arbitration procedure of UNCLOS Annex VII would apply pursuant to Article 287(3). 39. Southern Bluefin Tuna Arbitration of 4 August 2000, 39 International Legal Materials 1359; see A. Boyle, ‘The Southern Bluefin Tuna Arbitration’, 50 International and Comparative Law Quarterly (2001) 447-452; see also E.V.C. Greenberg et al., supra note 19, at 196; T. Stephens, ‘The Limits of International Adjudication in International Environmental Law: Another Perspective on the Southern Bluefin Tuna Case’, 19 International Journal of Marine and Coastal Law (2004) 177-197; and C.P.R. Romano, ‘International Dispute Settlement’, in D. Bodansky et al. (eds), Oxford Handbook of International Environmental Law (Oxford University Press, 2007) 1036-1056 at 1047. 40. In this event, a member State also cannot invoke the ‘primacy’ of ICRW provisions, as CBD Article 22(1) does not apply in cases of ‘serious damage or threat to biological diversity’. 41. As Japan has not accepted any of the means of dispute settlement listed in Article 27(3), the conciliation procedure of Annex II/Part 2 would apply pursuant to Article 27(4).

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Within the framework of the Antarctic Treaty,42 there are relevant provisions in the Canberra Convention (CCAMLR), the scope of which (i.e., conservation of living marine resources) in accordance with Article I(2) encompasses all species of living organisms and the entire Antarctic marine ecosystem – inter alia, with regard to harvesting activities, maintenance of ecological relationships, and prevention of irreversible changes in the ecosystem (Article II) – and therefore would indeed seem to cover the JARPA programme. Yet, Article VI of the Convention expressly reserves (and hence would give priority to)43 treaty rights and obligations of member States under the International Whaling Convention. Moreover, considering that the dispute settlement clause of CCAMLR Article XXV is practically restricted to consensual proceedings (paragraph 2: ‘with the consent in each case of all parties to the dispute’), the Convention hardly qualifies as an instrument for whale conservation. The Madrid Protocol (PEPAT), as regards the taking of protected Antarctic species on Schedule II, similarly ‘does not affect the rights and obligations of Contracting Parties under the ICRW’ (II/7);44 hence the only remaining remedy there would be an environmental impact assessment of JARPA-II (pursuant to Article 8 and Annex I), presumably to be initiated through arbitration proceedings under Article 19 – not a very promising option, given the notorious political handicaps of contemporary Antarctic diplomacy. That leaves the CITES, in the interpretation and application of which Japan’s whaling and whale-product trading played a non-negligible role from the beginning.45 Most great whales (Cetacea) have been listed on CITES Appendix I since

42. Antarctic Treaty (Washington/DC, 1 December 1959), 402 UNTS 71; see M.C. Maffei, ‘The Protection of Whales in Antarctica’, in F. Francioni and T. Scovazzi (eds), International Law for Antarctica (Kluwer: The Hague, 1996) 171-224; P. Vigni, ‘The Interaction between the Antarctic Treaty System and the Other Relevant Conventions Applicable to the Antarctic Area’, 4 Max Planck Yearbook of United Nations Law (2000) 481-542; and N. Krueger, Anwendbarkeit von Umweltschutzverträgen in der Antarktis (Springer: Berlin, 2000). 43. Wolfrum and Matz, supra note 31, at 58 (‘priority to the ICRW’); see also Maffei, supra note 21, at 20; and Krueger, supra note 42, at 249. 44. See Krueger, ibid., at 243. 45. See A. Flachsmann, Völkerrechtlicher Schutz gefährdeter Tiere und Pflanzen vor übermässiger Ausbeutung durch den internationalen Handel: Das Washingtoner Artenschutzabkommen von 1973 (Schulthess: Zürich, 1977) at 112; R.U. Osterwoldt, International Law and Politics of Conservation – The Case of the Whales: The Endangered Species Convention (CITES), the International Whaling Commission (IWC), and Whale Conservation, M.Phil. thesis (Oxford University, 1982); P. Mofson, ‘Protecting Wildlife from Trade: Japan’s Involvement in the Convention on International Trade in Endangered Species’, 3 Journal of Environment and Development (1994) 91-107; K. Eldridge, ‘Whale for Sale? New Developments in the Convention on International Trade in Endangered Species of Wild Fauna and Flora’, 24 Georgia Journal of International and Comparative Law (1995) 549-565; and K. Cook et al., The Taking of Sei and Humpback Whales by Japan: Legal Issues Arising Under the Convention on International Trade in Endangered

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1973 as ‘threatened with extinction’ and excluded from international trade;46 since 1979, all whale and dolphin species have been subject to the Convention’s trade controls (Appendix II),47 which in accordance with CITES Article 15(2) (b) are regularly coordinated with the International Whaling Commission. That has led some authors to postulate a hierarchic superiority for the IWC vis-à-vis CITES.48 Closer analysis shows, however, that there is no evidence of any ‘primacy’49 of the whaling regime. CITES Article 15(2)(b) requires ‘consultation’ with the IWC – as one of the ‘inter-governmental bodies having a function in relation to [marine] species’ – prior to all amendments of the Convention’s appendices, which in practice is carried out through inter-secretariat cooperation and mutual accreditation (with observer status), and by way of corresponding conference resolutions.50 However, rather than ‘subordinating’ the 175 CITES member States to decisions by the 88 IWC member States, the consultation requirement merely illustrates the fact that the two autonomous global regimes supplement and ‘complement’ each other,51 – a variety of ‘interplay’ not untypical in modern international environmental law.52

46.

47. 48.

49. 50.

51.

52.

Species of Wild Fauna and Flora (CITES) (International Fund for Animal Welfare: London, 1 November 2007). In force since 1 July 1975. The currently applicable appendices of the Convention as amended (in force as from 1 July 2008) are published on the website of the CITES Secretariat, see CITES Notification to the Parties No. 2008/038 (13 June 2008); regarding Japan’s reservations, see infra notes 67-68. Amendment adopted by the Conference of the Parties at its 2nd meeting (San José/Costa Rica, 30 March 1979). Paradoxically, this view has been expressed both by proponents and by opponents of whaling, for different tactical reasons; see especially A. Gillespie, ‘Forum Shopping in International Environmental Law: The IWC, CITES, and the Management of Cetaceans’, 33 Ocean Development and International Law (2002) 17-56 at 31 and 39; and A. Gillespie, Whaling Diplomacy: Defining Issues in International Environmental Law (Edward Elgar: Cheltenham 2005) at 318 and 334. Gillespie, Whaling Diplomacy, ibid., and at 322 (‘IWC as a primary organization’). Compare IWC Resolution 1999-6 (‘Cooperation between the IWC and CITES’, 28 May 199), Appendix 7 to Annual Report of the International Whaling Commission (1999) at 54, reaffirmed by IWC Resolution 2007-4 (‘CITES’, 31 May 2007); and CITES Resolution 11.4 (‘Conservation of Cetaceans, Trade in Cetacean Specimens and the Relationship with the International Whaling Commission’, 20 April 2000, as revised 15 November 2002). In that sense (contra Gillespie, supra note 48), see also E. Franckx, ‘Legal and Institutional Implications of Listing Commercially Exploited Aquatic Species in the CITES Appendices’, FAO Fisheries Report No. 746 (Food and Agriculture Organization of the United Nations: Rome, 2004) paragraph 131. See supra notes 30 and 32, and generally M. Koskenniemi (ed.), Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission (Erik Castrén Institute: Helsinki, 2007) especially at 17 and 125.

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The most significant ‘conflict clause’ in this context is CITES Article 14(4),53 which exempts all IWC member States from CITES provisions (especially Article 4) concerning trade in whale products on Appendix II, provided that the specimens concerned were ‘taken’ and certified in conformity with the Whaling Convention.54 The exception is, however, restricted to Appendix-II species, hence it does not legalize international trade or the ‘introduction from the sea’ for any of the whale species on Appendix I, which thus continue to be strictly protected.55 Given that there is currently – apart from national reservations56 – only a single, geographically limited (Arctic) minke whale population remaining on Appendix II,57 this ‘exoneration’ of IWC States from certain CITES norms has lost much of its significance, even though it remains relevant for the North Atlantic region. In the case at hand, the net result is that simultaneous membership in the IWC regime exempts Japan from the rules for Appendix-II species (Article 4 of the CITES) but not from the country’s other obligations under CITES – nor from the rules of general international law, for that matter.58

53. On the significance of ‘conflict clauses’, see Wolfrum and Matz, supra note 31, at 122. 54. The Whaling Convention is not expressly mentioned in Art. 14(4) but is readily identifiable as one of the agreements ‘under the provisions of which protection is afforded to marine species included in Appendix II’. 55. The certification rule in paragraph 14(5) erroneously refers to Articles 3 and 5 of the Convention as well (which only deal with Appendices I and III); this editorial mistake was, however, formally communicated on 19 March 1976 to all contracting and signatory States – including Japan – by the Swiss Federal Department of Foreign Affairs (as depositary of the Convention according to Art. 20) through a ‘correction protocol’ (procès-verbal de rectification), noted by the Conference of the Parties at its first meeting in Resolution 1.5 (Recommendations concerning the Interpretation and Implementation of Certain Provisions of the Convention, adopted on 6 November 1976) para. 14(b), and referred to the Secretariat for submission to the next extraordinary meeting, as confirmed by Resolution 4.6 (30 April 1983, as revised 14 October 2004). See the Proceedings of the First Meeting of the Conference of the Parties (Bern 1976) at 38, 68, 143, 183 and 201; D.S. Favre, International Trade in Endangered Species: A Guide to CITES (Nijhoff: Dordrecht, 1989) at 306; J. Berney, ‘CITES and International Trade in Whale Products’, in G. Pétursdóttir (ed.), Whaling in the North Atlantic: Economic and Political Perspectives (University of Iceland Fisheries Research Institute: Reykjavik 1997) 99-111 at 104; and W. Wijnstekers, The Evolution of CITES, 8th edn. (CITES: Geneva 2005), electronic version 1.0 available at , annotation to Art. 14(5); but see Japanese practice to the contrary, infra note 88. 56. See infra notes 67-68. 57. Northern minke whales [Balaenoptera acutorostrata] off the coast of West Greenland; the current overall listing of whales on CITES Appendices I and II (supra note 46) was ‘noted with satisfaction’ by the IWC in Resolution 1999-6 (supra note 50). 58. On that point, see B. Simma and D. Pulkowski, ‘Of Planets and the Universe: Self-Contained Regimes in International Law’, 17 European Journal of International Law (2006) 483-529 at 485: ‘If the rules and procedures of special systems fail, a fallback on general international law, including resort to countermeasures, is justified’.

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4. Japan’s ‘Research Whaling’ as an Infraction of CITES Legal analysis of Japan’s so-called research whaling programmes, and of their compatibility with CITES – which Japan co-signed in 1973 and ratified in 198059 – must address four questions in particular: (1) Is this a case of ‘trade’ within the meaning of Article 1 of the CITES? (2) Which of the CITES appendices apply to the whale specimens taken? (3) Are the specimens used for ‘primarily commercial purposes’ according to Article 3? (4) Does the Japanese permitting and reporting system for these whale specimens meet the mandatory requirements for CITES implementation?

4.1. ‘Trade’ within the Meaning of CITES Article 1 International trade under Article 1(c) of the CITES includes, in addition to border-crossing imports and exports, ‘introduction from the sea’; i.e., transportation into a member State after ‘taking’ from ‘marine areas beyond the areas subject to the sovereignty or sovereign rights of a State consistent with international law, as reflected in the United Nations Convention on the Law of the Sea’. That is how the definition in Article 1(e) of the CITES has been specified by the Conference of the Parties at its 14th meeting at The Hague in 2007, exercising its prerogative of authentic treaty interpretation, by way of an agreed ‘common understanding of the provisions of the Convention’.60 59. See supra note 22, and generally the commentary by CITES Secretary General Wijnstekers, supra note 55; See P.H. Sand, ‘Commodity or Taboo? International Regulation of Trade in Endangered Species’, in H.O. Bergesen and G. Parmann (eds), Green Globe Yearbook of International Co-operation on Environment and Development (Oxford University Press, 1997) 19-36. On CITES implementation in Japan, see J.F. Feinerman and K. Fujikura, ‘Japan: Consensus-Based Compliance’, in E.B. Weiss and H.K. Jacobson (eds), Engaging Countries: Strengthening Compliance with International Environmental Accords (MIT Press: Cambridge/MA, 2000) 253-290 at 269-273. 60. Resolution 14.6 (‘Introduction from the Sea’, 15 June 2007). Clarification of various Convention terms (authentic interpretation) is among the routine functions of the Conference of the Parties, under a regular agenda item entitled ‘Interpretation and Implementation of the Convention’. Whenever the need for clarification of a term arises – i.e., when two or more parties disagree on its interpretation – the Conference convenes an expert group which in the course of one or more workshops prepares an agreed text proposal, which is then re-discussed in plenary and adopted by consensus or a two-thirds majority of the Conference. See the Rules of Procedure of the Conference, infra note 129, and generally J. Werksman, ‘The Conferences of Parties to Environmental Treaties’, in J. Werksman (ed.), Greening International Institutions (Earthscan: London 1996) 55 at 60; G. Ulfstein, ‘Treaty Bodies’, in D. Bodansky et al. (eds.), Oxford Handbook of International Environmental Law (Oxford University Press, 2007) 877-889 at 884; and A. Wiersema, ‘The New International Law-Makers? Conferences of the Parties to Multilateral Environmental Agreements’, 31 Michigan Journal of International Law

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The whale specimens introduced in the course of the pelagic ‘research whaling programmes’, JARPA (I/II) und JARPN (I/II), do not primarily originate from Japanese coastal waters,61 but from high sea areas outside national sovereignty in the Antarctic and Northwest Pacific oceans.62 The animals taken there are processed on the spot in factory ships; scientific samples are extracted (biopsy and stomach content samples, which together amount to less than 1% of biomass); commercially unusable parts are discarded (i.e., thrown over board as waste, amounting to about 40% of biomass); and the remaining parts destined for sale are separated, packaged, and carried to Japan on refrigeration transport vessels. Finding A: The introduction into Japanese territory of whale specimens taken in the course of the JARPA/JARPN ‘research whaling programmes’ in the Antarctic and North Pacific oceans is ‘trade’ as defined in Article 1(c) and (e) of the CITES.

4.2. Applicable CITES Appendices The taxonomic classification of the whale specimens taken under the JARPA/ JARPN programmes as species listed on the CITES appendices is clearly documented in the IWC reports and tables.63 Sampling of whale products from ‘re-

(2009) 231-287. By contrast – and contrary to the opinion of D. Goodman, ‘Japan’s Research Whaling Is Not Unlawful and Does Not Violate CITES Trade Rules’, 13 Journal of International Wildlife Law and Policy (2010, forthcoming issue No. 3), – the CITES Secretariat has no mandate or legal authority for treaty interpretation; see P. Ramage, ‘Commercial Whaling by Another Name? The Illegality of Japan’s Scientific Whaling: Response to Dan Goodman’, ibid. 61. There have been separate ‘research whaling’ programmes for coastal whaling since 1994, see supra note 4. On the organization and ‘cultural tradition’ of small-scale coastal whaling, see M.R. Freeman et al. (eds), Small-Type Coastal Whaling in Japan: Report of an International Workshop (University of Alberta: Edmonton 1988; Japanese transl. by J. Takahashi, Tokyo 1989); K. Hirata, ‘Why Japan Supports Whaling’, 8 Journal of International Wildlife Law and Policy (2005) 129-149 at 139; and H. Watanabe, Japan’s Whaling: The Politics of Culture in Historical Perspective (Trans Pacific Press: Melbourne 2009) at 156-170. The four licensed coastal whaling boats catch up to 120 minke whales per year. 62. Including the IWC Southern Ocean Sanctuary (partly not recognized by Japan), see supra note 3. 63. Supra note 4; e.g., see the expedition report by the Institute for Cetacean Research (ICR, n. 72 below) to the ICW Scientific Committee, Doc. SC/59/O5 (2007) – CITES Resolution 11.4 (supra note 50) recommends, in cooperation with IWC, that countries ‘inventory all frozen whale parts and derivatives possessed in commercial quantities’, and collect and inventory whale skin or meat samples for genetic (DNA) identification, in order to monitor illegal trade.

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search whaling’ on sale at Japanese fish markets has confirmed the fact that they belong to protected whale species.64 Of the total of 12,624 whales reported by Japan as having been taken from 1988 to 2009 ‘under special permit’, 11,481 were minke whales (Balaenoptera acutorostrata and B. bonaerensis; up to 1,000 annually since 2003), 396 were Bryde’s whales (B. edeni; one specimen in 1998, and about 50 annually since 2000), 692 were sei whales (B. borealis; one specimen in 2001, and up to 100 annually since 2002), 49 were sperm whales (Physeter macrocephalus; up to 10 annually since 2000), and 14 were fin whales (Balaenoptera physalus (since 2006).65 When granting special permits for the taking of up to 1,400 whales for ‘scientific purposes’ during the 2007/08 whaling season, Japan also included, for the first time, 50 humpback whales (Megaptera novaeangliae); after massive international protests, however, the Japanese Government declared on 21 December 2007 that it had temporarily suspended the taking of humpback whales, pending further negotiations in the IWC.66 All of these whale species are listed on Appendix I, and hence are subject to the rigid trade restrictions of Article 3 of the CITES. It is true that Japan has entered legally valid reservations against the listing of some of these species in accordance with Articles. 23(2) or 15(3) of the CITES. To that extent, therefore, the Japanese authorities are exonerated from Article 3, and with regard to such whale specimens and products they merely have to comply with the provisions regarding Appendix-II species.67 With regard to Northwest Pacific sei whales 64. M. Phipps et al., ‘A Preliminary Report on DNA Sequence Analysis of Whale Meat and Whale Meat Products Collected in Japan’, 17 TRAFFIC Bulletin (1998) 91-94; International Fund for Animal Welfare, Whale for Sale (IFAW: London, 1998); L. Grohmann et al., ‘Whale Meat from Protected Species is Still Sold on Japanese Markets’, 86 Naturwissenschaften (1999) 350351; and A. Ishihara and J. Yoshii, A Survey of the Commercial Trade in Whale Meat Products in Japan (TRAFFIC Japan: Tokyo, 2000) at 9. 65. In 2006, according to ICR, there were 3,436 tonnes of whale meat from JARPA II and 1,898 tonnes from JARPN in storage (see the ICR website, at and . Frozen whale meat can be stored for up to ten years (see infra note 77); it may therefore be assumed that a large portion of that meat is still in refrigerated storage, and – given its exclusively ‘scientific’ origins – is all taxonomically inventoried there; cf. supra note 63, and IWC Resolution 1997-2 (Improved Monitoring of Whale Products, 24 October 1997), which urges Contracting Parties to ‘provide information to the IWC about the size of remaining stockpiles and the species of origin remaining in the stockpiles’; 38 IWC Annual Report (1997: App. 3) 29. Japanese DNA inventories of frozen stockpiles have been criticized, however, as incomplete and unreliable; see S. Altherr et al., Der RMS: eine Frage des Vertrauens? Manipulationen und Fälschungen im Walfang (Pro Wildlife: Munich, 2005) at 10. 66. See IWC, supra notes 3 and 4; Kasuya, supra note 7, at 46, table 4; and the critical assessment by N.J. Gales et al., ‘A Case for Killing Humpback Whales?’, Nature Precedings Doc. 1313 (13 November 2007), available on-line . 67. See the authentic interpretation of Arts. 23 and 15(3) by the Conference of the Parties, in

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and all humpback whales, however – for which Japan has no valid reservations – Article 3 remains fully applicable.68 Finding B: The 692 sei whales taken from 2001 to 2009 in the context of Japanese ‘research whaling programmes’ in the North Pacific, as well as all humpback whales, are Appendix-I species subject to the trade ban of CITES Article 3. Furthermore, all other whales and whale products taken under these programmes are subject to the provisions for Appendix-II species.

4.3. ‘Primarily Commercial Purposes’ Within the Meaning of CITES Article 3 ‘Introduction from the sea’ of whale parts or whale products listed on Appendix I, according to Article 3(5) of the CITES, is permissible only under the dual condition that ‘the introduction will not be detrimental to the survival of the species involved’ (to be certified by the competent national ‘Scientific Authority‘; i.e., in this instance, the Japanese Fisheries Agency, ‘JFA’), and that the whale parts or products are ‘not to be used for primarily commercial purposes’ (to be certified by the competent CITES ‘Management Authority’, i.e., in this instance also the JFA).69 While the first of these conditions is a matter for purely scientific assessment, which for some whale species at least is controversial and likely to remain so,70 the second condition requires a finding of facts, with the burden of proof at any rate resting on the importer, in accordance with CITES

Resolution 4.25 (‘Effects of Reservations’, 30 April 1983, as revised 15 June 2007). 68. All currently applicable reservations (in effect from 13 September 2007) are listed in the Annex to CITES Notification to the Parties No. 2007/043 (4 December 2007). The CITES reservation clauses – modelled after ICRW Article V(3) – are used in practice today primarily by commercial or traditional whaling countries (Iceland, Japan, Norway, Palau, and St. Vincent and the Grenadines). Contrary to earlier apprehensions over potential misuse by other States, most commercially significant reservations on other Appendix-I species have since been withdrawn; see generally G.G. Steward, ‘Enforcement Problems in the Endangered Species Convention: Reservations Regarding the Reservations’, 14 Cornell International Law Journal (1981) 424-455; Sand, supra note 59, at 22; P.H. Sand, ‘Whither CITES? The Evolution of a Treaty Regime in the Borderland of Trade and Environment’, 8 European Journal of International Law (1997) 29-58 at 40-41; and H.S. Schiffman, Marine Conservation Agreements: The Law and Policy of Reservations and Vetoes (Nijhoff Brill: Leiden, 2008) at 86-98. 69. See infra notes 85-87. Conditions for import permits pursuant to Art. 3(3) are verbatim the same. 70. Especially the voluminous literature on years of debate in the IWC Scientific Committee, cf. supra notes 17 and 19; see also A. Gillespie, ‘Whaling Under a Scientific Auspice: The Ethics of Scientific Research Whaling Operations’, 3 Journal of International Wildlife Law and Policy (2000) 1-49, and infra note 92.

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Conference Resolution 5.10;71 i.e., in this instance the so-called ‘Institute for Cetacean Research’. All Japanese whaling has since 1987 been organized under the direction of the non-governmental Institute for Cetacean Research (‘ICR’, Nihon GeiruiKenkyūjo), which during each annual whaling season in the Antarctic and the North Pacific equips and finances whaling expeditions with catcher vessels, factory vessels and transport vessels – in collaboration with the Kyōdō Senpaku Kaisha Ltd. shipping agency (created in 1987 out of the former commercial whaling fleet of the Nihon Kyōdō Hogei Ltd., part of whose staff members were taken over by the ICR).72 These operations are carried out mainly by vessels under Japanese flag but also in part by chartered vessels under flags of convenience. According to the ICR annual reports, expenditures for ‘special permit whaling’ (i.e., under ICRW Article VIII) during fiscal year 2003 amounted to 5.34 billion yen (about US$50 million), as compared to expenditures totalling 582 million yen (about US$5.4 million) for scientific research projects in the Antarctic and in Japanese coastal waters; among the latter projects, the component reported as Japan’s contribution to Antarctic research under IWC auspices (431 million yen, i.e. about US$4 million, for the Southern Ocean Whales and Ecosystem Research programme, ‘SOWER’) is equivalent to approximately 6% of the annual costs of Antarctic research expeditions undertaken by Japan’s National Institute of Polar Research (NIPR).73 In turn, ICR earns more than 85% of its income from the sale of whale meat and whale oil from the Antarctic and North Pacific, via Kyōdō Senpaku Ltd.74 During fiscal year 2003, the Institute thus reported revenues from ‘sales of byproducts’ of 5.89 billion yen altogether (about US$55 million; i.e., roughly four times as much as at the beginning of ‘scientific whaling’ in 1988), plus another 943 million yen (about US$8.8 million) from government subsidies, mainly from the Fisheries Agency.75 As a result, so-called research whaling currently 71. CITES Resolution 5.10 (‘Definition of “Primarily Commercial Purposes”’, 3 May 1985), general principle 3, third sentence: ‘The burden of proof for showing that the intended use of specimens of Appendix-I species is clearly non-commercial shall rest with the person or entity seeking to import such specimens’. 72. See T. Kasuya, ‘Japanese Whaling’, in W.F. Perrin et al. (eds), Encyclopedia of Marine Mammals (Academic Press: San Diego 2000) 655-661; Hirata, supra note 6, at 139; Morikawa, supra note 12, at 37-44; and Miyaoka, supra note 15, at 82. See also infra note 119. 73. See Ishii and Okubo, supra note 18, at 73, table 1; and infra note 142. 74. On market allocation and price-setting by the ICR Sales Council, see A. Endo and M. Yamao, ‘Policies Governing the Distribution of By-Products from Scientific and Small-Scale Coastal Whaling in Japan’, 31 Marine Policy (2007) 169-181. 75. The ICR annual reports for the years from 1988 to 2003 (Tokyo, 2004) quoted by Ishii and Okubo, supra note 18, contain the most recent published budget figures of the Institute; cf. interview with T. Kasuya in the Mainichi Shimbun daily of 3 October 2005, at 3. Since 2001, the ICR has also received – from Japan’s Overseas Fishery Cooperation Foundation (chaired

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yields about 5,000 tonnes of whale meat annually,76 which can be stored deepfrozen for up to ten years,77 and for the country-wide marketing of which (inter alia, in the cafeterias of hospitals, schools, universities, and private companies) a new business firm named Geishoku Labo (‘whale meat nutrition laboratory’) was established in 2006 with active support from ICR and the Fisheries Agency, and with headquarters in the building of the Japanese Fisheries Association in Tokyo, directly adjoining the ICR.78 According to CITES Conference Resolution 5.10 (Definition of ‘primarily commercial purposes’), ‘it is agreed that all uses whose non-commercial aspects do not clearly predominate shall be considered to be primarily commercial in nature, with the result that the importation of specimens of Appendix-I species should not be permitted’. This authentic treaty interpretation introduces objective criteria limiting the discretion of all national Management Authorities.79 Under these terms, ICR should not under any circumstances – and quite regardless of any scientific assessment of the survival status of the species (‘non-detriment finding’) pursuant to Article 3(5)(a) of the CITES – have been granted special permits for sei whales from the Northwest Pacific in the context of the JARPNII programme since 2001;80 the same is true for the special permits concerning introduction from the sea of humpback whales in the context of the JARPA-II programme for the 2007/08 Antarctic whaling season (which have since been suspended), and for the permit soon to be issued for sei whales in the forthcoming (2010) North Pacific whaling season.

76. 77. 78. 79.

80.

by the former Director-General of the JFA) – interest-free public loans of up to 3.6 billion yen annually (about US$34 million), which it now has difficulty repaying; see K. Oyamada, ‘Japan’s Research Whaling Now Facing Problems at Home’, Asahi Shimbun (English edition) of 9 February 2008, at 3. According to ICR statistics (as published in the Japanese Journal for Fisheries Economics, Suisan Keizai Shimbun), that quantity about doubled within intervals of ten years (1987: 1,137 tonnes, 1997: 2,294 tonnes); see IFAW, supra note 64, at 8, table 1. The ICR reports that in 2006, a total of 5,334 tonnes from the JARPA und JARPN ‘research whaling programmes’ were stored in refrigeration facilities; i.e., about four times as much as in 1990; see supra note 65, and cf. Ishihara and Yoshii, supra note 64, table at 2. Initially registered for a period of five years; see notice in the Asahi Shimbun daily of 11 May 2006, at 11. On the earlier role of the ICR’s ‘By-Products Disposal Section’ in the promotion of whale products as food, see Morikawa, supra note 12, at 42-43. See Resolution 5.10, supra note 71, general principle 3, 2nd sentence. On authentic interpretation practice under CITES see supra note 60. In a comparable case, the European Court of Justice annulled a ‘discretionary’ permit issued by the French CITES Management Authority; see Case C-182/89 (Bolivian Furskin Case), Commission v France, [1990] ECR I-4337. On the IWC Scientific Committee’s massive criticism regarding the scientific rationale of the entire programme – especially in light of available non-lethal alternatives for part of the research objectives indicated – see Clapham et al., supra note 17, and Gales et al., supra note 66; cf. infra note 92.

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Finding C: The purposes for which 692 Northwest Pacific sei whales were taken by the ICR in the context of the JARPN-II programme from 2001 to 2009, as well as the purposes for which another 100 sei whales will be taken in 2010, were and are primarily commercial within the agreed meaning of Article 3(5)(c) of the CITES. Hence, the special permits so granted by the Japanese Fisheries Agency are contrary to international law, and should be revoked without delay. The parts and products of sei whales already introduced and stored in Japan should be considered as illegal imports, and should therefore be confiscated pursuant to Article 8(1)(b) of the CITES and the corresponding Japanese regulations for implementation.81

4.4. Mandatory Permitting and Reporting Requirements for CITES Implementation The permits illegally granted for sei and humpback whales also illustrate structural defects of CITES enforcement practice in Japan, which are incompatible with the Convention’s binding international standards, especially as regards the procedures for certification and reporting concerning marine species. Even though Japan’s implementing laws of 1987/199282 are currently ranked in category I – i.e., legislation believed generally to meet the requirements for CITES implementation83 – actual enforcement practice reveals serious deficiencies:84 81. CITES Art. 8(1)(b) obligates member States to take appropriate measures for the confiscation of specimens traded/introduced in violation of the Convention; see C. de Klemm, Guidelines for Legislation to Implement CITES, IUCN Environmental Policy and Law Paper No. 26 (IUCN: Gland 1993) at 62. On the identification of illegal whale meat stockpiles remaining in refrigerated storage in Japan, see supra note 65. 82. On the Endangered Species Act No. 58 of 2 June 1987, see H. Isozaki, ‘Japan’s New Law on Endangered Species’, 7 Boston University International Law Journal (1989) 211-221. To fill a number of regulatory gaps, the law was subsequently expanded by the ‘Act for the Conservation of Endangered Species of Wild Fauna and Flora’ of 5 June 1992 (in force 1 April 1993); see Y. Abe and T. Awaji (eds.), Kankyō-hō [Environmental Law] (2nd edn. Yuhikaku: Tokyo 1998) at 253-256; H. Isozaki, Kokusai Kankyō-hō [International Environmental Law] (Shinzansha: Tokyo 2000); and H. Kato, ‘Implementation of Multilateral Environmental Agreements in Japan Through Domestic Environmental Legislation’, 43 Japanese Annual of International Law (2000) 117-149. 83. As listed in CITES Doc. 24/CoP14 (‘National Laws for Implementation of the Convention’, 15 March 2007) Annex 2. This ranking is based on an analysis of Japanese legislation undertaken on behalf of the CITES Secretariat in December 1996, following uniform criteria in accordance with CITES Resolution 8.4 (‘National Laws for Implementation of the Convention’, 13 March 1992, as revised 15 June 2007). 84. See also Mofson, supra note 45, at 96; cf. E.J. McFadden, ‘Asian Compliance with CITES: Problems and Prospects’, 5 Boston University International Law Journal (1987) 311-325; K. Ishibashi, ‘The Effectiveness of Mechanisms for the Monitoring or Compliance Control of Multilateral Environmental Agreements: A Critical Analysis of CITES Implementation’ [in

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The ‘Management Authority’ competent to issue all certificates for ‘introduction from the sea’ according to Article 9(1)(a) of the CITES in Japan is the Resources and Environment Research Division of the Japan Fisheries Agency,85 which however simultaneously also serves as the ‘Scientific Authority’ competent to issue so-called ‘non-detriment findings’ for all endangered species of whales, seals, marine turtles, fish and crustaceans according to Article 3(5)(a).86 Such a dual function contravenes Resolution 10.3 of the Conference of the Parties, according to which the Scientific Authorities are to be ‘independent of Management Authorities’.87 The problem is exemplified by the 100 sei whales which in breach of international law were taken for ‘scientific purposes’ during the 2005 North Pacific whaling season (in the context of the JARPN-II programme) – even though they are listed on CITES Appendix I, without a valid Japanese reservation: The special permit in that case was issued on 10 May 2005, by way of a so-called ‘certificate of vessel research’, which according to its wording also was to serve as ‘certificate under Articles 3(5) and 4(6) of the CITES, as appropriate, when samples and the parts thereof obtained are subject to the provisions of these articles’,88 signed by the Director General of the JFA. The permit does not indicate whether he had obtained the requisite prior ‘non-detriment finding’ for endangered Northwest Pacific sei whales pursuant to Article 3(5)(a) of the CITES from the competent scientific authority.89 It can hardly be assumed, though, that the JFA’s Resources and Environment Research Division would have denied a permit to its own head of administration. It is precisely this conflict of interest which Principle

85.

86. 87. 88. 89.

Japanese] 15 Kagawa Hōgaku (1995) 53-128; and M. Taguchi, International Regimes and Cooperation: An Analysis of the Convention on International Trade in Endangered Species of Wild Fauna and Flora and Japan, M.A. thesis (University of Oregon: Portland OR, 1996). As communicated to the CITES Secretariat and, through it, to all Parties pursuant to Art. 9(2). The designated Japanese CITES ‘Management Authority’ for all other animals listed is the Trade and Economic Cooperation Bureau in the Ministry of Economy, Trade and Industry (MET); cf. Isozaki, supra note 82, at 131, tables 2-10. Scientific names: Cetacea, Pinnipedia, Sirenia, Cheloniidae, Dermochelyidae, Pices, Mollusca and Cnidaria. The Japanese ‘Scientific Authority’ for all other CITES-listed animals is the Wildlife Division in the Ministry of Environment. CITES Resolution 10.3 (‘Designation and Role of the Scientific Authorities’, 20 June 1997), recommending (a) that ‘all Parties designate Scientific Authorities independent from Management Authorities’; cf. infra note 128. The intention of this terminology obviously was to bring the permit under the exemption clause of CITES Art. 14(5), which however applies exclusively to Appendix-II species, hence not to Northwest Pacific sei whales; see supra notes 54-55 and 68. See Resolution 10.3, supra note 87, recommending (c) that ‘Management Authorities not issue any export or import permit, or certificate of introduction from the sea, for species listed in the appendices without first obtaining the appropriate Scientific Authority findings or advice’. The important function of the Scientific Authority in this regard has been described as a ‘right of veto’ by de Klemm, supra note 81, at 23.

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(a) of Resolution 10.3 was intended to avoid, and which the internal Japanese administrative system manifestly fails to address. Another serious infringement of CITES provisions concerns the obligation to submit compliance reports in accordance with Article 8(7)(a) of the Convention; these comprise annual reports to the CITES Secretariat in Geneva on the numbers and types of permits and certificates issued for all specimens on Appendices I, II and III – including those species for which a Contracting Party has entered reservations.90 For the reporting procedure (contents, format, deadlines), the Conference of the Parties has laid down uniform guidelines consolidated in Resolution 11.17.91 The duty to ensure compliance with these guidelines falls on the Management Authority designated; i.e., in Japan on the JFA for all marine species, and on the Environment Ministry for all other species. Comparative analysis of the CITES compliance reports submitted by the JFA with its corresponding reports to the International Whaling Commission shows that the data reported are essentially consistent. For the year 2000, the JFA thus reported to CITES the following specimens as having been ‘introduced for scientific purposes’: 439 Southern minke whales (to IWC: 439), 16 Northern minke whales (IWC: 40), 39 Bryde’s whales (IWC: 43), 3 sperm whales (IWC: 5), plus 19 ‘skin pieces’ [i.e., biopsy samples] of various whale species.92 Those comparative data are crucially important for the enforcement of the Endangered Species Convention – especially for tracking and combating illegal trade – and therefore are regularly processed and publicized, on behalf of the CITES Secretariat, by the World Conservation Monitoring Centre (UNEP-WCMC).93 In order to control international trade in whale products in particular, the Conference of the Parties by Resolution 11.4 of 20 April 2000 called for increased compliance monitoring 90. See Resolution 4.25, supra note 67. 91. Resolution 11.17 (‘National Reports’, 20 April 2000, as revised 14 October 2004); and CITES Notification to the Parties No. 2006/030 (‘Guidelines for the Preparation and Submission of CITES Annual Reports’, 2 May 2006). Cf. generally A. Kiss, ‘Reporting Obligations and Assessment of Reports’, in Beyerlin et al., supra note 14, 229-245; and infra note 127. 92. 0.216 kg in total; including Southern minke whales [Balaenoptera bonaerensis], blue whales [Balaenoptera musculus], humpback whales [Megaptera novaeangliae], Southern right whales [Eubalaena australis], sei whales [Balaenoptera borealis], killer whales [Orcinus orca], sperm whales [Physeter macrocephalus], and Bryde’s whales [Balaenoptera edeni]. Biopsy extraction for genetic identification is also possible without killing the specimens examined; see P.J. Palsbøll et al., ‘Genetic Tagging of Humpback Whales’, 388:6644 Nature (1997) 767-769; T.D. Smith et al., ‘An Ocean-Basin-Wide Mark-Recapture Study of the North Atlantic Humpback Whale (Megaptera novaeangliae)’, 15 Marine Mammal Science (1999) 1-32; and N.J. Gales et al., ‘Japan’s Whaling Plan Under Scrutiny’, 435:7044 Nature (2005) 883-884. 93. See J. Caldwell, ‘WCMC: The CITES Database’, 1:2 CITES/C&M International Magazine (1994) 76-78; and R. Reeve, Policing International Trade in Endangered Species: The CITES Treaty and Compliance (London: Earthscan, 2002) at 62. UNEP-WCMC, originally a joint NGO programme by IUCN and WWF, has since June 2000 become part of the United Nations Environment Programme (UNEP).

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measures in collaboration with the International Whaling Commission, and in this connection recommended not to issue any CITES certificates for primarily commercial ‘introduction from the sea’ of any specimens of whale species or stocks protected from commercial whaling by the IWC.94 One unexpected result of that resolution was that the JFA, from 2001 onwards, simply ceased to submit any further reports to CITES, without giving any reasons and in patent breach of the Convention. While the Japanese Environment Ministry continues to comply regularly with its reporting duties for other animal species,95 the CITES Secretariat has for over eight years running now not received any comparable JFA data for marine species (on all CITES appendices) imported, exported or introduced from the sea by Japan. Finding D: The hybrid administrative function or hierarchic subordination of the Japanese ‘scientific authority’ for marine species under the Japanese Fisheries Agency (‘JFA’), as the national ‘management authority’, patently contravenes the authentic interpretation of Article 9(1)(b) of the CITES by Resolution 10.3 of the Conference of the Parties. Furthermore, the continuous non-compliance of the JFA with its international reporting duties since 2001 constitutes a serious infraction of Article 8(7)(a) of the Convention.

5. Remedies and Procedures In case of breach of the Convention, there are essentially three options for redress: (1) arbitration pursuant to CITES Article 18; (2) unilateral sanctions as ‘stricter domestic measures’ pursuant to CITES Article 14; and (3) collective countermeasures pursuant to CITES Article 13, under the compliance procedures agreed by the Conference of the Parties in Resolution 14.3.

5.1. Arbitration Pursuant to Article 18 Article 18(2) of the CITES opens the traditional international legal option to initiate third-party arbitration proceedings for disputes over the interpretation or application of the Convention that cannot be resolved by negotiation, and 94. See Resolution 11.4 (supra note 50), 3rd recommendation; and CITES Notification to the Parties No. 2008/010 (‘Trade in Specimens of Species and Stocks of Whales Protected by the IWC’, 6 February 2008). 95. The most recent Japanese compliance report (for the year 2006 – though without JFA data) was received by the CITES Secretariat on 18 June 2008.

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specifically refers to the Permanent Court of Arbitration at The Hague, which has since adopted its own rules for this type of cases.96 There is no doubt that alleged infractions of CITES obligations by a party qualify as disputes over interpretation or application, and hence entitle other parties – being collectively ‘injured’ by the infractions97 – to request authoritative and binding arbitration proceedings under Article 18. Considering, however, that initiation of this procedure requires ‘mutual consent’ by the parties to the dispute – i.e., a prior compromis, with Japan’s concurrence – that approach will in most cases offer little chance of proceeding. It therefore is hardly surprising that Article 18 has never been used in the more than 30 years since entry into force of the Convention;98 incidentally, the same is true for similar traditional ‘paper clauses’ in most other multilateral environmental agreements.99

5.2. Unilateral Sanctions as ‘Stricter Domestic Measures’ Pursuant to Article 14 Artcile 14(1) of the CITES expressly authorizes member States to take ‘stricter domestic measures’ by way of trade restrictions and trade bans, hence including legitimate unilateral sanctions (retorsion) against other States.100 There are numerous illustrations of CITES practice to this effect, including the EU Member States’

96. Permanent Court of Arbitration (PCA), Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment (PCA: The Hague 2001). 97. See O. Schachter, ‘International Law in Theory and Practice’, 178 Hague Academy of International Law: Collected Courses (1982-V) 9-396, at 198; K. Sachariew, ‘State Responsibility for Multilateral Treaty Violations: Identifying the “Injured State” and Its Legal Status’, 35 Netherlands International Law Review (1988) 273-289 at 282; and C. Laly-Chevalier, La violation du traité (Bruylant: Brussels 2005) at 525. 98. See Wijnstekers, supra note 55, annotation to Article 18. 99. See A.C. Kiss, ‘Le règlement des différends dans les conventions multilatérales relatives à la protection de l’environnement’, in R.J. Dupuy (ed.), The Settlement of Disputes on the New Natural Resources (Nijhoff: Dordrecht 1983) 119-130; P.H. Sand, ‘New Approaches to Transnational Environmental Disputes’, 3 International Environmental Affairs (1991) 193-206; P.N. Bhagwati, ‘Environmental Disputes’, in P.H. Sand (ed.), The Effectiveness of International Environmental Agreements: A Survey of Existing Legal Instruments (Grotius Publications: Cambridge 1992) 436-452; and Romano, supra note 39 above, at 1040. 100. See generally L. Boisson de Chazournes, Les contre-mesures dans les relations internationales économiques (Pedone: Paris 1993); E. Klein, ‘Gegenmassnahmen’, in W. Fiedler et al. (eds), Gegenmassnahmen: Counter Measures (Mueller: Heidelberg 1998) at 44; K.J. Partsch, ‘Retorsion’, in Bernhardt, supra note 2, at 232-233; and cf. J. Crawford, ‘The Relationship Between Sanctions and Countermeasures’, in V. Gowlland-Debbas (ed.), United Nations Sanctions and International Law (Kluwer Law International: The Hague 2001) 57-68. For a caveat against excessive unilateral use of CITES Art. 14(1), see J. Hutton, ‘CITES: The Issue of Endangered Species’, in P. Koenz (ed.), Trade, Environment and Sustainable Development: Views from SubSaharan Africa and Latin America (International Centre for Trade and Sustainable Development: Geneva 2000) 143-146 at 145.

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strict ban on imports of all Appendix-II species from Indonesia in 1991-1995.101 A prominent example in this field have long been the unilateral trade sanctions of the United States: starting with the Lacey Act of 25 May 1900, which in 1935 was supplemented by an import ban for endangered wildlife species;102 and, in particular, the so-called ‘Pelly Amendment’ of 1971 to the 1954 Fishermen’s Protective Act;103 as well as the 1979 ‘Packwood-Magnuson Amendment’ to the 1976 Fishery Conservation and Management Act.104 Those laws empower the US President to sanction other States’ infringements of international environmental agreements such as ICRW or CITES, by way of countermeasures in the form of foreign-trade restrictions or denial of fishing rights in American coastal waters, upon prior ‘certification’ of such infringements through the US Secretary of Commerce.105 In actual US practice, unilateral sanctions have repeatedly been invoked for CITES infringements,106 including once in 1991 against Japan (for trade in en101. See L. Krämer, ‘Environmental Protection and Trade: The Contribution of the European Union’, in R. Wolfrum (ed.), Enforcing Environmental Standards: Economic Mechanisms as Viable Means? (Springer: Berlin 1996) 413-450 at 437; and Reeve, supra note 93, at 126. Species-specific ‘stricter’ EU measures already prohibit the importation of all whale products anyway, following Council Regulation 348/81/EEC of 20 January 1981 on Common Rules for Imports of Whales or Other Cetacean Products, [1981] OJ L39/1, as implemented by Commission Regulation 3786/81 of 22 December 1981, [1981] OJ L377/42; see P. Sands, Principles of International Environmental Law (2nd edn. Cambridge University Press: Cambridge 2003) at 779. 102. Lacey Act of 25 May 1900, as amended by the Act of 15 June 1935 (49 Stat. 378), 16 U.S. Code §3371; see R.S. Anderson, ‘The Lacey Act: America’s Premier Weapon in the Fight Against Unlawful Wildlife Trafficking’, 16 Public Land Law Review (1995) 27-85. 103. Fishermen’s Protective Act of 27 August 1954, as amended by the Act of 23 December 1971 (85 Stat. 786), 22 U.S. Code para. 1971; see S. Charnovitz, ‘Encouraging Environmental Cooperation through the Pelly Amendment’, 3 Journal of Environment and Development (1994) 3-28. 104. Fishery Conservation and Management Act of 13 April 1976, as amended by the Act of 15 August 1979 (93 Stat. 407), 16 U.S. Code para. 1801; see G.S. Martin and J.W. Brennan, ‘Enforcing the International Convention for the Regulation of Whaling: The Pelly and Packwood-Magnuson Amendments’, 17 Denver Journal of International Law and Policy (1989) 293-315. 105. See E. Zoller, Enforcing International Law Through U.S. Legislation (Transnational Publishers: Dobbs Ferry/NY 1985) at 84; D. Caron, ‘International Sanctions, Ocean Management, and the Law of the Sea: A Study of Denial of Access to Fisheries’, 16 Ecology Law Quarterly (1989) 311-354; V.N. Spencer, ‘Domestic Enforcement of International Law: The International Convention for the Regulation of Whaling’, 2 Colorado Journal of International Environmental Law and Policy (1991) 109-127; A.F. Upton, ‘The Big Green Stick: Reducing International Environmental Degradation through U.S. Trade Sanctions’, 22 Boston College Environmental Affairs Law Review (1995) 671-692; E.R. De Sombre, Domestic Sources of International Environmental Policy: Industry, Environmentalists and U.S. Power (MIT Press: Cambridge/ MA 2000) 51-80; and L. Boisson de Chazournes, ‘The Use of Unilateral Trade Measures to Protect the Environment’, in A. Kiss et al. (eds), Economic Globalization and Compliance with International Law (Kluwer: The Hague 2003), 181-191. 106. Inter alia, an import ban under the Lacey Act against Singapore in 1986, see Reeve (supra note 93) at 129; and certification under the Pelly Amendment against Taiwan in 1994, see

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dangered marine turtles).107 ‘Certifications’ for infringements of the 1946 Whaling Convention were issued in at least six cases: in 1974 for the first time against Japan and the Soviet Union;108 in 1978 against Chile, South Korea, und Peru;109 in 1979/1980 against Spain and South Korea;110 in 1981 against Taiwan;111 and against Japan again in 1988, 1995, and 2000.112 In most of those cases, certification by the Secretary of Commerce was sufficient as a diplomatic warning of impending sanctions to achieve compliance;113 only two of the proceedings against Japan reached the stage of partial fishery bans in the US exclusive economic zone (EEZ).114 Even so, the effectiveness of unilateral US sanctions, or the mere threat ‘Proposed Import Prohibitions on Wildlife Specimens and Products Pursuant to the Pelly Amendment’, 59 U.S. Federal Register (28 April 1994); and S. Patel, ‘The Convention on International Trade in Endangered Species: Enforcement and the Last Unicorn’, 18 Houston Journal of International Law (1995) 157-213 at 197. 107. Certification issued under the Pelly Amendment in March 1991, for persistent imports or introductions from the sea (even though Japan had entered a valid reservation under CITES Art. 23). As a result, the Japanese Government withdrew its reservation and prohibited the importation of Appendix-I olive ridley turtles [Lepidochelys olivacea] in April 1991, and in 1994 withdrew its remaining reservation on hawksbill turtles [Eretmochelys imbricata]; see C.D. Stone, The Gnat is Older than Man: Global Environment and Human Agenda (Princeton University Press: Princeton 1993) at 45; S. Murase, ‘National Report: Japan’, 5 Yearbook of International Environmental Law (1994) 425-429 at 426; M. Dupree, ‘Passing Through Enemy Waters: Marine Turtles in Japan’, 14 University of California at Los Angeles Pacific Basin Law Journal (1995) 75-102; and Reeve, supra note 93, at 102. 108. A list of all certifications until 1988 can be found in Martin and Brennan, supra note 104; cf. S.C. Whitney and S.R. Perles, ‘Critical Issues Left Unresolved in Japan Whaling Association v. American Cetacean Society’, 28 Virginia Journal of International Law (1988) 679-707 at 684, fn. 34. 109. They were not IWC members at the time (certification for ‘whaling without ICRW quota’). 110. For objections/reservations against IWC decisions; both objections were withdrawn after US certification. 111. After Taiwan enacted a ban on whaling, the US certification was withdrawn. 112. See D. Caron, supra note 105, at 325. After the Japanese Government had initially reduced its ‘scientific’ catch quota from 825 to 300 minke whales in 1987 (see supra note 12), the US Secretary of Commerce issued a further certification on 21 January 1988, followed by a withdrawal of fishing rights in US waters by President Reagan on 6 April 1988; see C.L. Johnson, ‘Environmental Law: Certification of Japanese Violations of International Whaling Agreement’, 29 Harvard International Law Journal (1988) 541-546. Nevertheless, Japan took 273 minke whales in 1988 on the basis of ICRW Article VIII; see also K. Sumi, ‘The ‘Whale War’ Between Japan and the United States: Problems and Prospects’, 17 Denver Journal of International Law and Policy (1989) 317-372. 113. See S. Andresen, ‘The International Whaling Regime: Order at the Turn of the Century?’, in D. Vidas and W. Østreng (eds), Order for the Oceans at the Turn of the Century (Kluwer Law International: The Hague, 1999) 215-228 at 224. 114. See supra note 112. On the sanctions threatened but suspended after negotiations in 1995 and 2000, see Letter from President Clinton to Congress, 3 Journal of International Wildlife Law and Policy (2000) 311-314; S.D. Murphy, ‘Contemporary Practice of the United States Relating to International Law’, 95 American Journal of International Law (2001) 151-152; and R.B. Ackerman, ‘Japanese Whaling in the Pacific Ocean: Defiance of International Whal-

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of sanctions [in Japanese, gaiatsu, which translates as ‘foreign pressure’],115 has suffered considerable erosion over the years,116 in part because Japan is no longer critically dependent on fishing rights in the American coastal zone, and can in turn threaten countermeasures by way of restrictions on US imports. Moreover, the compatibility of such national sanctions with GATT/WTO non-discrimination rules is controversial at least since the 1991 Tuna-Dolphin case.117 Yet, the main problem with unilateral sanctions for multilateral environmental law is the fact that those sanctions primarily serve the self-interest and power politics of nation States. To wit, the United States Supreme Court decided in 1987 that the invocation of trade sanctions lies within the exclusive foreign policy discretion of the US Government, and therefore cannot be mandated on the basis of community concerns (Japan Whaling Association v. American Cetacean Society).118 That would condition the enforcement of international environmental law on an

ing Norms in the Name of “Scientific Research”, Culture, and Tradition’, 25 Boston College International and Comparative Law Review (2002) 323-341, at 335. 115. Ishii and Okubo, supra note 18, at 55. 116. See D. Caron, supra note 105, at 346 (‘not particularly effective’); see also D.M. Wilkinson, ‘The Use of Domestic Measures to Enforce International Whaling Agreements: A Critical Perspective’, 17 Denver Journal of International Law and Policy (1989) 271-291; E.A. Gardner, ‘Swimming Through a Sea of Sovereign States: A Look at the Whales’ Dilemma’, 12 Ocean Yearbook (1996) 61, at 72; and D.A. Wirth and D.J. Caldwell, ‘Unilateral Trade-Based Measures for Protection of the Marine Environment: A Legal and Policy Perspective’, in D.G. Dallmeyer (ed.), Values at Sea: Ethics for the Marine Environment (University of Georgia Press: Athens/ GA 2003) 147-182. 117. GATT Panel decision (Mexico v. USA) of 16 August 1991, 30 ILM (1991) 1594; see S. Charnovitz, ‘Environmental Trade Sanctions and the GATT: An Analysis of the Pelly Amendment on Foreign Environmental Practices’, 9 American University Journal of International Law and Policy (1994) 751-807; T.L. McDorman, ‘Iceland, Whaling and the U.S. Pelly Amendment: The International Trade Law Context’, 66 Nordic Journal of International Law (1997) 453474; Andresen, supra note 113, at 225; and Ackerman, supra note 114, at 331. Cf. supra note 10. 118. Japan Whaling Association v. American Cetacean Society, 478 U.S. 221, 106 S. Ct. 2860 (30 June 1986). See V.A. Curry, ‘The Great Whales Become Casualties of the Trade Wars’, 4 Pace Environmental Law Review (1986) 277-298; B.R. Adel, ‘Japan Whaling Association v. American Cetacean Society’, 6 Wisconsin International Law Journal (1987) 129-153; C.S. Gibson, ‘Narrow Grounds for a Complex Decision: The Supreme Court’s Review of an Agency’s Statutory Construction in Japan Whaling Association v. American Cetacean Society’, 14 Ecology Law Quarterly (1987) 485-516; D.A. Wirth, ‘A Matchmaker’s Challenge: Marrying International Law and American Environmental Law’, 32 Virginia Journal of International Law (1992) 377-420 at 393-395; and J.K. Setear, ‘Can Legalization Last? Whaling and the Durability of National (Executive) Discretion’, 44 Virginia Journal of International Law (2004) 711-757 at 753 (‘national executive authority was triumphant’). See also S.V. Scott, ‘Intergovernmental Organizations as Disseminators, Legitimators, and Disguisers of Hegemonic Policy Preferences: The United States, the International Whaling Commission, and the Introduction of a Moratorium on Commercial Whaling”, 21 Leiden Journal of International Law (2008) 581600 at 598.

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assessment as to whether or not it is politically opportune for individual States119 – hardly a robust basis for the conservation of common natural resources.

5.3. Collective Countermeasures Pursuant to Article 13 and the CITES Compliance Procedures (Conference Resolution 14.3) In the meantime, the CITES Conference of the Parties has developed a procedure of its own for collective countermeasures against infractions of the Convention, consolidated and codified – on the basis of Article 13 (‘International Measures’) – in Resolution 14.3 of 2007 (‘CITES Compliance Procedures’).120 Accordingly, the CITES Standing Committee may as a last resort recommend, in the event of continuous non-compliance (‘where a Party’s compliance matter is unresolved and persistent and the Party is showing no intention to achieve compliance’), an embargo (‘trade suspension’)121 against the targeted/delinquent State – not only with regard to trade in the specific species concerned,122 but eventually also 119. In 2005, the Federal Court of Australia in first instance also dismissed an NGO action against JARPA-II whaling inside the Antarctic EEZ claimed by Australia – though not recognized by Japan – on the grounds that the foreign policy questions involved were ‘non-justiciable’, and that the injunction requested against the Japanese whaling ship ‘may be contrary to Australia’s long term national interests, including its interests connected with its claim to territorial sovereignty to the Antarctic’; see Humane Society International Inc. vs. Kyōdō Senpaku Kaisha Ltd, Federal Court of Australia (Allsop J., 27 May 2005), [2005] F.C.A. Decisions 664, at paragraph 27, case summary in 25 Australian Yearbook of International Law (2006) 401-402. However, the finding on the asserted lack of jurisdiction was reversed on appeal, and on 15 January 2008, Judge Allsop issued a court order to restrain Kyōdō Senpaku from whaling in the Australian Whale Sanctuary; [2008] F.C.A. Decisions 3. See generally D.K. Anton, ‘False Sanctuary: The Australian Antarctic Whale Sanctuary and Long-Term Stability in Antarctica’, 8 Sustainable Development Law and Policy 61-63 (2008); and N. Klein, ‘Whales and Tuna: The Past and Future of Litigation Between Australia and Japan’, 21 Georgetown International Environmental Law Review 143-217 (2009). 120. Resolution 14.3 (‘CITES Compliance Procedures’, 15 June 2007), Annex: ‘Guide to CITES Compliance Procedures’; 46 ILM (2007) 1178-1182. As explained in the introduction, this most recent codification merely is a (non-binding) description of existing Convention practice. The authentic legal basis thus remains CITES Art. 13, and the relevant earlier CITES Conference Resolutions and Decisions listed in footnote 1 of Resolution 14.3: i.e., Resolutions 11.1 (Establishment of Committees, 20 April 2000, revised 15 June 2007), 11.3 (Compliance and Enforcement, 20 April 2000, revised 15 June 2007), 11.17 (National Reports, 20 April 2000, revised 15 June 2007), 12.8 (Review of Significant Trade in Specimens of Appendix-II Species, 15 November 2002, revised 14 October 2004), and Decision 14.29 (Cooperation Between Parties and Promotion of Multilateral Measures, 15 June 2007). See also S. Biniaz, ‘Remarks about the CITES Compliance Regime’, in Beyerlin et al., supra note 14, 89-96 at 94; and C. Payne, ‘Introductory Note’, 46 ILM (2007) 1174-1177. 121. For general definitions, see H.G. Kausch, ‘Embargo’, in R. Bernhardt (ed.), 2 Encyclopedia of Public International Law (Elsevier: Amsterdam 1992) 38-62; and H.K. Ress, Das Handelsembargo: Völker-, europa- und aussenwirtschaftsrechtliche Rahmenbedingungen, Praxis und Entschädigung (Springer: Berlin, 2000) at 7. 122. On ‘species-specific sanctions’ that are alternatively available, see Reeve, supra note 93, at

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for the entire trade with that State in all species listed on CITES Appendices I, II and III (i.e., more than 30,000 animal and plant species, and their parts or products).123 A prerequisite for initiating such ‘collective retorsion proceedings’124 – which were actually applied in at least 40 cases since 1985, and hence have been part of continuing treaty practice for more than 20 years now125 – is a formal finding of treaty infraction by the CITES Standing Committee. Among the relevant treaty obligations (infraction of which may ‘trigger’ the procedure) singled out in Resolution 14.3 is the duty not to allow trade in strictly protected species, in accordance with Article 3 et seq.;126 the duty to submit regular compliance reports in accordance with Article 8;127 and the duty to designate national Management and Scientific Authorities in accordance with Article 9.128 Resolution 14.3 lays down the entire compliance procedure – inter alia, consultation with the targeted/ delinquent State (‘affected party’); observance of an adequate timetable for compliance action; and eventual withdrawal of the embargo by the Standing Committee (after remediation, and return to compliance) – as well as the distribution of functions for this purpose between different convention bodies in accordance with Article 13 of the CITES. Recommendations on compliance matters require

159-205; for example, the EU import ban on whale products, mentioned supra note 101. 123. Resolution 14.3, supra note 120, paragraph 30. On the demonstrated effectiveness of these collective measures as an economic pressure tool, see R. Reeve, ‘Wildlife Trade, Sanctions and Compliance: Lessons from the CITES Regime’, 82 International Affairs (2006) 881-897; and further infra note 131. 124. U. Beyerlin and T. Marauhn, Rechtsetzung und Rechtsdurchsetzung im Umweltvölkerrecht nach der Rio-Konferenz 1992 (Erich Schmidt Verlag: Berlin, 1997) at 79 and 87; and P.H. Sand, ‘Endangered Species: International Protection’, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (Oxford University Press, online edn. February 2009 ). 125. See Sand, supra note 68, at 38-39; and P.H. Sand, ‘Sanctions in Case of Non-Compliance and State Responsibility: pacta sunt servanda – Or Else?’, in Beyerlin et al., supra note 14, 259-272. The countries currently subject to recommendations for suspension of all commercial CITES trade include Djibouti, Gabon, Mauritania, Nigeria, Rwanda and Somalia; CITES website . 126. For example, CITES embargoes for infraction of this treaty obligation were enforced in 1985-87 against Bolivia, in 1985-90 against the United Arab Emirates, in 1991-92 against Thailand, in 1992-95 against Italy, in 1998-99 against Greece, in 2001-02 against the Democratic Republic of Congo, and in 2005-07 against Nigeria. See Reeve, supra note 123, at 890, table 1. 127. CITES embargoes for infraction of this treaty obligation over three consecutive years (Resolution 11.17 on National Reports, supra note 91) were enforced in 2004-05 against Algeria, in 2004-07 against the Central African Republic, in 2002-03 against Djibouti, Dominica, Liberia, Somalia, and since 2003 against Mauretania. See Reeve, supra note 123, at 891. 128. In 1999-2002, CITES embargoes for infraction of this treaty obligation were enforced against Afghanistan and Ruanda. See Reeve, supra note 93, at 153.

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consensus or a simple-majority vote in the 33-members Standing Committee, or a two-thirds majority in the Conference of the Parties.129 CITES embargoes are primarily enforced via Article 14(1); i.e., implemented by way of national restrictions on foreign trade, as ‘stricter domestic measures’ concerted/harmonized on the basis of recommendations by the Conference of the Parties or the Standing Committee. In terms of administrative practice, that means collective non-recognition of all CITES permits and certificates issued by the targeted State, and hence the termination of legal trade with that State in wildlife species/products. Given the substantial economic losses involved,130 the use or mere threat of trade suspensions has proven a remarkably effective instrument for expeditious redress of infractions.131 The basic conformity of the CITES embargo procedure with the rules of general international law may be demonstrated by comparison with the criteria for legitimate ‘countermeasures’ in the UN International Law Commission’s ‘Draft Articles on State Responsibility’:132 The catalogue of requirements to legitimize countermeasures, available to all member States of a treaty in the event of infringement of collective treaty obligations (ILC Articles 48-54), largely corresponds to the procedural and substantive rules laid down in CITES Resolution 14.3 (2007).133 Another question frequently raised in the literature concerns the

129. Rules of Procedure of the Standing Committee, July 2009, available at the CITES website , rule 25; Rules of Procedure of the Conference of the Parties, as amended in 2007, available at , rule 26. Paragraph I(3) of Resolution 14.3, supra note 120, also expressly confirms the priority of any traditional dispute settlement proceedings under CITES Art. 18(2), as discussed in section IV/1, supra notes 96-98. 130. The total value of world trade in wildlife species (animals and plants) and their products (including timber and fisheries) has been estimated at nearly 332.5 billion US dollars in 2005; see M. Engler, ‘The Value of International Wildlife Trade’, 22 TRAFFIC Bulletin (2008) 4-5. 131. ‘An almost 100 percent success rate’ as compared to other environmental agreements, according to D. Brack, ‘Environmental Treaties and Trade: Multilateral Environmental Agreements and the Multilateral Trading System’, in G.P. Sampson and W.B. Chambers (eds.), Trade, Environment and the Millennium, 2nd edn. (United Nations University Press: Tokyo 2002) 321-352, at 334. See also R. Reeve, ‘Enhancing the International Regime for Protecting Endangered Species: The Example of CITES’, 63 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht / Heidelberg Journal of International Law (2003) 333-353, at 351; and S. Oberthür, ‘Wirksamkeit von Verrechtlichung: Die Compliance-Mechanismen internationaler Umweltregime’, in K. Jacob et al. (eds), Politik und Umwelt (Wiesbaden: Verlag für Sozialwissenschaften, 2007) 73-93 at 80-82. 132. See J. Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge University Press: Cambridge 2002). See also D.J. Bederman, ‘Counterintuiting Countermeasures’, 96 American Journal of International Law (2002) 817-823; and Laly-Chevalier, supra note 97 above, at 550-589. 133. See Sand, supra note 125, and in D. Zaelke et al. (eds), 1 Making Law Work: Environmental Compliance and Sustainable Development (Cameron May: London 2005) 269-271.

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compatibility of CITES trade sanctions with GATT/WTO free-trade rules;134 in view of the fact, however, that almost all WTO Member States are now also parties to CITES, the hypothesis of a regulatory conflict here is virtually academic, and has never arisen in practice.135 Considering that the CITES provisions infringed by Japan are collective treaty obligations owed to all members of the Convention (erga omnes partes),136 any other member State is entitled to request the initiation of compliance procedures. That obviates the question raised by the Japanese delegation during the preparatory negotiation of Resolution 14.3 as to a ‘directly affected’ (i.e., injured) party;137 at the very least, all those States who concurrently are also members of other multilateral agreements relating to whale conservation138 would have to be considered as affected/injured – and therefore may even be under a duty now, on the basis of their external international legal obligations, to request CITES compliance procedures for the protection of sei and humpback whales.139

134. E.g., see J. Cameron and J. Robinson, ‘The Use of Trade Provisions in International Environmental Agreements and Their Compatibility with the GATT’, 2 Yearbook of International Environmental Law (1991) 3-30 at 8-12; S. Charnovitz, ‘Green Roots, Bad Pruning, GATT Rules and Their Application to Environmental Trade Measures’, 7 Tulane Environmental Law Journal (1994) 299-352 at 333; C. Crawford, ‘Conflicts Between the Convention on International Trade in Endangered Species and the GATT in Light of Actions to Halt the Rhinoceros and Tiger Trade’, 7 Georgetown International Environmental Law Review (1995) 555-585; R.G. Tarasofsky, ‘Ensuring Compatibility between Multilateral Environmental Agreements and GATT/WTO’, 7 Yearbook of International Environmental Law (1996) 52-74 at 57 and 63; R. Wolfrum, ‘Means of Ensuring Compliance with and Enforcement of International Environmental Law’, 272 Hague Academy of International Law: Collected Courses (1998) 9-154 at 66-77; G. Marceau, ‘Conflicts of Norms and Conflicts of Jurisdictions: The Relationship Between the WTO Agreement and MEAs and Other Treaties’, 35 Journal of World Trade (2001) 1081-1131; and C. Wold et al., Trade and the Environment: Law and Policy (Carolina Academic Press Durham/NC 2005) at 678. 135. See M. Yeater and J. Vasquez, ‘Demystifying the Relationship between CITES and the WTO’, 10 RECIEL (2001) 271-276. Of the 153 WTO member States, only five are not currently parties to CITES: Angola, Bahrain, Haiti, the Maldives, and Tonga. 136. See A.E. Boyle, ‘State Responsibility for Breach of Obligations to Protect the Global Environment’, in W.E. Butler (ed.), Control Over Compliance with International Law (Nijhoff: Dordrecht 1991) 69-81 at 73; P.H. Sand, ‘Transnational Environmental Disputes’, in D. Bardonnet (ed.), The Peaceful Settlement of International Disputes in Europe: Future Prospects (Nijhoff: Dordrecht 1991) 123-135 at 131; and Laly-Chevalier, supra note 97, at 525. 137. See the ‘Draft Guidelines for Compliance with the Convention’, Annex to CITES Doc.23/ CoP14 (2007), paragraph IV(B)(2) [now paragraph 22 of the Guidelines]; cf. Schachter, supra note 97; and Sachariew, supra note 97. 138. See supra notes 23-29. 139. Within the sub-order of baleen whales (Mysticeti), humpback whales have been listed since 1979, and sei whales since 2002, on Appendix I of the Bonn Convention on Migratory Species of Wild Animals (supra note 23), to which currently 111 of the 175 CITES member States are contracting parties, too – although Japan is not (see supra note 35).

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6. Conclusions From 2009 on, thanks to the activities of the Japanese ‘Institute for Cetacean Research’ (ICR) and its ‘Whale Meat Nutrition Laboratory’ (Geishoku Labo), Tokyo’s gourmet restaurants will again be able to offer ‘scientifically introduced’ whale delicacies from the Antarctic and North Pacific oceans. While humpback steak [Megaptera novaeangliae] is temporarily off the menu, there still is some rare Northwest Pacific sei whale meat left [Balaenoptera borealis] – albeit at certain health risks to consumers.140 The so-called ‘scientific whaling’ of the ICR not only casts an embarrassing shadow upon the respectable and meritorious work of other Japanese scientists,141 such as the National Institute of Polar Research (NIPR) in particular.142 More 140. In light of recent research findings (including some of ICR’s own test results), the whale meat offered on the Japanese market may not only be contaminated by toxic heavy metal residues – mainly mercury and cadmium – but may also be infected with brucellosis bacteria (otherwise known to scientists as one of the classical agents of bacteriological warfare); see M.P. Simmonds et al., ‘Human Health Significance of Organochlorine and Mercury Contaminants in Japanese Whale Meat’, 65:A Journal of Toxicology and Environmental Health (2002) 1211-1235; K. Ohishi et al., ‘Pathological and Serological Evidence of Brucella-Infection in Baleen Whales (Mysticeti) in the Western North Pacific’, 26 Comparative Immunology, Microbiology and Infectious Diseases (2003) 125-136; T. Endo et al., ‘Contamination by Mercury and Cadmium in the Cetacean Products from Japanese Market’, 54 Chemosphere (2004) 1653-1662; and E.C.M. Parsons et al., ‘It’s Not Just Poor Science: Japan’s Scientific Whaling May Be a Human Health Risk Too’, 52 Marine Pollution Bulletin (2006) 1118-1120. It is worth recalling in this context that the two most famous Japanese cases on environmental liability (the Itai-Itai decision by the Toyama District Court on 30 June 1971, and the first Minamata decision by the Niigata District Court on 29 September 1971, as reported on the front pages of the Japan Times of 1 July and 30 September 1971) dealt with food contamination by mercury and cadmium pollution; see P.H. Sand, Legal Systems for Environment Protection: Japan, Sweden, United States, FAO Legislative Studies No. 4 (Food and Agriculture Organization of the United Nations: Rome 1972) at 20; cf. the second Minamata decision by the Kumamoto District Court on 20 March 1973, English translation in C.J. Milhaupt et al., The Japanese Legal System: Cases, Codes and Commentary (Foundation Press: New York 2006) at 357. 141. The corruptibility of the ICR ‘research programme’, because of its predominant business orientation towards full cost recovery, has been criticized in public by renowned Japanese scientists; e.g., see the interview with Prof. Toshio Kasuya – prominent international whale expert, and former head of the Animal Science Department, Teikyo University of Science and Technology – in the Mainichi Shimbun daily of 3 October 2005, at 3: ‘Tōron: Chōsa-Hogei no Zehi’ [Agora: For and Against ‘Scientific’ Whaling]. See also T. Kasuya, ‘Hogei Mondai o Kangaeru’ [Deliberations on the Whaling Problem], 16 Ekosofia (2005) 56-62; and generally, the critical sociological/historical studies by J. Morikawa, Whaling in Japan: Power, Politics and Diplomacy (Hurst: London 2009), and H. Watanabe, Japan’s Whaling: The Politics of Culture in Historical Perspective (Trans Pacific Press: Melbourne 2009). 142. Established in 1973 as an inter-university research institute under the auspices of the Science and International Affairs Bureau (Monbu-kagaku-shō) of the Ministry of Education, Culture, Sports, Science and Technology (Monbu-shō), the NIPR maintains four Antarctic stations and a Centre for Antarctic Environment Monitoring (established in 1995), as well as an Arctic

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importantly, in terms of international law, Japan’s current ‘research whaling programmes’ in the Antarctic and Northwest Pacific oceans qualify as manifest and persistent infractions of the CITES; in particular, of Article 3(5)(c) of the CITES (‘introduction from the sea’ of strictly protected whale species for primarily commercial purposes as defined by the Conference of the Parties to the Convention in Resolution 5.10); Article 8(7)(a) (non-compliance with reporting duties for marine species, as defined in Resolutions 11.4 and 11.17); and Article 9(1)(b) (failure to designate a ‘scientific authority’ independent from the management authority for marine species, as required by Resolution 10.3). The Conference of the Parties to the Convention, through its Standing Committee delegated for this purpose, should without delay initiate compliance procedures pursuant to Resolution 14.3, and – in conformity with the agreed procedural steps and deadlines – recommend a collective embargo (trade suspension) for trade with Japan in all wildlife species and products, in accordance with Articles 13(3) and 8(1) of the CITES. In view of the imminent risk of further serious infractions of the Convention during the forthcoming North Pacific whaling season (May-July 2010),143 the initiation of such collective countermeasures appears justified and proportionate, not only in the interest of equal treatment of all treaty members (at least 40 of which were subject – with Japanese consent – to similar CITES sanctions over the past two decades after all)144 but also in the interest of the fundamental integrity and credibility of the Convention.

Environment Research Centre (established in 1990) with a field laboratory on Spitsbergen/ Svalbard; see T. Aso and H. Ito (eds.), Environmental Research in the Arctic 2005 (National Institute of Polar Research: Tokyo 2006). NIPR is responsible for the Japanese Antarctic Research Expeditions (JARE), and participates in a number of multilateral and bilateral cooperative programmes such as the 2007/2008 Japanese-Swedish Antarctic Expedition (JASE) as a contribution to the International Polar Year. The annual budget of JARE is approximately 7 billion yen (about US$65 million); see Y. Fuji, Japanese Research Plan in IPY 2007-2008 (National Institute of Polar Research: Tokyo 2007) at 3. 143. Whilst a ‘special permit under ICRW Article VIII’ for the introduction of 50 humpback whales [Megaptera novaeangliae] from the Antarctic Southern Ocean under JARPA-II was temporarily suspended – after massive international protests – on 21 December 2007, the Japanese Fisheries Agency now plans to grant to the ICR a special permit for the introduction of 100 sei whales [Balaenoptera borealis] from the Northwest Pacific in the summer of 2010, pursuant to JARPN-II (supra note 3). Neither of these populations of great whales on CITES Appendix I are subject to Japanese reservations under Arts. 23(2) or 15(3); see supra note 68. 144. See supra notes 125-128 and 133 (table 1, at 261).

Identifying Liability: Ambiguous Charges in International Criminal Law Kirsten J. Fisher* ABSTRACT: The current core crimes with which atrocity criminals can be charged cover a very wide variety of criminal behaviour. Therefore what is communicated by the prosecution of these offenses is muddied, might inappropriately signal similarities between dissimilar criminal behaviour and intentions, and weakens the stigma attached to convictions for the most heinous of crimes. In its aim to answer the question ‘for what should individual contributors to collectively committed atrocity be held criminally accountable?’, this paper suggests that the current list of international charges be expanded to allow for more expressive clarity. It argues, firstly, that the actions, motivations and intentions of lesser perpetrators are of a quite different nature than those of leaders and that they ought to be prosecuted under different labels. Doing so would represent the differences and communicate unmistakably condemnation of both forms while at the same time communicating recognition of the distinctions. Secondly, this paper argues that although, for the most part, leaders shoulder the brunt of responsibility and so ought to be charged with the most heinous of crimes, therefore communicating to the world that their actions are the worst of the worst, charges of genocide or war crimes or crimes against humanity based on command responsibility flout this notion. KEYWORDS: international criminal law; collective responsibility; ICC; command responsibility; expressivism.

1. Introduction The current state of post-atrocity response embraces holding individuals criminally liable for their actions. In recent years there has been an increasing endorsement of criminal prosecution and individual incarceration for those found guilty. This paper examines the content of the current international law statutes with an eye to the expressive value of charging and convicting individuals for existing criminal *

Postdoctoral Researcher, Centre of Excellence in Global Governance Research, University of Helsinki.

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offenses.1 Presently, there are really merely three offenses within the jurisdiction of international courts or tribunals; they are war crimes,2 crimes against humanity, and genocide.3 These three offenses cover a very wide variety of criminal behaviour, including murder,4 torture,5 persecution,6 ordering or soliciting the commission of murder or persecution,7 or the failure of a superior officer to punish subordinates who commit such acts8. Therefore, what is communicated by a conviction for one of these offenses is spread thin. And because atrocity crimes are generally of a collective nature, there is far too broad a spectrum of criminal behaviour contributing to the greater collectively committed atrocity context than the individual crimes themselves to be captured by such a limited list of criminal charges. Although hierarchies of actors in atrocity context have been identified by various scholars,9 there is a lack of sufficient attention to, and evaluation of, whether the current offenses accurately represent and differentiate between the different actors responsible for contributing to the atrocity context or what their prosecution and punishment communicates to the world. Particularly remarkable about the study of international criminal law (ICL) are two features which make atrocity crimes unique beyond the fact, or perhaps causing it to be the case, that there is international state will to see them prosecuted in an international forum. Both features seem to recommend a more nuanced approach to charging individuals with atrocity crimes than is expressed by the international statutes. The first is the collective nature of atrocity contexts. The second is the expressive function of prosecuting and convicting perpetrators who 1.

2.

3.

4. 5. 6. 7. 8. 9.

While the primary focus of the proposal of this paper will be the Rome Statute of the International Criminal Court (ICC) because it is the most recent, likely enduring, and possibly the contemporary standard against which any successive codes might be assessed, this paper will examine the statutes of all current international courts (ICTY, ICTR, ICC). Expressed as Grave breaches of the Geneva Conventions of 1949 (Article 2) and Violations of the laws or customs of war (Article 3) for the Statute of the International Criminal Tribunal for the Former Yugoslavia UN SC Res. 827 25 May 1993, 32 ILM 1203 (1993); and Violations of Article 3 common to the Geneva Conventions and of Additional Protocol II (Article 4) for the Statute of the International Criminal Tribunal for Rwanda UN SC Res 955, 8 November 1994, 33 ILM 1598 (1994). Although the International Criminal Court (ICC) has jurisdiction over the crime of aggression, the Court cannot exercise jurisdiction until the State Parties to the ICC have adopted an agreement confirming a definition of aggression and the conditions under which the Court could exercise its jurisdiction. Rome Statute of the International Criminal Court, adopted 17 July 1998, UN Doc. A/CONF.183/9, UNTS No. 38544, in force 1 July 2002, at Article 7, 1(a). Ibid., at Article 7, 1(f ); Article 8, 2(a)ii. Ibid., at Article 7. 1(h). Ibid., at Article 25, 3(b) Ibid., at Article 28. See for examples: Mark Osiel, ‘Modes of Participation in Mass Atrocity’, 38 Cornell International Law (2005) 793-822; Larry May, Crimes Against Humanity: A Normative Account (Cambridge University Press: New York, 2005).

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contribute to these contexts; the expressive function of ICL is unique because the communicative goals of this project are likely distinct from those of domestic criminal law. I will examine both features briefly here and then lay out how they then suggest that the current list of offenses is too restricted. Part of the challenge of understanding individual contribution to collective action is the fact that charging individuals with collective crimes is, in a sense, judging them responsible for the conduct of others as well as for their own actions. Charging an individual with genocide is charging him not only with his own acts of assault or murder, but also with the fact that his acts contributed to a much wider scheme, incorporating the acts of many other individuals into the assessment of his wrongdoing. As Larry May argues, ‘mass atrocities occur due to the coordinated efforts of many individuals. It is patently unfair to hold one of these individuals responsible for the entire atrocity. Indeed, it is normatively unjustified to do so.’10 And so, while it is important to the ICL project that individuals are held accountable for their own actions contributing to the atrocity context, there is difficulty in deciphering for how much each individual’s actions count. Within collective action of this sort, there are generally different roles which contribute very uniquely to the wider atrocity scheme. And so, one task of this paper is to question whether the current international legal offenses, and how they are applied, accurately reflect the different manifestations of criminal behaviour of those who contribute to atrocity. The appropriate international legal response ought to reflect the issue of interdependence between the collective nature of the broader atrocity scheme and the individuals’ roles. It ought to hold individuals accountable for their contribution to the greater harm, but do so recognizing that different actors contribute differently in a way that may not be sufficiently represented by the currently available criminal offenses. Heinous acts are committed by individuals during widespread international criminal activity and these heinous acts take many forms. That many of these acts should be within the jurisdiction of international criminal institutions is not at issue; nor is it the case that I propose introducing more indictable behaviour to the statutes. Rather, I wish to invite readers to reflect on the fact that there are so few offenses with which to charge criminal action already under ICL jurisdiction. Readers are also invited to question whether such a short list of offenses leads to the available offenses being applied quite broadly, leading perhaps to inconsistency in the law. An extended list might be a necessary refinement to reflect the different criminal contributions to atrocity that individuals actually make. The point here is not that a hierarchy of contributors might not be recognized in ICL, but that the indictable offenses available do not reflect a distinction between dissimilar actors. Although indictments provide detailed 10. Larry May, Aggression and Crimes Against Peace (Cambridge University Press: New York, 2008) at 325.

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accounts of what criminal actions the accused are suspected of performing, and judgments are also quite detailed, these details are buried elements rather than clearly evident from the basic charges. This should be a concern for a body of law which aims to provide justice for the world and for which dissemination of design and accomplishments is a challenge. This condition renders the expressive value of conviction for atrocity crimes at risk of being less than clear regarding for what exactly the conviction expresses condemnation. This brings us to the second feature, which is the expressive function of international criminal prosecutions and the distinctions to be drawn between the international criminal domain and the domestic one. The prosecution, judgment and punishment of perpetrators are instruments of social communication. On an expressive view, punishment communicates to the perpetrator and community condemnation of a particular action and this communication, as Joel Feinberg suggests, performs ‘such symbolic functions as disavowal, [and] non-acquiescence [among other functions]’.11 Part of what justifies ICL is its expressive power.12 The ICL project aims to reinforce the liberal norms of the community, a community comprised of the state parties to the International Criminal Court [ICC] (or the United Nation in the case of the International Criminal Tribunal for the former Yugoslavia [ICTY] or International Criminal Tribunal for Rwanda [ICTR]), norms which include a particular conception of the limits of sovereignty and human rights. ‘In this sense, our response to the cries of the victims, the prosecution of war criminals, is also about the need to reaffirm our self-conception.’13 Prosecuting international criminals, like prosecuting domestic ones, communicates the authority of law, reaffirms the equal value of victims, and reinforces norms for peaceful coexistence in a particular society. However, the contempt for the law, for the victims and for peaceful coexistence demonstrated by crimes committed in contribution to the atrocity context is different than that demonstrated by domestic crimes; the vast majority of atrocity crimes emanate from a different sensitivity or regard by the perpetrator for his or her own person and place in society. The message conveyance of prosecuting perpetrators of international 11. Joel Feinberg, ‘The Expressive Function of Punishment’, 49 The Monist (1965) 397-423 at 420. 12. This is a point I have argued elsewhere while positing that a hybrid retributive-expressive justification best defends the practive of criminal punishment (CPSA Conference 2009, McGill Political Theory Group Workshop 2009), and one which is found in other incarnations by Robert D. Sloane, ‘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, Mark Drumbl, Atrocity, Punishment, and International Law (Cambridge University Press, 2007), May, Crimes Against Humanity, supra note 9. 13. Payam Akhavan, ‘Justice, Power, and the Realities of Interdependence: Lessons from the Milosevic and Hussein Trials’, 38 Cornell International Law Journal (2005) 973-982 at 975. We can assume that by ‘we’ Akhavan refers to members of the liberal society and participants in the field of international criminal law.

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crimes is, in some ways, quite different than that of the domestic sphere since the crimes are of a dissimilar nature.14 On the domestic level, there is a moral and legal order against the backdrop of which the perpetrator has asserted his or her own privileged position. On the expressive theory of punishment, punishment can be seen as communicating a rejection of this privileged position and reaffirming the perpetrator’s place within the moral and legal order.15 It communicates standards necessary for community members to live peacefully together. In contrast, atrocity crimes are committed generally amidst a systemic breakdown. The average perpetrator is not asserting his own privilege in the same manner as he would be if he were to commit a similar act under normal conditions; rather he is acting according to the new standards of his environment.16 The communicative value of ICL is an essential component of the project and this paper argues that the distinction between those who can be identified as leaders and lesser perpetrators, and their contribution to the atrocity context or its influence on them, becomes significant to the message conveyed by their indictment and prosecution. Clarity demands a more nuanced approach to judging, convicting and communicating condemnation within ICL. This paper, then, will begin by depicting the short list of international criminal offenses available to the ICC and tribunals and demonstrating how such lists might inappropriately suggest similarities between very dissimilar criminal behaviour and intentions.17 It will then illustrate how understanding the atrocity context as a collective endeavour affects how the roles and responsibility of each 14. The distinct nature of international crime is discussed, in different forms by Richard Vernon, ‘What is Crime Against Humanity?’, 10 Journal of Political Philosophy (2002) 231-249; David Luban, ‘A Theory of Crimes Against Humanity’, 29 The Yale Journal of International Law (2004) 85-168; and Kirsten J. Fisher, ‘The Distinct Character of International Crime: Theorizing the Domain’, 8 Contemporary Political Theory (2009) 44-67. 15. Jean Hampton ‘The Moral Education Theory of Punishment’, 13 Philosophy and Public Affairs (1984) 208-238 at 217. 16. See: Rhiana Chinapen and Richard Vernon, ‘Justice in Transition’, 39 Canadian Journal of Political Science. (2006) 117-134; Drumbl, Atrocity, supra note 12; Sloane, Expressive Capacity, supra note 12, at 41-42, 58- 65. 17. Although there are distinct dissimilarities between the statutes of the ICTY, ICTR, and the ICC, they each comprise a short list of crimes, effectively the same three prosecutable offenses: war crimes (expressed as Grave Breaches of the Geneva Conventions of 1949 [Article 2] and Violations of the laws or customs of war [Article 3] by the ICTY Statute, and Violations of Article 3 common to the Geneva Conventions and of Additional Protocol II [Article 4] by the ICTR Statute), crimes against humanity (identically described in Article 5 of the ICTY Statute and Article 3 of the ICTR Statute, and described with some additional elements, such as enforced disappearance of persons and the crime of apartheid, in Article 7 of the ICC Statute), and genocide (identically described in Article 4 of the ICTY Statute and Article 2 of the ICTR, coinciding with the Convention on the Prevention and Punishment of the Crime of Genocide [entry into force 12 January 1951, 78 UNTS 277] and similarly described in Article 6 of the ICC Statute (minus mention of conspiracy to commit genocide, incitement to commit genocide, attempt to commit, or complicity in genocide).

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actor are considered. This section questions to what extent each actor can be held responsible for his or her contribution to the collective violence. The next section, divided into two sub-sections, argues for more clarification in the available criminal charges. To truly reflect the actions and liability of atrocity perpetrators, it argues, charges ought to better replicate degrees of responsibility for the atrocity. Firstly, the actions, motivations and intentions of lesser perpetrators are of a quite different nature than those of leaders and they ought to be prosecuted under different labels to represent the differences and communicate unmistakably condemnation of both forms while at the same time communicating recognition of the distinctions. Secondly, it will argue that although, for the most part, leaders shoulder the brunt of the responsibility and so ought to be charged with the most heinous of crimes, therefore communicating to the world that their actions are the worst of the worst, charges of genocide or war crimes or crimes against humanity based on command responsibility flout this notion. Leadership, in this case, represents a position and not any particular task committed. And so, while clarity demands that ICL charges be expanded to represent differences between the contributions of leaders and lesser perpetrators, it also demands that charges not falsely and unfairly label individual commanders as leaders of atrocity contexts simply because of their professional positions or rank. Precision and clear communication of values calls for an extended list of criminal offenses that plainly identifies the criminal behaviour condemned by their prosecution.

2. The Short List of Criminal Offenses Let us begin this dialogue with a comparison between two individuals who were charged with the same offenses by the ICTY: Duško Tadić and Slobodan Milošević. Each case is well known for different reasons. Tadić was the first accused to be captured and held for trial by the ICTY and his trial was to be an example, the first international trial in 50 years.18 Milošević was a former head of state, having served as the President of Serbia (1989-1997) and serving as President of the Federal Republic of Yugoslavia (1997-2000) when indicted in 1999. Both were charged with crimes against humanity, and war crimes (expressed as grave breaches of the Geneva Conventions and Violations of the Customs of War) – Milošević was also charged with genocide.19 What is interesting, given that they were charged effectively with the same crimes, is that not only their status in the conflict, but also their actions and contributions, were completely dissimilar. 18. Jose Alvarez, ‘Nuremberg Revisited: The Tadic Case’, 7 European Journal of International Law (1996) 245-264. 19. Prosecutor v. Dusko Tadić,. ICTY Case No. IT-94-1,-I; Prosecutor v. Slobodan Milosevic ICTY Case No. IT-02-54.

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Tadić was a lesser player, what is sometimes referred to in the literature as a ‘small fry’.20 To be sure, he performed horrendous crimes, including forcing inmates at a concentration camp to perform atrocities on each other. It is unclear, however, whether Tadić was a member of any recognized military or militia in the conflict. ‘Rather, the 39-year-old, father of two was, supposedly, a recreational killer’.21 He has been described as ‘only a savage pawn in the Bosnian Serb forces’.22 His crimes were appalling, but he was not a leader or an instigator. Milošević, on the other hand, was a leading political figure. He was by no means a minor player in the conflict or, allegedly, in great atrocities committed in furtherance of his political agenda. Milošević, it was argued, could ‘be held personally responsible under international law for war crimes committed by Yugoslav federal forces, the forces of the Republic of Serbia, and Serbian paramilitary units in Croatia and Bosnia. ... The atrocities committed by Serbian forces were part of a planned, systematic, and organized campaign to secure territory for an ethnically “pure” Serb state by clearing it all of non-Serb populations.’23 Of course, his crimes were not committed by his own hands but were the work of others. He was charged under both superior criminal responsibility and individual criminal responsibility even though ‘Nobody suggests that Milošević himself dirtied his hands and personally committed any of these atrocities. It is as a commander, leader, and organizer that his possible criminal liability arises.’24 To try both of these individuals under the same offense would seem to inappropriately draw comparisons between them. And doing so might dilute the stigma attached to what are arguably the most heinous of crimes: the establishing and promoting of atrocity schemes, engineering plans and policies, motivating action, exploiting resources of the state (or other highly organized political group) for horrendous ends. Here I take the liberty of simply positing that these leadership crimes are of a worse character than the crimes of ‘small fry’; this argument will be made more explicit throughout this paper.25 However, if we only accept that there 20. ‘Small fry’ is common terminology for those individuals who play minor roles in the greater atrocity. They can be opposed to ‘big fish’, those who hold positions of power and authority and play a much larger role. One recent work, of many, which focuses on these roles is: Osiel, Modes of Participation, supra note 9. 21. Bruce T. Smith, ‘Vengeance on Trial: Sadism in the Dock’ 43 Federal Lawyer (1996) at 6. 22. Gary Bass, Stay the Hand of Vengeance: The Politics of War Crime Tribunals (Princeton University Press: Princeton, 2000) at 206. 23. Norma Cigar and Paul Williams, Indictment in the Hague: the Milosevic Regime and Crimes of the Balkan Wars (New York University Press, 2002) at 21. 24. Michael Scharf and William Schabas, Slobodan Milosevic on Trial: A Companion (Continuum International Publishing Group: London, 2002) at 2. 25. A hierarchy of offenses, as already mentioned, is identified and commented on by theorists and international lawyers alike (see: Osiel, Modes of Participation, supra note 9; May, Crimes Against Humanity, supra note 9), and is often reflected in judgments and sentencing rendered. Although this position, then, that leadership crimes are of a worse character than the crimes

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is a substantial and essential difference to be drawn between these crimes, even if we wish not to judge one type of crime worse than the other, then we are still drawn to recognize a deficiency in the statutes for not reflecting this difference.26 But, if the substantial differences ought to lead to judging leadership crimes as more depraved, then the current statutes not only fail to reflect significant dissimilarities, but also seem to provide for prosecuting cases of lesser perpetrators ‘as involving much larger crimes than the acts of a heinous individual’ as May charges was done in the case of the minor player, Tadić.27 According to the statutes as they stand, the most heinous leadership crimes are virtually the same as acts (albeit brutal ones) by lesser perpetrators who carry out the schemes. At least one international institution, the ICTY, has seemingly made no real distinction in applying the available offenses between those who contribute to establishing the atrocity environment and those who are shaped by it, and there is nothing explicit in the Statute of the International Criminal Court (Rome Statute)28 to constrain the Court from similarly broadly applying the few charges available to it to an extensive array of criminal behaviour contributing to atrocity. That there is no distinction between leadership crimes and those committed by lesser perpetrators drawn into the statutes would seem to be an incredible shortfall in international criminal justice. It is valuable to safeguard the stigma attached to convictions for certain international crimes, those that are considered the worst of the worst. If part of what justifies ICL is the expressive power of judgment and punishment of perpetrators of these crimes, and the message that accompanies the process is one of condemnation and reinforcement of particular values, then it is very important to the ICL project that the designation of criminal offense for which a perpetrator is convicted clearly presents to the audience of the trials a notion of the exact nature of the perpetrator’s transgression(s). With an aim of arguing the need for an expanded list of international criminal offenses, this paper now turns to examining the context in which individuals contribute to collectively performed atrocity. Such an examination sets the stage for an argument for more nuances in international criminal offences, suggesting that the existing list of crimes be expanded and that the doctrine of command responsibility, whereby individuals of more minor players in the greater atrocity is not a novel one, it still requires attention and defense, especially as such a hierarchy is not emphasized in any of the three examined statutes. 26. Rather than emphasizing the distinct nature of different actions leading to criminal liability, Article 25 of the Rome Statute lumps them together by listing actions as disparate as committing a crime individually or jointly (Article 25,3(a)), ordering or soliciting a crime (Article 25, 3(b)), and aiding and abetting (Article 25,3(c)) under a single heading of Individual Criminal Responsibility. 27. May, Crimes Against Humanity, supra note 9, at 118. 28. Rome Statute, supra note 4.

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are charged with the actions of their subordinates, might lead to unfair labelling, a concept I will explain in a later section of this paper.

3. The Difference Context Makes A special understanding of the context of collective action atrocity and its influence on contributors is required to fully grasp the role and responsibility of each actor. The actions of individuals play a significant role in the accomplishments of the collective, but, so too does the general state of the collective have a very serious effect on the frame of mind and actions of individuals. Mass atrocity requires the involvement of many people; some who play a role in establishing the atrocity environment and some who are shaped by it; some with intent, many in fear themselves, caught up in a movement of violence, anxiety, and hatred. This inter-reliance between the individual’s effect on the collective project and the collective action and environment’s effect on individuals especially needs to be heeded when examining for what individuals ought to be held responsible. It plays a great role in the most important question: how do we most accurately, morally and practically, hold individual participants accountable? Although there is reason to reject the concept of collective responsibility, there is a sense in which the total wrong is far worse than the sum of the individual wrongs and therefore requires a particular understanding. A most serious critique of the idea of collective responsibility is that such an understanding of a situation can lead individual persons to blame his group for wrongs committed and escape responsibility in his own mind for his own participation and wrongful acts.29 Similarly, being held individually accountable in a culture that recognizes collective responsibility may lead ‘particular culpable agents who regard a group as primarily accountable for what they do and who inhabit a microculture of covert support [to] consider being held accountable as an incidental cost attached to their institutional role, rather than as a warranted response addressed to them personally.’30 In other words, collective responsibility carries within it the inherent risk of de-personalization. However, to fully understand how responsibility attaches to any one individual contributor to mass atrocity, sensitivity to the collective nature of the wrong in essential. Understanding the importance of context in comprehending actions helps us better examine and attribute responsibility to individuals. It allows us to make sense of actions that lack meaning, or would be considered differently, if examined independently. Doing so lends more meaning to actions, making them more significant and our understanding of them more insightful. But, understanding 29. H.D. Lewis ,‘Collective Responsibility’, 23 Philosophy (1948) 3-18. 30. Christopher Kutz, Complicity: Ethics and Law for a Collective Age (Cambridge University Press, 2000) at 6.

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their contributions to the broader collective scheme in this way is only part of the challenge to understanding the individual’s actions. In understanding actions of individuals as part of a collective scheme, careful attention must be made not to err on the side of holding individuals liable beyond their own (purposeful) involvement. H.D. Lewis, in his 1948 article, simply states, ‘If I were asked to put forward an ethical principle which I considered to be especially certain, it would be that no one can be responsible, in the properly ethical sense, for the conduct of another.’31 Generally, this statement can be agreed to by all moral philosophers. However, in cases of attributing responsibility for genocide or crimes against humanity, the aim is to attribute culpability to particular individuals who then shoulder the burden of guilt for harms that could not be achieved by only one person. Individual actions contribute to collective wrongs; this is a practical and moral truth. The question to be addressed here is not whether the actions of individuals play a significant role in the collective nature of many of the world’s worst human security disasters, but how, for what, and to what extent we can hold those individuals morally and legally responsible for their contribution. Are they held responsible only for their own part of the violence (therefore only guilty of murder or assault) or are some individuals, perhaps those who incite, support, and participate in a terrible and widespread atrocity, responsible for far more than they personally perform? Certainly, isolated action inspired and exercised in a relatively peaceful lawlessness-vacuum, in an environment void of pressure and examples of criminal behaviour, is extremely different than action performed in, and contributing to, a criminal atmosphere. Therefore, to understand the responsibility of collectives and the condition in which actions are taken is to better understand individual actions and responsibility. Understanding any act requires a certain amount of sensitivity to the environment in which it is committed, the background against which the act or inspiration originated. As much as recognizing relative peace and order as the backdrop to many domestic crimes (of murder, theft, assault, etc.) reveals a particular anti-social nature to the criminal behaviour, recognizing the markedly different environment which functions as the backdrop to atrocity exposes the distinct characters of the acts and actors performing in the atrocity environment. In the former case, the crime must be recognized as aberrant behaviour, behaviour that is considered harmful or in other ways undesirable by the community and detrimental to the purpose of coordinated and safe living for the members of the community. In the latter, though the act may be the same, the character of the action as well as the nature of the actor are dissimilar; the impulse and purpose, and intention are likely quite different. 31. Lewis, Collective Responsibility, supra note 18, at 3.

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Mark Drumbl points to the distinctiveness of crimes committed within an environment of atrocity in his book, Atrocity, Punishment, and International Law, claiming that they are unique in two ways. The first is that the environment in which the crimes are committed is unusual. Perpetrators are not committing crimes within the context of a normal law-abiding society in which violent crimes are the exception.32 To be sure, extraordinary international crimes violate jus cogens norms and, thereby, are universally condemnable. That said, whereas for the most part individual participation in ordinary crime deviates from generally accepted social norms in the place and time where the crime is committed, extraordinary crime has an organic and group component that makes individual participation therein not so self-evidently deviant.33

Secondly, because of this general context of corruption and unlawful activity, individuals comprise different types of criminal, to which guilt must be differently attributed. Drumbl identifies three different types of criminal actors. For the purposes of this paper, his categories will suffice for now, and it is unnecessary for us to examine whether these are the only or the best classifications of criminals active in pervasive and methodical atrocity. He claims: First, at the apex, are conflict entrepreneurs: namely, those individuals who exacerbate discriminatory divisions, which they then commandeer. Among their goals is to acquire and retain political power. Second are those leaders who, while exercising authority over others and often ordering killings, themselves remain subject to authority and, accordingly, are ordered into ordering others. Authority, after all, is situational. The third category includes the actual killers, most of whom are ordinary folks. This category is often very large in number.34

Members of each of these groups, no doubt, shoulder much moral and legal responsibility. However, it seems wrong to view them all as responsible in the same way, possessing the same degree of liability. The degree of evident responsibility attributable to these different types of criminal, though, is difficult to appreciate. It seems reasonable that those who Drumbl names conflict entrepreneurs and leaders should be the ones on which ICL must focus its most significant attention; and this is an issue to which this paper will return. So, looking to the context in which the individual’s actions are performed, that of the collective moral wrong, both gives more weight to the actions (than the actions would have against a different backdrop), and should relieve some 32. Jan Klabbers similarly argues that human rights violators are ‘not usually inspired by evil motives’. See: Jan Klabbers ,‘Just Revenge? The Deterrence Argument in International Criminal Law’, 12 Finnish Yearbook of International Law (2001) 249-267 at 253. 33. Drumbl, Atrocity, supra note 12, at 24. 34. Ibid., at 25.

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of the perpetrators of some of the responsibility, based on the fact that external pressure would likely diminish free and genuine intent.35 Examining the actions of atrocity actors in this way speaks to each of the three elements of a criminal offense: the actus reus, the mens rea, and the attendant circumstances, each of which helps to determine the offense with which he or she can be charged. An individual’s participation in a collective crime is not defined solely by his or her particular actions, no matter how despicable. A murder committed within the context of genocide is of a very different nature than the same act committed under different circumstances. And realizing this admits a certain tension between judging only the actions committed by the individual and also appreciating their role in the broader context. Judging this individual’s responsibility must include recognizing the actions as contributing to the wider scheme while at the same time viewing the criminal context as both alleviating and exacerbating the responsibility for his or her criminal behaviour. Tracy Isaacs speaks to the exacerbating condition. She argues that holding an individual morally responsible for his or her part in bringing about collective harm, in this case only the killings that he or she perpetrated, overlooks an important element of the situation. [R]egardless of how we evaluate the three relative to each other, murder and mass murder are different from genocide. This observation might lead us to believe that the current proposal [which says that participants are responsible only for what they, as individuals, do] might be missing out on something, insofar as it does not capture this difference. For if we focus too narrowly on individuals, then we risk giving a distorted account of what the individuals do and what they take themselves as doing.36

Isaacs argues that focusing too narrowly on individuals risks missing out on the greater harm to which the individual’s actions contributed. In line with Isaacs’ position, current ICL, in that it can charge lesser perpetrators with crimes against humanity or genocide, does indeed reflect the fact that actions are contributing to greater harm. However, it is also important to acknowledge that charging an individual with genocide for what could be considered an insignificant role in the genocidal enterprise (insignificant to the enterprise, not to the individual’s victims) is also missing out on something considerable. It misses what Isaacs herself recognizes, that genocide generally cannot be committed by a single individual. Even if the perpetrator took himself to be contributing to a genocide he was, in fact, basically committing murder within a context of others doing the same. 35. For a similar argument, see: Sloane, Expressive Capacity, supra note 12, at 59-62. 36. Tracy Isaacs, ‘Individual Responsibility for Collective Wrongs’ in Joanna Harrington, Michael Milde and Richard Vernon (eds), Bringing Power to Justice? (McGill-Queen’s University Press: Montreal, 2006) 167-190 at 170.

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Isaacs rightly argues that ‘we fail to capture the extent and nature of the wrong if we do not consider the individual act in the context of the acts of others.’37 I agree with Isaacs’s statement for her reason and for one completely different than the reason she relies upon. She claims that an act is more morally wrong when it is performed in a larger context of similarly bad behaviour the consequence of which is worse than simply that one bad act. Her example is running an air conditioner or driving a car. Alone these acts are not morally wrong but combined with similar acts by many others, these acts contribute to dangerous air conditions and are therefore morally wrong.38 On the other hand, she ignores the social permission to perform these bad acts or the psychological pressure to conform. As Hannah Arendt calls attention to in her discussion of Adolf Eichmann’s involvement in the activities of Nazi Germany, ‘none of them [German murderers] were likely to commit murder of their own free will.’39 Circumstances in which individuals find themselves evoke in them actions that they would be unlikely to commit removed from that particular environment. This, of course, is not a surprising or novel idea. Even Daniel Goldhagen, author of Hitler’s Willing Executioners, must concede that even if the German people were culturally programmed to eliminate the Jews, as he argues, individual Germans did not go about killing German Jews before Hitler’s pursuit of his genocidal goals became state policy.40 The important point is that the collective nature of the wrongful acts is a significant element, of which consideration must be taken in determining ultimate responsibility. Assessment of performing bad acts while embedded in an environment cultivating them should at least involve appreciation of this environment as extenuating, as well as exacerbating, conditions. For another example of the type of environment that can be called a criminal atmosphere, besides that of Nazi Germany, one that could potentially reduce responsibility for international crimes, think of Rwanda during the summer of 1994. The radio broadcasts promoted atrocity, the streets were dangerous and exhibited fear and hatred and death, and not acting according to the new rules of behaviour could put persons of the non-targeted Hutu group also at risk.41 Persons living in, and trying to survive and make sense of, this environment 37. Ibid., at 172. 38. One need not agree that collectively running air conditioners contributes to dangerous air conditions or that contributing in such a way to bad environmental conditions should necessarily be judged morally wrong to grasp Isaacs’s point that it might reasonably be the case that actions performed as part of a greater scheme or contributing (intentionally or not) to a significant harm are of a worse character than the same act performed in isolation. 39. Hannah Arendt, Eichmann in Jerusalem, a report on the banality of evil (first published 1963, Penguin Books: New York, 1994) at 16. 40. Daniel Jonah Goldhagen, Hitler’s Willing Executioners (Vintage Books: New York, 1996). 41. Alison Des Forges, Leave None to Tell the Story: Genocide in Rwanda, Human Rights Watch (1999), available online at (visited 15 March 2010) at ‘Popular Participation’.

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must respond to the actions of others around them. Under these conditions, the majority of individuals involved in the criminal enterprise are not so much acting defiantly as they are conforming to their new social environment. Their contribution to a moral wrong committed by a collective was inspired more by an impulse to conform to the social group than to act defiantly.

4. A Call for Further Clarity Mark Zaid, arguing similarly to the position presented in this paper, maintains that ‘it is not necessarily those who seemingly change overnight for no apparent reason that should be brought to trial before an international tribunal, but rather those who caused the igniting spark that set that transformation in motion.’42 Tadić, and others like him, obviously, fit somewhere on the continuum of degrees of responsibility. He was not an instigator or leader, but he whole-heartedly supported the larger criminal project and acted on his emotional endorsement with devastating consequences. An act of genocide, crime against humanity or war crime involves acts, such as murder or torture, which are already prohibited under domestic law.43 And yet, there is reason to prosecute some of these actions under ICL. Diverging from Zaid’s argument, I would not necessarily promote severing the crimes of lesser perpetrators from international statutes and courts to try them under domestic criminal codes, although there is something to be said for domestically situated and administered legal processes with international oversight. I propose, on the other hand, that ICL admits additional offenses to cover these crimes more appropriately. Again, the main goal of this paper is to argue for more clarification in criminal charges. The stigma attached to conviction for atrocity crimes reflects the attitudes of audience members to the actions associated with the particular offenses. Therefore, the associated label should as precisely as possible convey the nature of the criminal action. In this section, then, I will illustrate the need for an expanded list of offenses to distinguish (clearly by the offenses with which the accused are charged) between different groups of criminal behaviour. I will also demonstrate how the creative approach adopted by the Rwandan National Assembly to deal

42. Mark S. Zaid, ‘Trial of the Century? Assessing the Case of Dusko Tadic Before the International Criminal Tribunal for the Former Yugoslavia’, ILSA Journal of International and Comparative Law (1997) 589-596 at 594. 43. Of course, not all of the prohibited acts are already prohibited under all the domestic laws of all states. For example, many states do not have domestic laws regarding ‘forcible transfer of population’ or ‘extermination’ or even rape of certain categories of women. This is not, however, a serious obstacle for this theory since I am not claiming that commission of these actions should be tried under domestic law.

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with the overwhelming number of suspects who were still to face justice in 2001 reflects in practice some of the main arguments of this paper. After doing so, I will argue that clarity also demands that the charges for the most heinous crimes (war crimes, crimes against humanity, and genocide) be applicable not on a command responsibility basis but only based on the fact that the accused was genuinely and individually responsible for the atrocity outcome. As in the case of the lesser perpetrators, different charges should be made available to cover the crimes of omission of these commanders and they ought to communicate to the world the particular conduct of the accused.

4.1. A Case for Expanding the List of Offenses To truly reflect the actions and responsibility of atrocity perpetrators, the legal response should clearly replicate degrees of responsibility for the atrocity. A reasonable distinction to draw lies between leaders and lesser perpetrators. Leaders, as I see them, would correspond to what Drumbl refers to as conflict entrepreneurs and leaders; lesser perpetrators would be those included in Drumbl’s category of actual killers. The primary concern of international criminal law is, and ought to be, those leaders who inspire genocidal schemes, who motivate action around exacerbated discriminatory divisions,44 and who exploit the resources of a state or other highly organized political group for horrendous ends. Those on the lower rungs do not escape responsibility but they, most definitely, should elude prosecution under the same offenses. The actions, motivations and intentions of these perpetrators are of a quite different nature than those of the leaders. The crimes of lesser perpetrators, those of murder or assault, are difficult to diagnose; they are both worse than ordinary domestic cases of murder because they play a role in a larger scheme and are also less depraved than these domestic cases because they fit the dictates of the current social context in which the individuals find themselves. An instigator, a leader, should be charged not only with his individual violent actions, not only with his ‘dirty-hands’ part in the genocide, but with the international crime of genocide itself. As Gilbert suggests, although she denies that they must be to blame, ‘those who formed the intention in question will clearly be prime suspects in terms of those individuals who are personally to blame in connection with the collective’s act.’45 Others, including those who carry out the actual bad acts, can be charged with an offense that represents contribution to genocide, which not unfairly demands a different degree of intent. Individuals like Duško Tadić, then, are unlikely to fit the requirements

44. Drumbl, Atrocity, supra note 12, at 25. 45. Margaret Gilbert, ‘Who’s to Blame: Collective Moral Responsibility and its Implications for Group Membership’, Midwest Studies in Philosophy (2006) 94-114 at 109.

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to be genuinely and reasonably prosecuted for offenses which imply commission of the broader criminal scheme. There are, of course, alternatives to the charge of genocide already built into the statutes of the ICTY and the ICTR but not the ICC.46 These alternatives, such as complicity to genocide or aiding and abetting, however, do not reflect the distinctions in contribution I am attempting to clarify or how they ought to be identified to the audience of the ICL project. Complicity to genocide or aiding and abetting do not cover actual acts of killing or actions causing serious physical harm. Crimes that would fall under complicity to genocide are crimes more distant from the actual physical acts. Since there is no definition of complicity to genocide in the statutes, the task of defining it fell to the tribunals themselves. ‘For the first time in international humanitarian law, the ICTR in the Akayesu Case examined the concept of complicity in genocide in detail. In its decision, the International Tribunal defined the notion of complicity and accomplice in this regard for all crimes as follows:’ 47 complicity is . . . a form of criminal participation by all criminal law systems . . . the accomplice to an offence committed by another, complicity necessarily implies the existence of a principal offence. 48

‘According to the Tribunal, the physical elements (actus reus) of complicity in genocide can mostly be in three different forms of accomplice participation, namely, “complicity by instigation, complicity by aiding [or] abetting, and complicity by procuring means”.’49 None of these three elements of the crime incorporates the physical act of killing, torture, or some similar harm. Complicity to genocide crimes, as defined by the tribunals, seem to be less heinous than those acts which would deserve charges of genocide; however, I would argue, and it is generally agreed, acts of direct and public incitement to commit genocide ought to be considered among the worst crimes. These are the actions which deserve the charge of genocide because they are acts which promote and support the atrocity context more significantly than individual acts of killing. The other criminal acts identified as complicity to genocide, aiding and abetting or procuring means, might reasonably be regarded as of a different and lesser (although still serious) criminal nature. 46. Statute of the International Tribunal for the Former Yugoslavia. Adopted 25 May 1993 by Resolution 827 of the Security Council of the United Nations, Article 4 (3); Statute of the International Tribunal for Rwanda, Adopted 1994 by Resolution 955 of the Security Council of the United Nations, Article 2(3). Also see: the Convention on the Prevention and Punishment of the Crime of Genocide. Adopted by Resolution 260 (III) A of the UN General Assembly (9 December 1948), Entry into force: 12 January 1951. 47. Yusuf Askar, Implementing International Humanitarian Law: From the Ad Hoc Tribunals to a Permanent International Criminal Court (Routledge: London, 2004) at 233. 48. ICTY. Trial Chamber, Akayesu Case, Judgement, para 6.3.2.327, 49. Askar, Implementing IHL, supra note 47, at 234.

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The Rome Statute, unlike the ICTY or ICTR Statutes, does not include a provision for complicity. Rather, it lays out different possibilities for individual criminal liability by lumping together disparate criminal actions under the jurisdiction of the Court in Article 25, listing the commission of ‘such a crime, whether as an individual, jointly with another or through another person,’50 the ordering, soliciting or inducing the commission of such a crime,51 the aiding, abetting or otherwise assisting in the commission or attempts at commission of such a crime,52 and directly and publicly inciting others to commit genocide specifically.53 Although it is unlikely, at least under current conditions,54 that lesser perpetrators will face the Court, there is nothing in the Rome Statute to preclude this possibility nor any provision in the Statute to differentiate their crimes from leadership crimes. May argues that ‘while it is true that heads of state normally do not do the deeds of murder, rape, or torture themselves, these acts would not occur but for the direction of these leaders.’55 These leaders are likely to have the requisite mens rea that is necessary for the broader international crimes of genocide and crimes against humanity. He argues that heads of states can be said to embody the mens rea of the state and therefore, even if direct links between the particular leader and the atrocious actions of his soldiers or citizens cannot be made, responsibility can be established. For the most part, May has the idea right. However, this dismissal of the necessary link between perpetrator and outcomes is unreasonable and unnecessary. It is often difficult to connect a leader to express direction, but this should be an important goal of international prosecutions. And, of course, international prosecution should not be limited to heads of state; its reach must include lesser leaders, formal and informal (the category of informal leaders would include instigators and motivators), under existing offenses. What I propose, then, is that the list of international criminal offenses be rewritten and expanded. The existent offenses – crimes against humanity, war crimes and genocide – ought to be reworked to be more restrictive. They ought to represent only those actions which work towards establishing and sustaining the atrocity environment, actions which aim to instigate, command, inspire and develop criminal policy. These actions are particularly egregious because, for the most part, collective action of the sort of interest to this discussion requires social

Rome Statute, supra note 4, at Article 25, 3(a). Ibid., at Article 25, 3(b). Ibid., at Article 25,3(c). Ibid., at Article 25,3(e). The ICC is in its infancy, financially and practically it would be impossible for it to attempt to deal with the vast number of perpetrators who contribute to atrocity globally, and a key goal of the Court is to trigger national proceedings, especially against the lesser perpetrators. 55. May, Crimes Against Humanity, supra note 9, at 154. 50. 51. 52. 53. 54.

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coordination. These actions promote or produce this coordination and are most responsible for its consequences. On the other hand, those actions committed in support of these plans, either ordered or performed based on the perpetrator’s endorsement of the criminal scheme, ought to be covered by different offenses. The nature of these crimes can be seen as occupying ground somewhere between the most heinous international crimes (accompanied by the stigma attached to these) and domestic crimes comparable in action to those contributing to the atrocity. New criminal offenses should be written to reflect these crimes as less heinous than those of leaders who establish, promote and oversee the plan (at different levels) and both more and less dreadful than domestic cases of murder, torture, rape or even mass murder. In critique of this proposal, some might argue that there are cases in which low level perpetrators are treated quite differently than ‘bigger fish’ and that such cases indicate that this distinction I call for is already being played out in the courts. One example of such a case is Dražen Erdemović, a lesser perpetrator whose ICTY trial was noteworthy because it was the first application of the defence of duress. Erdemović claimed that his life had been threatened and it was for this reason that he committed the acts he did. Although this claim did not absolve him of liability it did, critics would be right to point out, affect his sentence. However, in my opinion this case serves to strengthen the claim of this paper, that lesser perpetrators ought to be charged with distinct offenses. Erdemović was originally charged with crimes against humanity and war crimes.56 His actions reflect a very dissimilar criminal nature to actions of atrocity leaders. Charges and convictions of crimes against humanity or war crimes ought to be accompanied by the strictest of social stigmas. Maintenance of this stigma will likely require that criminal behaviour such as that exhibited by Erdemović be identified by a different label, evoking a still very serious but different stigma. A better example, something very much in line with this proposal, is actually exhibited in accountability mechanisms in Rwanda with the necessary division of prosecutorial labour between the ICTR, national courts and the gacaca trials. Prosecutions under international and national jurisdiction focus on Category 1 suspects, those accused of planning, organizing, inciting, supervising, and persons who acted in positions of authority (leaders of genocide and crimes against humanity), and notorious murderers, those known for the brutality of their crimes, and persons who committed sexual torture.57 Category 2 suspects 56. The Prosecutor v. Drazen Erdemovic, Case No. ICTY IT-96-22, (22 May 1996). In a subsequent trial the prosecutor chose only to pursue the charges for war crimes for Erdemović’s contribution to a massacre. 57. Organic Law No. 08/96 of August 30, 1996 on the Organization of Prosecutions for Offences constituting the Crime of Genocide or Crimes against Humanity committed since October 1, 1990 at Article 2.

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(including authors of or accomplices in homicide or attacks which resulted in the death of the victim) as well as other lesser perpetrators connected to the 1994 genocide are delegated to the localized gacaca courts.58 This division of labour, due to the massive number of suspects accused of contributing to the genocide, makes tremendous sense both practically,59 and in any aim to truly respect and communicate the different modes of participation and degrees of responsibility. This categorization of crimes illustrates well what this paper has been advocating should be a key component of all ICL statutes. Prosecutions by category depict to the audience of the judicial process more precisely what the suspect is accused and convicted of, and what the nature of condemnation is. Rather than in a position to assist national adoption of good ICL practices, international statutes should look to the Rwandan application of ICL for an example of justified refinement. The Rwandan categorization does not, though, exactly coincide with the divisions advocated in this paper (although close enough to mostly satisfy this author), nor is it as polished as it could be. Alison Des Forges, in her extensive account of the Rwandan genocide and aftermath, argues that: The definitions of category one are broad, including such terms as “notorious killers” and those who killed with “excessive malice” and “zeal.” This vagueness leaves substantial latitude to prosecutors and judges and introduces the possibility that there may be significant variation from one jurisdiction to another in how the terms are applied. The consequences of assignment to a category are serious.60

Perhaps some might see no trouble with including those accused of singularly horrific murders in the category of the worst. I have advocated, rather, that only those responsible for engineering the atrocity context be convicted of the crime of genocide (or Genocide 1 or the Rwandan Category 1). Even so, when what gets counted as the worst crime of genocide includes such vague and indeterminate terms as “excessive malice” and “zeal”, there is great risk of inconsistency in application. And, therefore much can be prosecuted as a crime of genocide or crime against humanity, and not one of the international statutes, of the ICTY, ICTR or the ICC, can be employed to help draw distinctions between categories since they are more inclusive than the Rwandan National Assembly’s definition of Category 1. It is beyond the scope of this paper to suggest exactly how these criminal offenses should look or the names they ought to be given. Possibly, additional offenses could take names such as ‘participatory genocide’ to distinguish them 58. Organic Law No. 40/2000 of 26/01/2001 Setting up ‘Gacaca Jurisdictions’ and Organizing Prosecutions for Offences Constituting the Crime of Genocide or Crimes against Humanity Committed Between October 1, 1990 and December 31, 1994. 59. William A. Schabas, ‘Genocide Trials and Gacaca Courts’, 3 Journal of International Criminal Justice (2005) 879-895. 60. Des Forges, Leave None to Tell the Story, supra note 41, at ‘Legislation’.

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from genocide, or ICL statutes could copy the Rwandan example, or could incorporate altogether new names to reflect something like the distinction between murder and manslaughter at the domestic level. My recommendation would be the latter as it would secure a distinct impression in the minds of the audience. The problem with this route, perhaps, would be that the new names would be too much disassociated with the existing core crime (of genocide, for this example) and potentially contribute to further misunderstanding. The point is to recognize a need to increase the options to which international criminal law can turn to prosecute in order to increase communicative clarity. The range of international crimes applicable, including complicity and aiding and abetting, misses the mark in representing the distinction between those who commit the killing acts, but who can be regarded as lesser perpetrators, and those who at a distance create the atrocity context and ought to be held liable for the context itself. Allowing offenses to cover both individuals like Tadić and leaders like Milošević, who use their political power to instigate such horrendous acts of violence, likely waters down what the convictions could mean, in terms of their expressive value, and also fails to represent the significant differences in their criminal actions. Gerry Simpson, in his recent book, Law, War and Crime, writes that there is ‘a wider need in the culture to see war criminals as at the same time uniquely evil (“no one but Milosevic could have led the Serbs to such moral depths”), culturally representative (“Milosevic simply anthropomorphizes a system gone horribly wrong”) and typically human (“what would I have done in Milosevic’s shoes?”).’61 Simpson’s words further demonstrate the need for a distinction between the current international crimes and the proposed additional crimes which would deal with lesser offenses. A leader or instigator can be perceived as uniquely evil and culturally representative perhaps. But, it is unlikely that the common person who asks himself or herself ‘what would I have done in his shoes?’ would answer that he or she would act as Adolf Hitler, Slobodan Milošević, Charles Taylor, or Joseph Kony acted. As has been considerably documented, it is possible that a reasonable person might be led under extreme circumstances to commit acts of murder or torture according to state policy or similar influences.62 It is even more possible that the same reasonable person might exhibit features of what Simpson, referring to the Eichmann trial, describes as ‘another perhaps more disturbing symptom of modern industrial society: the figure of the unexceptional political mass murderer.’63 A zealous bureaucrat, who by signing orders sent thousands of 61. Gerry Simpson, Law, War and Crime (Polity Press: Cambridge, 2007) at 75. 62. There are, of course, many examples of, and commentaries on, this phenomenon. For examples, see: Stanley Milgram, ‘Behavioral Study of Obedience’, 63 Journal of Abnormal Social Psychology (1963) 371-378; Mark Osiel, Mass Atrocity, Ordinary Evil, and Hannah Arendt: Criminal Consciousness in Argentina’s Dirty War (Yale University Press, 2001); Drumbl, Atrocity, supra note 12, at 1. 63. Simpson, Law, War and Crime, supra note 61, at 75.

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people to concentration camps, Eichmann was not a leader, nor did he exhibit the mens rea for the atrocity to which he contributed.64 Crimes committed in fulfilment of such a bureaucratic role may or may not be comparable to crimes of other lesser perpetrators of mass atrocity (acts of murder or torture), but for both cases, there is a strong argument for drawing strict distinctions between these modes of contributing to atrocity and the contribution of leaders. This is not to suggest that charges of genocide or crimes against humanity should be reserved solely for the principal leader in charge, but to propose that there is a distinction to be drawn between these instigating actors and those who are typically human or ‘unexceptional political mass murderers’ whose actions are both worse than, and less heinous than, those of a domestic murderer (or even mass murderer).

4.2. Superior Orders and Command Responsibility In the previous section, I argued for more explicitly distinct charges to convey to the audience of these trials the stark differences between dissimilar criminal behaviour within the atrocity context. I have argued that restricting the charges of genocide and crimes against humanity to those who assume leadership roles aides in the maintenance of the stigma attached to the very worst perpetrators, those who actually shoulder the burden of responsibility for the atrocity context. In this section, I will argue that in the interest of clear identification and communication of wrongs committed, it is not always the case that leaders ought to carry the brunt of the responsibility, and that the doctrine of command responsibility also blurs the lines between those most responsible and those for which a lesser associated charge should attach. The vertical command arrangements of highly structured groups, while alleviating some of the burden of attempting to locate individuals in the responsible collective, cause other challenges for addressing to whom we should assign legal liability for wrongdoing. Two principles guide attribution of guilt in such hierarchies under international criminal law: the doctrine of superior orders and that of command responsibility. The latter asserts that individuals are responsible for the atrocities committed by troops under their command and is spelled out in Article 28 of the Rome Statute.65 The former, laid out in Article 33, claims that an individual cannot excuse him- or herself from liability for committing genocide, crimes against humanity or war crimes by claiming to have simply acted under orders. Although it was once assumed that subordinates ‘are not liable for the foolish or wicked commands of their supervisors, since they are not “to reason why” but just to obey,’66 this view is now not only morally problematic but also legally 64. Arendt, Eichmann in Jerusalem, supra note 39. 65. Rome Statute, supra note 4. 66. Joel Feinberg, ‘Collective Responsibility’, in Collective Responsibility: Five Decades of Debate

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inaccurate. Rather, those on the lowest rung of the criminal hierarchy, in fact, shoulder individual responsibility for the roles they play. These subordinates, lesser perpetrators, are responsible for their actions contributing to the greater harm. Some commands any reasonable person must recognize as too wicked to obey. An ordinary person, acting within a structured group, ordered to commit a terrible wrong and who obeys this order ought to be held morally and legally liable for the consequences of his or her actions. Indeed, this approach is encapsulated in the doctrine of superior orders. Specifically, Article 33 of the Rome Statute claims, ‘the fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless: (a) the person was under a legal obligation to obey orders of the Government or the superior in question; (b) the person did not know that the order was unlawful; and (c) the order was not manifestly unlawful.’67 Critiques of this doctrine point to the conditions of ‘manifestly unlawful’ orders and that the person was not under a legal obligation to obey orders. The condition of manifestly unlawful orders, controversial in that one must ask: ‘manifest to whom? A different standard may be expected, for example, of fully trained army lawyers or high-ranking officials from that of young, lowranking soldiers who are on their first tour of duty,’68 might seem to escape serious criticism since Article 33 further insists that ‘for the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.’69 Paola Gaeta argues that with ‘the absolute liability approach, according to which obedience to orders is never a defence,’ (arguably a departure from a conditional liability approach which is generally adopted by domestic legal systems), ‘the divergences in international practice are more apparent than real’ since the Rome Statute clearly lays out an exhaustive list of war crimes and ‘it would therefore appear to be impossible to claim that orders to perpetrate any of those acts are not manifestly unlawful or that subordinates could not recognize their liability.’70 Even so, there are instances when the legality of an order might be very unclear to a soldier, instances in which the soldier must trust his or her commander to make appropriate assessments on the battlefield and issue orders which do not overstep the limits of proportionality and therefore

67. 68. 69. 70.

in Theoretical and Applied Ethics in Larry May and Stacey Hoffman (Rowman and Littlefield Publishers: Savage, MD, 1991) 53-76 at 58. Rome Statute, supra note 4, at Article 33.1 and 2. Robert Cryer, Hakan Friman, Darryl Robinson and Elizabeth Wilmshurst (eds), An Introduction to International Criminal Law and Procedure (Cambridge University Press, 2007) at 350. Rome Statute, supra note 4, at Art 33. 2. Paola Gaeta, ‘The Defence of Superior Orders: The Statute of the International Criminal Court versus Customary International Law’ 10 European Journal of International Law (1999) 171-191 at 171.

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comprise a war crime. Equally problematic, the condition that the person was not under legal obligation to obey orders would seem to dismiss any possibility of charging soldiers (but not civilians) with these crimes. Although in some states the legal obligation refers only to lawful orders, under many ‘national legal systems, soldiers are duty bound to obey the orders of their superiors and cannot dispute their legality.’71 Even with these restrictions, which may indeed be necessary and fair, Article 33 reflects the changing attitude toward human rights violations and occurrences of war. Although the international community is not optimal in its prevention or interruption of campaigns of genocide and crimes against humanity, it has been able to express (although perhaps not entirely convincingly) that these crimes violate the norms of the (global) community. Therefore, individuals have an added reason to probe and to recognize the wrongness of the actions which they are commanded to perform. The doctrine of command responsibility, on the other hand, causes more serious challenges and leads to, I will argue, unfair labelling. The idea behind command responsibility is that when a person occupies a distinctive office in a social organization he is properly said to be responsible for the performance of those duties or for doing what is necessary to fulfil them. In the case of a commanding officer, his duties include maintaining control over his subordinates. Their actions are a direct reflection of his position. And so, commanders are legally responsible for the outcomes of the actions of their subordinates under international law, either because of their failure to exercise proper control or because, as May argues, in line with ICTR judgments,72 acquiescence must be inferred.73 However, it seems unreasonable, an extraordinary stretch, to attach the necessary participatory intention to commit an international crime to acquiescence or failure to maintain proper control. Fundamental to international humanitarian law is the duty of military commanders to control their troops; and it has been codified expressly as an individual duty of the military commander in Article 87 Additional Protocol I (API).74 Thus, losing proper control of one’s subordinates has become a criminal offense. Failure to take necessary and reasonable measures to prevent the criminal actions of one’s subordinates or to punish them for their actions can, under current in-

71. Ibid., at 173. 72. See: The Prosecutor v. Alfred Musema, Case No. ICTR 96-13-T, Judgement and Sentence, 27 January 2000 (Trial Chamber) (paragraphs 128-130). And The Prosecution v. Jean-Paul Akayesu, Case No. ICTR-94-4-T, Judgement and Sentence, 2 September 1998 (Trial Chamber) (paragraph 489) (visited 12 October 2009). 73. May, Crimes Against Humanity, supra note 9, at 142. 74. The Geneva Conventions of 1949, Additional Protocol 1, (8 June 1977), Article 87 sets out the duties of commanders.

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ternational law, leave commanders open to charges of genocide, crimes against humanity or war crimes. Crimes can be committed by commission and omission, and command responsibility is meant to capture crime committed by omission. The element of intent for this crime of omission is a matter of turning a blind eye, either before the commission of the crime by subordinates or afterwards in the failure to report or punish. Therefore, the element of intent is, I posit, not easily regarded as intent for the base crime itself. Intention after-the-fact, where there is failure to report or to punish, is not consistent with the intent necessary for the base crimes of crimes against humanity or war crimes, and where the base crime is genocide, the jurisprudence of the ICTY requires that the superior have knowledge of the genocidal intent of the subordinate, but not that the superior also possess such an intent.75 It seems unreasonable, then, to charge superiors with the base crime itself for after-the-fact crimes of omissions. Doing so seems to stick the commander with a conviction which does not accurately reflect his or her deeds or intentions. Crimes of omission before-the-fact, on the other hand, seem like better candidates for such charges. In such cases, the commander’s lack of control or acquiescence of bad behaviour permits the commission of the crimes. Interestingly, the requirement of a causal chain between the commander’s ineffective control and the crime may have been strengthened with the introduction of the Rome Statute, as ‘Article 28 ICC Statute requires that the crimes of the subordinates be “a result” of the superior’s “failure to exercise control properly,” i.e. that – contrary to the ICTY case law – a causal relationship must exist between the superior’s failure and the subordinate’s commission of crimes.’76 Such a prerequisite may, at least, avoid a required conversion of ‘a military commander into a quasi-policeman with a general responsibility for law and order in the zone under his command.’77 However, this causal relationship requirement may only demand that ‘the superior’s failure to exercise control properly increased the risk that the base crime was committed,’78 in which case, there is again little connection between the base crime, the actions or inactions of the commander and his or her intent in relation to the base crime. This is not to suggest that lack of action by commanders should be ignored or excused. Acquiescence in atrocity by a commander must be punishable, to be sure, but in the interest of labelling fairly, that is attaching identifiers to actions 75. Blagojevic and Jokic (IT-02-60-T), Trial Chamber, 17 January 2005, at 636 and 686. 76. Kai Ambos, ‘Joint Criminal Enterprise and Command Responsibility’, 5 Journal of International Criminal Justice (2007) 159-183 at 177. 77. Ambos, Joint Criminal Enterprise, supra note 51, at 179. 78. Volker Nerlich, ‘Superior Responsibility under Article 28 ICC Statute: For What Exactly is the Superior Held Responsible?’, 5 Journal of International Criminal Justice (2007) 665-682 at 673.

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which communicate the actual actions or harms committed by an individual, we should question whether the doctrine of command responsibility actually imparts proper condemnation of the military superior’s actions (or inactions). Subordinates gone wild demonstrate their own involvement in genocide, crimes against humanity or war crimes, but not necessarily their commanding officer’s. Some might disagree with this argument, claiming that the commanding officer chooses a course of action that results in turning a blind eye – whether by not asking for reports, not following up on reports of malfeasance, not reading reports, silently condoning certain actions without actually ordering that action – and that this action (or inaction) by the commanding officer, in turn, supports the actions of the subordinates. And so, I must clarify explicitly that the quality of involvement I am interested in is involvement demonstrating culpability for a particular international crime, for the current list of international crimes, rightly deemed particularly heinous and accompanied by a severe stigma. This stigma, I would argue, should attach to actions (and not inactions) which promote and advance the atrocity environment. Prosecution and conviction for one of the current international offenses ought to hinge on the leader acting, commanding or prompting a particular crime. The explanation related to the adoption of section 7 of Canada’s Crimes Against Humanity and War Crimes Act 2000 supports this understanding, stating that: The approach under international law, reflected in Article 28 of the Rome Statute, is to make negligent commanders and superiors directly liable for the offences committed by their subordinates. However, Bill C-19 would instead create distinct offences of breach of responsibility by commanders and superiors. This approach reflects a concern, based on Charter of Rights jurisprudence, that negligence, even criminal negligence, may not constitute a sufficient level of intent in relation to the extreme stigma attaching to a conviction for genocide, crimes against humanity, or war crimes.79

Section 7 creates a separate crime because Canada’s Charter of Rights and Freedoms does not permit criminal charges for serious crimes under a ‘should have known’ mental standard. Thus the solution, so as not to run afoul of Charter jurisprudence, was to adopt a stand-alone crime. This approach has been criticized by, among others, Amnesty International and, until recently, was rejected by the international tribunals for the former Yugoslavia and Rwanda. However, recently, the Oric Trial Chamber judgment of the ICTY interpreted command responsibility along the lines of the Crimes Against Humanity and War Crimes Act.80 The ICTY version, though, could be interpreted by some to imply that command responsibility is a separate crime 79. Canadian Bill C-19 2000, Art. 3. 80. Prosecutor v. Oric ICTY Case No. IT-03-68 2006.

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of the same seriousness as genocide, crimes against humanity and war crimes. Still, it permits the distinction to be drawn, between charges of genocide and charges of command responsibility for genocide (which imply acquiescence and not orders – omission and not commission), and so, the stigma attached to the most heinous international crimes remains associated with those that demonstrate ‘the worst of the worst’. 81 The acquiescence in ongoing wrongdoing requires a criminal charge of its own. If the commanding officer does not make a reasonable effort to command in such a way as to prevent crimes, and it can properly be said that he does have control over his subordinates, then it must be believed that he is, in fact, prompting the criminal behaviour of his soldiers. This is the way command responsibility is most often understood through ICTY and ICTR case-law, but the charges laid according to this understanding of the doctrine of command responsibility are charges that imply commission: the superior is responsible for crimes committed by his subordinates. The argument this paper promotes is one that demands a strong distinction be drawn in the charges to reflect crimes of omission and crimes of commission. Of course, this understanding of responsibility, directly connecting particular responsibility to actions, makes it more difficult to connect leaders, those who most likely bear the most individual responsibility for these crimes, to the crimes. Even though leaders may appear to have clean hands, they are responsible for the international crimes they coordinate. Leaders who acquiesce to atrocity committed by their subordinates are also guilty, but in a notably different way. Throughout this paper we have ignored the practical concerns of understanding only explicitly instigated and commanded crime as satisfying the high standard set for the prosecution of international crime in order to grasp the rationale behind the strict domain. However, connecting individual responsibility to these collective enterprises is a real problem. A serious concern is how to prove the orders or prompting by leaders to commit these crimes in order to satisfy this threshold for international prosecution for the most grievous of offenses. An historic and well-known example of this difficulty is the court martial of Lt. William Calley (U.S. Army) in connection with the My Lai incident (Vietnam 1968). Calley, leader of the first platoon of ‘C’ Company under the command of Captain Ernest Medina, was charged and found guilty of premeditated murder on 81. On July 3, 2008, the Appeals Chamber upheld Oric’s appeal and found that his conviction was not properly founded within the doctrine of command responsibility and that the Trial Chamber failed to make all of the findings necessary to convict a person for command responsibility under the Article 7(3) of the Tribunal’s Statute. This decisions demands even more proof of commission for a conviction, claiming that ‘proof that crimes have occurred is not sufficient to sustain a conviction of an individual for these crimes.’ United Nations, International Tribunal for the former Yugoslavia, ‘Case Information Sheet, Naser Oric (IT03-68)’ (visited 12 October 2009) at 8.

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all specifications for his involvement and leadership in a four hour long massacre executed by ‘C’ Company that resulted in approximately 500 Vietnamese civilians dead.82 No other perpetrators of this atrocity were convicted of any crime, although Calley was not the only one prosecuted. To be sure, Calley was guilty of his crimes: the prosecution proved that he callously shot innocent non-combatants and that he commanded his subordinates to do likewise and they did so.83 The problem with this case is that Calley was not the only one responsible for this atrocity. His subordinates should have known, and did know (as is evident from their testimony at Calley’s trial), that following these particular orders from Calley was wrong and they should have been held accountable for their own actions and the consequences of them. More to the point, though, is the responsibility of Captain Medina.84 It is unclear whether he, in his capacity as leader, ordered or instigated this criminal endeavour. Medina faced charges of murdering 102 Vietnamese civilians based on the prosecution’s theory of command responsibility.85 Medina, the prosecution contended, as the officer in charge of “C” Company, should be held accountable for the actions of his men. According to this argument, if Medina knew that a massacre was in progress and did nothing to end it, he should be found guilty for the massacre.86 Now, I have already argued that, in the interest of fair labeling, to be convicted of one of the current international crimes, a leader must be found to have ordered or instigated the criminal behaviour of his subordinates, and of this too Medina has been accused. Calley’s defense was based partly on the claim that he had been following the explicit orders of Medina to kill civilians found at My Lai. Amidst different recollections of events, especially if orders were intentionally vague, it can be difficult to concretely prove that specific orders or encouragement were given. Physical evidence, such as written orders, is unlikely. Therefore, attempting to hold individual leaders criminally liable for the atrocities committed by their subordinates based on commands or prompting produces some procedural problems. This being said, it is not always the case that linking leaders to orders or policy is very difficult. Nazi Germany kept meticulous records; Rwandan instigators were similarly unguarded in many ways;87 it is also argued that it would not be difficult to link those leaders most responsible to the torture 82. United States v Calley 46 CMR 1131, 1184 (ACMR 1973). 83. Douglas Linder, ‘An Introduction to the My Lai Courts-Martial’, My Lai: An Account (visited 10 December 2009). 84. United States v Ernest L. Medina (1971). 85. A discussion of the prosecutor’s position regarding command responsibility can be found in the Prosecution Brief on the Law of Principles in United States v. Captain Ernest L. Medina. (visited 15 December 2009). 86. In the end, Medina was acquitted for responsibility for the My Lai Massacre of 1968. 87. Gregory H. Stanton, ‘Could the Rwandan Genocide have been Prevented?’, 6 Journal of Genocide Research (2004) 211-228.

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and mistreatment of detainees in U.S. counter-terrorism operations.88 A consistent theme which threads through this paper, though, is that of a strict burden of proof on the prosecutor for a conviction for the most heinous of crimes to be achieved. This strict burden does generate practical difficulties, but the retention of the expressive significance of a charge and conviction for an international crime such as a crime against humanity or genocide demands that these convictions attach to the worst of the worst. As I suggested earlier, individuals must be held accountable for their contribution to the greater harm. Instigators hold the bulk of the responsibility. Lesser perpetrators, it would seem, despite their horrendous actions, are also victims of circumstances. Their actions are both more heinous because of their role in the greater evil and less blameworthy because of the context in which they were committed. International crimes are the most heinous of crimes and the expressive power of labelling a criminal action a crime against humanity or genocide must be protected by assuring that only the very worst perpetrators with the requisite general intent for the base atrocity crime are prosecuted.

5. Conclusion ICL, in its role as a response to mass atrocity, is where the individual and collective characters of certain actions intersect. And, an extended list of offenses of international criminal codes, especially the Rome Statute of the ICC, would better reflect what it means for these actions to contribute to and be shaped by the collective atrocity environment. This paper has argued for a need to revisit the current offenses available to international judicial institutions for post-atrocity response. It has suggested that the current limited list is too restricted and therefore leads to confusion and miscommunication about what conviction for these crimes actually represents. It is not advocating additional criminal behaviour be included in the list, but that the list be separated out to more plainly account for the different criminal actors and their crimes. It has argued that there is a distinction to be drawn between leaders and lesser perpetrators and that the offenses should reflect this. It has also argued that the most severe labels (and the stigma attached to them) should be reserved for leaders who bear the bulk of the responsibility; lesser perpetrators are victims, as well as executors, of unusual and horrendous circumstances. The actions of lesser perpetrators are both simultaneously more heinous because of their role in the greater evil and less blameworthy than similar domestic crimes because of the context in which they were committed. 88. Carolyn Patty Blum, Lisa Magarrell, Marieke Wierda. ‘Criminal Justice for Criminal Policy: Prosecuting Abuses of Detainees in U.S. Counter-terrorism Operations’, ICTJ Policy Paper, November (2009) at 4.

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A possible critique of this proposal is that in incorporating new criminal charges, identified by distinct names, ICL runs the risk of confusion on the other end of the spectrum. Possibly, too many offenses with which contributors to atrocity contexts could be charged would leave the audience of criminal trials pondering the domain of ICL and whether it is overextending itself to include too many acts (which would be an incorrect perception, as the behaviour within the ICL jurisdiction would remain constant, but might be a perception harmful to the project of ICL), or cause uncertainty about how each crime actually factors into the greater atrocity. As it is, the Rome Statute seems very simple and clear; without much work, training or research, an average person can conjure up some impression of what it means to have committed genocide, a crime against humanity or a war crime, although he or she might invoke any number of images of a multitude of actions and actors, leaders or lesser perpetrators. However, simplicity should not override accuracy in communication, especially when the stigma attached to the conviction of certain crimes does in fact carry with it a powerful message of condemnation. I have also suggested that crimes charged under command responsibility ought also to be separated out of the list of current offenses. Doing so would avoid unfair labeling. The intention with this paper is to offer an approach to better elucidate the criminal behaviour prosecuted under international judicial processes. The message conveyed by particular convictions, then, would be clearer and would save the stigma attached to specific convictions for those who truly deserve to be regarded as having committed the most depraved abuses of political organization and demand the worst international censure.

Systemic Integration, Legal Theory and the International Law Commission Jörg Kammerhofer* ABSTRACT: The International Law Commission spent four years considering the problems associated with the fragmentation of international law. Unfortunately, it chose to remain on the pragmatic level. This paper gives an example where the Final Report would have had to delve into theory and where it would have had to question common assumptions, but where it did not go far enough. It will also try to flesh out some of the consequences of merely accepting existing doctrines. The example used here is the principle of systemic or systematic integration, which raises a plethora of theoretical problems and touches upon the very basis of the constitution of international law. The present article is an attempt to analyse the methodology of the Study Group in the structure of its argument without relying on orthodox deference to commonly accepted doctrines. This is a positivist-normativist’s deconstruction as well as a reconstruction of the merits of this claim. The aim is to reconstruct the foundation, the operation and the consequences that can follow from systemic integration on the basis of a strict adherence to positive law. KEYWORDS: International Law Commission, systemic integration, Vienna Convention on the Law of Treaties, international legal theory, fragmentation

1. International Legal Theory at the Shores of Lake Geneva The International Law Commission (ILC) spent four years (2002–2006) considering the problems associated with the fragmentation of international law. Stemming from an initiative by Gerhard Hafner in 2000,1 the Commission took up the topic two years later by establishing a study group, then chaired by Bruno Simma. Martti Koskenniemi took over a year later and under his chairmanship * 1.

Research Fellow at the Hans Kelsen Research Group, University of Erlangen-Nuremberg. Gerhard Hafner, ‘Risks Ensuing from Fragmentation of International Law’, in International Law Commission, Report on the work of its fifty-second session (1 May–9 June and 10 July–18 August 2000), UN Doc. A/58/10, in Yearbook of the International Law Commission 2000, Volume II (2) 143–150.

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the project entered its ‘operative phase’. It was brought to a conclusion at the ILC’s 58th session in 2006 with a chapter in the Commission’s report to the General Assembly.2 The members of the Study Group delivered research papers of varying length on several topics identified as meriting attention.3 From 2005 to 2006, the chairman collated and expanded the amorphous mass of papers into a coherent Final Report, a 256 page paper meant to exhaustively discuss the topics that the Commission had identified.4 The ‘executive summary’ of that report, a slim 27 page compromise, was then attached by the Commission to its report to the General Assembly on the 58th session. By attaching only a summary, the ILC membership – disconcerted perhaps by the theoretical depths that a discussion of the causes of fragmentation might lead to – managed to distil the study group’s work into a format more convenient for practical use by state and international bureaucracies. Both the chapter in the report to the General Assembly and the Final Report provide a tool-box of techniques for dealing with fragmentation. This may have been meant to gain the maximum practical benefit from a topic considered ‘difficult’ and untypical for the ILC, by reassuring ‘end-users’ that orthodox international legal doctrines suffice to deal with inconvenient symptoms of fragmentation. The Final Report is in the public domain and it will be studied by academia in the years and decades to come. The breadth and scope of the study group’s work is amazing and there is no doubt that it presents a wide-ranging and dogmatically thorough treatise on several key aspects and problems of international law. However, fragmentation is an inherently and profoundly theoretical topic. In order for the ILC to fulfil its function as a scholarly organ of the UN – one composed of experts in international law to discuss international law – taking up a theoretical 2. 3.

4.

International Law Commission, Report on the work of its fifty-eighth session (1 May to 9 June and 3 July to 11 August 2006), UN Doc. A/61/10 (2006) 400–423. International Law Commission, Report on the work of its fifty-fourth session (29 April–7 June and 22 July–16 August 2002), UN Doc. A/57/10, 241 (2002), at para 512: ‘(a) The function and scope of the lex specialis rule and the question of “self-contained regimes”; (b) The interpretation of treaties in the light of “any relevant rules of international law applicable in the relations between the parties” (article 31 (3) (c) of the Vienna Convention on the Law of Treaties), in the context of general developments in international law and concerns of the international community; (c) The application of successive treaties relating to the same subject matter (article 30 of the Vienna Convention on the Law of Treaties); (d) The modification of multilateral treaties between certain of the parties only (article 41 of the Vienna Convention on the Law of Treaties); (e) Hierarchy in international law: jus cogens, obligations erga omnes, Article 103 of the Charter of the United Nations, as conflict rules.’ Martti Koskenniemi, ‘Fragmentation of International law: Difficulties Arising from the Diversification and Expansion of International law. Report of the study group of the International Law Commission’, in International Law Commission, Documents of its fifty-eighth session, UN Doc. A/CN.4/L.682 (2006) also published (Erik Castrén Research Reports 21/2007: Helsinki, 2007) – hereafter cited as: ‘Final Report’.

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topic would have required examining its theoretical bases. Unfortunately, the ILC chose to remain on the pragmatic level. If academic scholarship’s critical function had been exercised, the Commission would not have been able to avoid saying things that could be disconcerting to practitioners seeking guidance. The approach chosen was indeed able to reassure that group. Fragmentation, however, cannot be approached like a run-of-the-mill codification topic. The debates on the codification of the law of treaties in the late 1960s – and the renewed emphasis placed on the Vienna Convention on the Law of Treaties 1969 (VCLT) in the Final Report – show how theoretical even ostensibly ‘technical’ topics of international law can get. The Study Group should have questioned the basis or foundation of received and accepted doctrines like ius cogens in order to correctly analyse problems associated with the fragmentation of international law. Merely scratching an itch will neither tell us why it itches nor how we can treat it. This paper provides examples where the Final Report would have had to delve into theory and where it would have had to question common assumptions, but where it did not go far enough. It will also try to flesh out some of the consequences (or inconsistencies) of merely accepting existing doctrines. This format is not adequate if one wanted to lay down an alternative version of the Final Report based on a different ethos of scholarship. But it shows the possible and real consequences of analysing the chain of theoretical assumptions of our orthodox doctrines. The example used here is the so-called principle of systemic or systematic integration. The name has recently been given to the rule of interpretation in Article 31(3)(c) of the VCLT by certain strands of international legal scholarship. By picking up on international tribunal practice that has resurrected the clause from its clinical death5 – most notably the ICJ’s offensive use of the concept in the merits judgment in Oil Platforms (2003)6 – scholars have sought to demonstrate that systemic integration is a powerful tool in the international lawyer’s arsenal. Starting with Philipe Sands’ 1998 paper7 and Campbell McLachlan’s ground-

5.

6. 7.

E.g. Dispute Concerning Access to Information Under Article 9 of the OSPAR Convention, Final Award (Ireland v. United Kingdom), Permanent Court of Arbitration, Decision of 2 July 2003, 23 RIAA (2006) at 59; Golder v. United Kingdom, Judgment of 21 February 1975, ECHR Series A (1975), No. 18; Loizidou v. Turkey, Merits, Judgment of 18 December 1996, ECHR (1996-VI) 2216; Al-Adsani v. United Kingdom, Judgment of 21 November 2001, ECHR (2001-XI) at 79; Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, adopted 12 October 1998; Panel Report, EC – Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291–293/R, adopted 7 February 2006. Oil Platforms (Islamic Republic of Iran v. United States of America), Merits, Judgment of 6 November 2003, ICJ Reports (2003) 161, at 181–182, paras 40–41. Philipe Sands, ‘Treaty, Custom and the Cross-Fertilization of International Law’, 1 Yale Human Rights & Development Law Journal (1998) 85–105.

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breaking 2005 International and Comparative Law Quarterly article,8 the trend has been to widen the use of Article 31(3)(c) of the VCLT to the point where it has become an important method to avoid the negative effects of the muchlamented fragmentation of international law and to limit the potential risk of norms, ‘regimes’ or tribunals entering into conflict with each other.9 This trend was picked up enthusiastically by the Study Group and given a prominent place in the Final Report. For our purposes, the ‘systemic integration doctrine’ seems ideal. Taking the discussion in Chapter F of the Final Report on the principle of systemic integration as an example10 raises a plethora of theoretical problems and in effect touches upon the very basis of the constitution of international law. The treatment of this issue is – as are all sections of the Final Report – both an impressive account of international legal scholarship, whose inherent value cannot be doubted, and typical of theory-phobic traditional approaches to international legal scholarship. This ‘shying away’ from theory is what will be portrayed and analysed in this paper. One could compare the Final Report’s quick succession of apodictic and only implicitly theoretical statements to a person running on quicksand to avoid sinking in because the runner has no firm ground under his feet. The present article, then, is an attempt to analyse the methodology of the Study Group in the structure of its argument. It is also an attempt to probe the foundations of the doctrine of systemic integration without relying on orthodox deference to commonly accepted doctrines. This is a positivist-normativist’s deconstruction as well as a reconstruction of the merits of this claim. The aim is to test whether positive law actually has the content and consequences attributed to it by scholarship. It reconstructs the foundation, the operation and the consequences that can follow from systemic integration on the basis of a strict adherence to positive law.

8.

Campbell McLachlan, ‘The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention’, 54 International and Comparative Law Quarterly (2005) 279–320. 9. See also: Freya Baetens, ‘Muddling the Waters of Treaty Interpretation? Relevant Rules of International Law in the MOX Plant OSPAR Arbitration and EC–Biotech case’, 77 Nordic Journal of International Law (2008) 197–216; Duncan French, ‘Treaty Interpretation and the Incorporation of Extraneous Rules’, 55 International and Comparative Law Quarterly (2006) 281–314; Campbell McLachlan, ‘Investment Treaties and General International Law’, 57 International and Comparative Law Quarterly (2008) 361–401; Nele Matz-Lück, ‘Harmonization, Systemic Integration, and “Mutual Supportiveness” as Conflict-Solution Techniques’, 17 Finnish Yearbook of International Law 2006 (2008) 39–53; Benn MacGrady, ‘Fragmentation of International Law or “Systemic Integration” of Treaty Regimes: EC–Biotech Products and the Proper Interpretation of Article 31(3)(c) of the Vienna Convention on the Law of Treaties’, 42 Journal of World Trade (2008) 589–618. 10. Final Report, supra note 4, at 206–243, paras 410–480.

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2. Systemic Integration in the ILC Report The Final Report starts its deliberation by reiterating that it has already established in previous chapters that the legal techniques of lex specialis, lex posterior and lex superior are ‘perfectly capable of resolving normative conflicts or overlaps by putting the rules and principles in a determinate relationship with each other’.11 These relationships are not seen as fixed, but as dependent on context. The Final Report argues that the ‘relevant aspects of the case’ determine which techniques should be used.12 It also reiterates its claim that conflicts of norms in international law nowadays tend not to be solved by ‘invalidating the norm that will be set aside’, but by using, on the one hand, harmonisation of competing norms through interpretation and, on the other hand, by a preference for the ‘priority’ of norms vis-à-vis others (rather than by questioning their validity).13 It also argues that conflict-resolution and interpretation cannot be distinguished; ‘Whether there is a conflict and what can be done with prima facie conflicts depends on the way the relevant rules are interpreted.’14 Article 31(3)(c) of the VCLT is seen as the expression of the systematic nature of international law.15 As the Report argues, systemic interpretation allows rules ‘to appear as parts of some coherent and meaningful whole’16 in a broad sense. McLachlan explains further: The foundation of [the principle of systemic integration] is that treaties are themselves creatures of international law. … [T]hey are predicated for their existence and operation on being part of the international law system. As such they must be ‘applied and interpreted against background of general principles of international law’ … [The principle] flows … inevitably from the nature of a treaty as an agreement ‘governed by international law’ …17

The Study Group uses the same argument: All treaty provisions receive their force and validity from general law, and set up rights and obligations that exist alongside rights and obligations established by other treaty provisions and rules of customary international law. … The question of their relationship can only be approached through a process of reasoning that makes them appear as parts of some coherent and meaningful whole.18

11. 12. 13. 14. 15. 16. 17. 18.

Final Report, supra note 4, at 207, para 410. Ibid., at 206–207, para 410. Ibid., at 207, para 411. Ibid., at 207, para 412. Ibid., at 23, para 33. Ibid., at 208, para 414. McLachlan, ‘The principle’, supra note 8, at 280. Final Report, supra note 4, at 208, para 414.

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The key point is that international legal scholarship is firm in its opinion (and this is mirrored in the Final Report) that what is called ‘the normative environment’ cannot be ignored and must be taken into account in the process of interpretation19 in order to mould international law into some sort of coherence, to give it a unity of purpose and to impart sense and meaningfulness in the totality of positive regulation. ‘By making sure that the outcome is linked to the legal environment, and that adjoining rules are considered … any decision also articulates the legal-institutional environment in view of substantive preferences, distributionary choices and political objectives.’20 This is an extensive reading of seeing law as a system21 rather than a motley collection of rules. In effect, the Final Report does provide a theoretical basis for systemic integration, but remains vague in doing so. Most importantly, the legal effects that supposedly follow from the systematic nature of international law are simply assumed to exist, not proven. Postulating a principle does not mean proving it. Proving a general norm does not entail proving the legal consequences that follow from it. An example may make this point clearer. Assume that under a municipal statute citizens have a right to good roads. This does not mean that citizens may force workers to improve roads at gunpoint, because proving that the right to good roads is valid does not entail proving a right to enforce this right. A closer reading of the limits of positive international law would have been beneficial, especially in an ILC study that purports to provide legal practitioners with a tool-box for their daily work. Collating the evidence for the way in which a tool is actually used is no small achievement in itself, but a more central question would have been whether the tool is available at all; whether (keeping in line with the tool-box metaphor) the hammer’s handle is made of hickory wood or of foam rubber; whether we might not discover upon checking that the tool-box does not contain a hammer in the first place, but that we have used a wrench to hammer in our nails all along. Returning to international law, what is missing from paragraphs 410–480 of the Final Report is a critical examination of the positive legal basis of systemic integration, of its theoretical basis and of what systemic integration can achieve in legal-theoretical terms. An example of this lack of emphasis on critical evaluation can readily be found in Chapter F. The Final Report makes an empirically correct observation: No tribunal will ask for evidence for the rule of ‘audiatur et altera pars’ or put to question the nature of a United Nations Member as a ‘State’. These matters are taken as given and if a party challenges the relevance of any such

19. Final Report, supra note 4, at 211, para 419. 20. Ibid., at 244, para 480. 21. Baetens, ‘Muddling’, supra note 9, at 197.

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procedural standard or public law status, then it is up to that party to justify its (unorthodox) case.22

The question for the Study Group should not have been whether these features are in fact taken as ‘background’ or whether a party arguing against these assumptions does in fact face an uphill battle, but what the theoretical or positive-legal basis for this background is. The Final Report is not a piece of advocacy before an international tribunal where arguing against orthodoxy would be unwise, but a study on the principle of systemic integration. As such, it would have been better to ask the question of what ‘the background’ is, where it can be found and what the background can do. The late Tom Franck’s ‘but of course test’ – ‘the common sense of the interpretative community’23 whereby agreeing on a notion is a decisive argument – should not be adopted, because general acceptance and lack of critique among orthodox lawyers do not provide a sufficient argumentative basis.

3. Re-thinking Systemic Integration: A Legal-Theoretical Critique The approach that is best suited for an in-depth analysis of the legal and theoretical issues surrounding the doctrine of systemic integration could be described (with a pinch of salt) as ‘legal common sense’. It is proposed, on the one hand, to focus on and study positive international law in force to identify the problems of and solutions to fragmentation. On the other hand, the views of traditional dogmatic scholarship on how law works should not necessarily be taken at face value either. This applies even more forcefully to emerging trends in scholarship, as examined here. The common sense approach can be argued to correspond to the Pure Theory of Law, which seeks to combine positivist faithfulness to the law in force with a mildly iconoclastic streak of seeking to restrict legal reasoning to legal arguments, i.e. to ‘cleanse’ legal scholarship from external (non-legal) elements.

3.1. The Principle of Systemic Integration in Treaties or in Customary Law The Final Report’s argument on the doctrine of systemic integration is largely devoted to an interpretation of the specific terms of Article 31(3)(c) of the VCLT.24 The discussion on what the phrase ‘the parties’ in Article 31(3)(c) means is in22. Final Report, supra note 4, at 209, para 414. 23. Thomas M. Franck, ‘Non-Treaty Law-Making: When, Where and How?’, in Rüdiger Wolfrum, Volker Röben (eds), Developments of International Law in Treaty Making (Springer: Berlin, 2005) 417–435 at 423; See Final Report, supra note 4, at 235–236, para 468. 24. Subsection 2 of Chapter F is entitled ‘Article 31 (3) (c) of the VCLT’, its first subdivision ‘construction’.

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dicative, because this is a matter of interpretation of the treaty provision, not a question of the principle itself. This is the case in particular if systemic integration were indeed an inevitable part of the very idea of treaty law. Hence, the first task of a legal analysis of the doctrine must consist in identifying what this inclusion in the Vienna Convention means for international law. Only where the Convention applies can we speak of any need to discuss the specific terms (words) of Article 31(3)(c) of the VCLT. The Convention is limited in its applicability. It applies only to treaties concluded after its entry into force (27 January 1980) and only to its states parties. The bilateralisation of treaty relations affected by the Vienna Convention in the sphere of reservations is applicable in this question as well. A multilateral treaty between VCLT member states and non-members concluded after the VCLT’s entry into force is not governed fully by the VCLT. Hence, the Vienna Convention – and, with it, Article 31(3)(c) – may apply ‘to a multilateral treaty’, but not to specific bilateral relationships within the treaty. Matters are thus a good deal more complicated than they seem at first glance. Another complicating factor is the hierarchical position of the VCLT to the treaties under it. Only if Article 1 and the enunciation of the maxim pacta sunt servanda in Article 26 mean that treaties falling under the VCLT actually derive their validity from the Vienna Convention (which was probably not intended by Articles 1 and 26) would the VCLT be a meta-law on treaty making. Only then is this law on treaties – the rules on interpretation included – in principle capable of a hierarchically higher position vis-à-vis the covered treaties. This point has further consequences, discussed in Section 3.5.2. Hence, even for VCLT-covered treaties the situation is difficult, but the Study Group realises this and is ready to give a supplementary argument. It argues that Articles 31–32 of the VCLT are ‘widely assumed to reflect customary international law’,25 a sentiment informed by the ICJ’s jurisprudence constante on this point.26 There are several theoretical problems with assuming that the principle of systemic integration is a customary international law norm: (a) Customary law is a primitive form of regulation not used by its creators with a specific goal in mind; these unwritten norms are not verbalised as such. Customary law is based on usage (behavioural regularities – customs). Customary norms receive their content from the repetition of similar behaviour. For customary international law, this means that state practice (e.g. the regular passage of ships through straits) becomes the norm’s content and the opinio iuris delivers 25. Final Report, supra note 4, at 215, para 427. 26. For an analysis of the Court’s jurisprudence see: Santiago Torres Bernárdez, ‘Interpretation of Treaties by the International Court of Justice Following the Adoption of the 1969 Vienna Convention on the Law of Treaties’, in Gerhard Hafner et al. (eds), Liber amicorum Professor Ignaz Seidl-Hohenveldern – in honour of his 80th birthday (Kluwer: The Hague, 1998) 721–748.

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its normativity (that ships may pass through straits). Hence, customary norms do not prescribe certain behaviour as words, but as historically accumulated behaviour – customary international law has no text. Even if customary law were verbalised, the collection of practice transformed by opinio is not likely to result in well-turned phrase like that in Article 31(3)(c) of the VCLT. It is doubtful that the clause’s customary international law equivalent would employ exactly this turn of phrase. (b) To this writer’s knowledge, empirical research into whether state practice and opinio iuris actually support a customary international law norm of systemic integration has not yet been undertaken. The evidence adduced by traditional scholarship is exclusively composed of tribunal decisions. International courts do not conduct enough empirical research either. (c) As mentioned above, customary law, as a primitive form of regulation, depends on usage. Customary norm-making needs to refer to concrete, factual, behaviour. Hence, customary law can only have such content that can be classified as accumulated factual behaviour (ships passing through straits or states not using military force). Customary law cannot refer to the ideal level, i.e. to other norms. In particular, ‘interpretation’ or ‘incorporation’ cannot form a pattern of factual behaviour in the real world. Hence, it is impossible for a truly customary law of systemic integration to exist (Section 3.5.2).

3.2. What is Interpretation? In the previous section we have found that it is in principle possible for systematic integration to be applicable as a norm of international law. But before we proceed, we need to clarify what interpretation is, what a ‘rule of interpretation’ is and what its relationship is to the hermeneutic process.27 In a nutshell, interpretation is the cognition of legal norms. Legal norms need to be cognised in order to be understood by humans. Humans, whether legal professionals or individuals in an organ, start a process of interpretation as soon as they look at a legal text, irrespective of whether they succeed in the process or not. Interpretation necessarily takes place, however clear the words may sound to us, because they only sound clear to us as a result of interpretation. Interpretation is also intimately connected with the dynamic operation of the hierarchy of legal norms – the ‘concretisation’ of law through its application.28 In treaties, the text is the norm and all texts are subject to the inherent vague-

27. The term ‘hermeneutic’ is not used in this text to show adherence to a particular philosophy of language, but in its more original sense of ‘cognition of texts’. 28. Robert Walter, ‘Das Auslegungsproblem im Lichte der Reinen Rechtslehre’, in Günther Kohlmann (ed.), Festschrift für Ulrich Klug zum 70. Geburtstag (Deubner: Cologne, 1983) 187–197 at 188.

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ness of language.29 In addition, a higher-order norm cannot fully determine the content of the lower norm. For example, the legal conditions for the creation of the judgment of a criminal court, including the penal code and the penal procedural code, leave ample room for different decisions of tribunals.30 The norm is therefore merely a frame of possible meanings. In all these cases the law to be applied only provides a frame, within which there is more than one possibility of application. Any act that stays within this margin and gives the frame a possible sense is legal. … If ‘interpretation’ is to be understood as epistemic ascertainment of the meaning of the object to be interpreted, the result of a legal interpretation can only be the ascertainment of a frame (which is the law to be interpreted) and thus the cognisance of multiple possibilities [of meaning], which are possible within the frame.31

Norms do not necessarily have one right meaning and interpretation is the cognition of the frame, rather than of the ‘correct meaning’, either in the abstract or in the concrete case. In short: the norm is the frame, not one of the possible meanings. If one’s scholarly focus is on positive law, one cannot decide between multiple choices in cognising the norm. Legal positivism has the objective of portraying positive norms only. Choosing one possible meaning over others adds norms which do not belong to the normative order to be described.32 An external norm is superimposed on positive law33 by the scholar in order to make the choice. The Pure Theory of Law distinguishes sharply between the application of law and scholarly cognition of the law.34 The application of law is a decision or choice – a judgment of a criminal tribunal applies a section of the penal code 29. Hans Kelsen, Reine Rechtslehre (2nd edn, Deuticke: Vienna, 1960) at 348. (In contrast, customary norms are vague because their content is a transferral of a behavioural pattern into a norm. Customary norms are not verbal or verbalised norms.) 30. Ibid., at 347. 31. ‘Das anzuwendende Recht bildet in allen diesen Fällen nur einen Rahmen, innerhalb dessen mehrere Möglichkeiten der Anwendung gegeben sind, wobei jeder Akt rechtmäßig ist, der sich innerhalb dieses Rahmens hält, den Rahmen in irgendeinem möglichen Sinn ausfüllt. … Versteht man unter “Interpretation” die erkenntnismäßige Feststellung des Sinnes des zu interpretierenden Objektes, so kann das Ergebnis einer Rechtsinterpretation nur die Feststellung eines Rahmens sein, den das zu interpretierende Recht darstellt, und damit die Erkenntnis mehrerer Möglichkeiten, die innerhalb dieses Rahmens gegeben sind.’ Kelsen, Reine Rechtslehre, supra note 29, at 348–349 (unless otherwise noted, all translations are by the present author). 32. Adolf Julius Merkl, ‘Zum Interpretationsproblem’, 42 Zeitschrift für das Privat- und Öffentliche Recht der Gegenwart (1916) 535–556, reprinted in Hans Klecatsky, René Marcić, Herbert Schambeck (eds.), Die Wiener rechtstheoretische Schule. Ausgewählte Schriften von Hans Kelsen, Adolf Julius Merkl, Alfred Verdross (Europa: Vienna, 1968) 1059–1077 at 1063, 1069–1070. 33. Michael Thaler, Mehrdeutigkeit und juristische Auslegung (Springer: Vienna, 1982) at 159. 34. Kelsen, Reine Rechtslehre, supra note 29, at 346.

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and decides. The tribunal’s creation of the individual norm is the application of higher-level norms. It is an act of norm-creation in which the tribunal chooses one of the possible meanings of the higher-level norm. As scholarly cognition, interpretation is a quest for the ‘meaning-content’35 of the norm. The interpreter does not and cannot decide. Scholars have to stop where the norm fails to be more precise,36 because the norm is the limit of legal cognition.37

3.3. The Role and Function of a Norm on Interpretation The description of the proper role of interpretation will now be combined with the function of a rule (or norm) of interpretation. Where the doctrine of systemic integration becomes a norm, a categorically different situation applies. A norm of interpretation cannot be about interpretation properly speaking. But what about Article 31 of the VCLT? It does say in the first sentence: ‘A treaty shall be interpreted …’. Does the word ‘interpreted’ not refer to interpretation? Strictly speaking it does not and for theoretical reasons one cannot take the Vienna Convention at its word. As mentioned above, interpretation is a hermeneutic process. In contrast, norms of interpretation are not cognition of law, but acts of will purporting to modify the frame of the possible meanings of norms. Interpretation happens ‘pre-VCLT’ and is anterior to all norms, including rules of interpretation. That rules on interpretation must be interpreted as well is not an idle tautology. Where positive international law specifies different norms of interpretation, they gain relevance only as objects of cognition and are interpreted together with the norms that are to be interpreted in the first place. They in effect constitute a modification of these norms and we are faced with a norm in a narrower context. See Section 3.5.2 on how legal theory constructs this modification. A back-and-forth movement in the Study Group’s analysis of the norm of systemic integration can be detected. Systemic integration is primarily seen as a cognitive tool to interpret (cognise) one norm ‘in the light’ of others. ‘This is all that Article 31(3)(c) requires; the integration into the process of legal reasoning … of a sense of coherence and meaningfulness.’38 As explained, however, interpretation 35. Riccardo Guastini, ‘Kelsen on Legal Knowledge and Scientific Interpretation’, in Letizia Gianformaggio, Stanley L. Paulson (eds), Cognition and interpretation of law (Giappichelli: Turin, 1995) 107–115 at 108. 36. Merkl, ‘Zum Interpretationsproblem’, supra note 32, at 1067; Günther Winkler, Rechtstheorie und Erkenntnislehre. Kritische Anmerkungen zum Dilemma von Sein und Sollen in der Reinen Rechtslehre aus geistesgeschichtlicher und erkenntnistheoretischer Sicht (Springer: Vienna, 1990) at 218. 37. Walter, ‘Das Auslegungsproblem’, supra note 28, at 191; Heinz Mayer, ‘Die Interpretationstheorie der Reinen Rechtslehre’, in Robert Walter (ed.), Schwerpunkte der Reinen Rechtslehre (Vienna: Manz, 1992) 61–70 at 62 38. Final Report, supra note 4, at 211, para 419.

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properly speaking cannot be determined by norms. Yet if ‘systemic integration’ is a norm, it does influence the ‘interpreted’ norm where it applies, but not through the process of interpretation. Contrary to the Study Group’s intentions, in this case the validity of the ‘interpreted’ norm is being touched upon.39 Following a consistent analysis, a rule of systemic integration cannot do what the Study Group wants it to do: either one interprets and is free to ignore surrounding norms or one has a norm of ‘interpretation’ and has to take into account other norms, but not in a process of interpretation.

3.4. Operationalising Systemic Integration as Interpretation So far, the analysis has uncovered a number of problems with the new doctrine of systemic integration. Not only is its technical applicability not as clear-cut as the Study Group imagines it to be; the rule–interpretation and integration– interpretation connections are also problematic. The following sections will take up the theoretical issues of systemic integration and transfer them to the operational realm. Given the basic theoretical problems, what can be achieved in international law with such a doctrine? This question will be taken up in the next two sections. On the one hand, we will look at the possibility of operationalising systemic integration’s tactic of ‘taking into account’ as interpretation (cognition). On the other hand, we will look at how ‘taking into account’ works when an organ, e.g. a tribunal, applies the law (Section 3.5). Interpretation as described in Section 3.2 is a hermeneutic process which exists anterior to norms and is as such impossible to regulate. In that hermeneutic process, human beings can ‘take into account’ as many factors as they please, including those mentioned by Article 31(3)(c) of the VCLT. Yet no choice can be made between multiple possible meanings by the hermeneutic process of interpretation – it can only cognise the norm. To be operationalisable, the doctrine of systemic integration would have to reformulate ‘taking into account’ to either involve changing the interpretandum prior to interpretation or it would have to choose between multiple possible meanings based on other norms of international law. In both cases, the interpreter would go beyond cognition towards application or change. The techniques of systemic integration cannot produce the intended result if they are understood as interpretation. This is the case because interpretation cannot solve the underlying conflict of norms and cannot contribute to a ‘defragmentation’ of international law. As mentioned above (Section 2), the Study Group follows traditionalist international legal scholarship in claiming that norm-conflicts are a result of and can be avoided by interpretation.40 It could 39. Final Report, supra note 4, at 207, para 411. 40. C. Wilfred Jenks, ‘The Conflict of Law-Making Treaties’, 30 British Yearbook of International

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even be argued that conflict could only be established through the medium of interpretation, i.e. by finding meanings of norms. The Study Group hence argues ‘that, contrary to what is sometimes suggested, conflict-resolution and interpretation cannot be distinguished from each other’.41 As a result, an accumulation of norms would a priori not be seen as capable of conflict. If norms are merely a frame of possible meanings and if they may have a multitude of possible meanings, as was argued in Section 3.2, the norm cannot be any one of its meanings. Norm-conflict is one of the frame (the norm) itself, not of its possible meanings. The ontology of norms is not changed by interpretation; therefore interpretation cannot resolve norm-conflict. ‘Because interpretation of legal norms is legal cognition and because cognition of law can neither create nor invalidate legal norms, interpretation cannot solve conflicts of norms’.42 Another technique to achieve conflict-avoidance and solution through interpretation according to the Final Report is the move to turn validity into ‘priority’ and to ‘solve’ norm-conflicts through interpretation by having the norm ‘set aside’43 while retaining its validity. Interpretation makes the losing norm ‘remai[n] in the background’ still ‘providing interpretative direction’.44 The Study Group did not go further into how this is possible with respect to a positive norm of international law. A norm is the Ought-function. Thus a norm that even momentarily – even in one case – does not prescribe an Ought ceases to exist.45 Norms cannot be changed through interpretation, because norms are neither created nor destroyed by interpretation. True, in a post-Kantian world, cognition ‘creates’ the norm for the observer (as phenomenon), but on the plane of

41. 42.

43. 44. 45.

Law 1953 (1954) 401–453 at 428; Wolfram Karl, ‘Treaties, Conflicts between’ in Rudolf Bernhardt (ed.), Encyclopedia of Public International Law (4 vols, Amsterdam: Elsevier, 2000), vol. 4, 935–941 at 940; Kelsen, Reine Rechtslehre, supra note 29, at 210; Joost Pauwelyn, Conflict of Norms in International Law. How WTO law Relates to Other Rules of International Law (Cambridge University Press, 2003) at 244–274 (only as ‘conflict-avoidance technique’); Erich Vranes, ‘Lex Superior, Lex Specialis, Lex Posterior – Zur Rechtsnatur der “Konfliktlösungsregeln”’, 65 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (2005) 391–405 at 398–400. Final Report, supra note 4, at 207, para 412. ‘Da Interpretation von Rechtsnormen Rechtserkenntnis ist, Erkenntnis des Rechts aber eben so wenig wie Rechtsnormen erzeugen, d.h. in Geltung setzen, die Geltung von Rechtsnormen aufheben kann, kann Interpretation die Lösung eines Normenkonflikts nicht leisten.’ Hans Kelsen, Allgemeine Theorie der Normen (Manz: Vienna, 1979) at 179. Final Report, supra note 4, at 207, para 411. Ibid., at 56, para 102. To attempt to solve the conflict by means of a change of the sphere of application ratione materiae, personae or temporis (making it ‘inapplicable’ to a particular situation) cannot be successful either. Any change of the sphere of validity is a change of the norm (Kelsen, Allgemeine Theorie, supra note 42, at 90); a change of a norm is nothing but the derogation and re-making of a different norm. Thus the change of applicability of a norm means the end of its validity, hence of its existence in the ideal realm.

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the ideal (Oughtness), the norm is valid irrespective of cognition (as noumenon). Because norms themselves are not changed by interpretation, they are also not changed by interpreting them while ‘taking into account’ other norms. Pragmatically speaking, someone who ‘interprets away’ conflict simply ignores it in an exercise of selective cognition. The norm ‘set aside’ is set aside in the mind of the person. It is ignored while remaining valid and applicable, for validity and applicability are intimately connected.46

3.5. Operationalising Systemic Integration as Application The situation is different with tribunal judgments or other organs of international law authorised to apply the norm, i.e. to create a lower-level norm authorised by a higher-level norm. What the organ authorised to apply the law can do in case of a conflict between two general norms is only to decide – in an act of will – in favour of one or the other norms, whereas the conflict between the two general norms remains.47

There is a categorical change between a situation in which someone is ‘merely’ interpreting the law or one in which someone applies the law. As mentioned above, we are describing two different functions: on one hand, the cognition of law; on the other hand, law-making according to the rules on law-creation in the hierarchy of norms. In the application of law by a legal organ, the cognitive interpretation of the law to be applied is combined with an act of will by which the law-applying organ chooses between the possibilities shown by cognitive interpretation. … This act of will differentiates the legal interpretation by the law-applying organ from any other interpretation, especially by … legal science.48

Unlike an advisory opinion, a tribunal judgment contains a norm binding on the parties to a dispute. As such, it is not a logical deduction from the law that is applied, but an act of will that creates new law. For example, the judgment of

46. See supra note 45. 47. ‘Was aber das rechtsanwendende Organ im Fall eines Konfliktes zwischen zwei generellen Rechtsnormen tun kann, ist nur: sich in einem Willensakt für die Anwendung der einen oder der anderen der beiden Normen entscheiden, wobei aber der Konflikt zwischen den beiden generellen Rechtsnormen bestehen bleibt.’ Kelsen, Allgemeine Theorie, supra note 42, at 179. 48. ‘In der Anwendung des Rechtes durch ein Rechtsorgan verbindet sich die erkenntnismäßige Interpretation des anzuwendenden Rechtes mit einem Willensakt, in dem das rechtsanwendende Organ eine Wahl trifft zwischen den durch die erkentnismäßige Interpretation aufgezeigten Möglichkeiten. … Durch diesen Willensakt unterscheidet sich die Rechtsinterpretation durch das Rechtsorgan von jeder anderen Interpretation, insbesondere … durch die Rechtswissenschaft.’ Kelsen, Reine Rechtslehre, supra note 29, at 351.

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the ICJ in the Armed Activities case49 is as little a logical deduction from Articles 2(4) and 51 UN Charter as a criminal judgment is a deduction from the penal code. The essential element turning a judgment into a positive norm is that it claims to be obeyed, e.g. ‘the accused ought to spend six months in prison’. This is a decision, not a deduction. 3.5.1. Authentic Interpretation The operation of systemic integration – the characteristic ‘taking into account’ of other norms – as a technique of interpretation is ineffective because it concerns a choice between the possible meanings of a norm. The doctrines of ‘authentic’ or ‘authoritative’ interpretation cannot be used to support systemic integration. The terms have given rise to much confusion, because they are not about interpretation in the first place. ‘Authentic interpretation’ is the situation where the law-maker itself authoritatively ‘interprets’ its own norm by defining (through a later law) what a provision means. In contrast, the term ‘authoritative interpretation’ can be used where an organ is authorised by the law to ‘interpret’ norms. However, the interpretation of the Charter by the Security Council or by the International Court of Justice is no more authentic than that proposed by scholars. The Court and the Council are not the law-maker that is entitled to ‘authentic interpretation’ and the maxim eius est interpretare cuius condere is not in accord with the strictures of positive law. As the Permanent Court of International Justice said in Jaworzina ‘the right of giving an authoritative interpretation of a legal rule belongs solely to the person or body who has power to modify or suppress it’.50 Only by again fulfilling all conditions for law-creation laid down for the treaty in question is the ‘interpretation’ truly authentic. If it is truly authentic, however, the ‘interpretation’ ceases to be interpretation. ‘Authentic interpretation’ by the law-maker creates a further norm which relates to the cognition of the original norm, which ‘filters’ our cognition or simply modifies the original norm (Section 3.5.2). In no case can the meaning that is chosen to be integrated in an individual norm (e.g. a tribunal judgment) go beyond the individual decision. Even after the ICJ has pronounced itself on an issue – or even after the Court has developed a jurisprudence constante – all possible meanings of the norm remain open. The Court’s pronouncements may be the very best indication of what the law is, but ‘very good’ is categorically different from ‘authentic’ (Section 4.2).

49. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Merits, Judgment of 19 December 2005, ICJ Reports (2005) 168. 50. Delimitation of the Czechoslowak-Polish Frontier (Question of Jaworzina), Advisory Opinion of 6 December 1923, PCIJ Series B, No. 8 (1923) 6 at 37.

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In making the choice between the possible meanings of a norm, an organ of international law is not bound to adopt one of them. However bound it may be in light of the positive law that governs its judicial, legislative or administrative function, any organ retains an essential freedom to decide. Arguing that an organ has to take into account other norms in the interpretation of the norm is a tactic employed by scholarship to create restraints upon that organ not found in positive law, i.e. to impose subjective moral or political values upon a legal order. 3.5.2. Incorporation of External Norms A special situation arises when an organ authorised to apply the law is confronted with a ‘rule of interpretation’ of systemic integration. Such is the case when Article 31(3)(c) of the VCLT itself applies as treaty norm (Section 3.1). In this case, the word ‘interpretation’ cannot be taken at its usual meaning either. Specific legal consequences result and the provisions of Article 31(3)(c) can have some power over positive international law. But no rule of interpretation is about interpretation properly speaking, because it changes the law to be interpreted (Section 3.3). If, for example, the text of a treaty would have allowed for meanings M1, M2 or M3, whereas a hypothetical rule of interpretation has the effect of disallowing M1 and M3, interpretation is now faced with a further norm which relates to the cognition of the original norm, which ‘filters our cognition’. In effect, the original norm is modified by another norm to exclude M1 and M3. In the case of a norm of systemic interpretation the treaty is changed by incorporating external norms. ‘Incorporation’ in legal theory is a specific technique of norm-creation. It is, in effect, a short-cut to avoid unnecessary length of texts. By incorporating norms ‘X’ to ‘Z’, norm ‘A’ creates a number of substantially identical norms. Contrary to popular opinion, X to Z are now not normatively linked to A, because they cannot be. This is because the incorporated norms may very well belong to a different legal order, e.g. when a civil code incorporates norms of positive morality by prescribing that unethical treaties are void. They may also have a different origin of validity in a different respect, e.g. in our case when a norm of systemic integration integrates norms from other treaties or customary international law, which, in turn, are each based on their own acts of will creating them. In legal terms: A now contains copies of X, Y and Z and the original X to Z are not impinged, even though A only says so in linguistic short form. As mentioned above, the legal effect of incorporation is that the original norm is already created with the appendix. All treaty norms for which the Vienna Convention is applicable would thus contain all other ‘relevant’ treaty and customary norms, because in the VCLT regime treaties are subject to certain rules and are created with such an appendix. In this case, the application of the VCLT would mean that the incorporating treaty is created differently inter alia

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by having further possible meanings added. This would mean that while the organ applying a VCLT-covered treaty retains the freedom of decision in its act of will, the conditions for law-creation now incorporate the norm of systemic integration and, with it, other ‘relevant’ international law. There is thus a difference in kind between (1) orthodox scholarship’s notion of systemic integration as guiding interpretation of treaty A in light of international law norms X, Y and Z, i.e. using the external norms to throw light on the meaning of A, and (2) the consistently positivist effect of applying X to Z through the conduit of A, i.e. of incorporating X to Z in A.51 This is the result of consistency vis-à-vis the legal consequences that follow from the doctrine of systemic integration. It may safely be assumed that neither the members of the Study Group nor most scholars would support such an outcome. But this is not the end of the analysis of applying systemic integration as norm. It is to be doubted whether the result can be achieved so easily, considering that several problems make a clear-cut application difficult. Two problems were mentioned in Section 3.1 with regard to the discussion of the legal preconditions for the application of a VCLT and/or a customary norm of systemic integration. First, the VCLT was probably never intended to be the source-law for all treaties to which it applies. Equally, the re-statement of the principle of pacta sunt servanda in Article 26 of the VCLT was probably intended to serve as a reminder rather than as the legal foundation for all VCLT-covered treaties (what could be described as a ‘relative Grundnorm’). Hence, the VCLT is probably not the ‘source’ for this kind of treaty and not in a hierarchically higher position towards the covered instruments. Hence, even when Article 31(3)(c) of the VCLT is applicable to a treaty situation, the incorporation described above cannot take place because the VCLT cannot determine the creation of the incorporating treaty. Only if the VCLT is the source stricto sensu can it influence the treaty in this particular way. This argument has the potential to uproot the orthodox conception of the VCLT as law of treaties governing treaties without itself being on a hierarchically higher plane. There is one conceivable way out of this conundrum, though. We could ignore the likely intentions of the VCLT’s drafters (focus on the text as norm) and see Articles 1 and 26 of the VCLT as establishing ‘VCLT treaties’ as a subordinate source of international law. Second, if customary international law is to govern the law of treaties, customary law has to be hierarchically higher than the source ‘international treaty law’. In other words, pacta sunt servanda has to be a norm of customary international law.52 This would put in doubt orthodoxy’s claims that all sources of international 51. Richard K. Gardiner, Treaty Interpretation (Oxford University Press, 2008) at 287–289. 52. Hans Kelsen, Principles of International Law (Rinehart: New York, 1952) at 314, 417; Josef L. Kunz, ‘The ‘Vienna School’ and International Law’, 11 New York University Law Quarterly Review (1934) 370–421 at 403; Michel Virally, ‘The Sources of International Law’,

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law are hierarchically equal53 and that most customary international law is ius dispositivum that can be derogated from by inter se agreements. But, as mentioned above, if customary international law is truly based on custom, its norms cannot have complex content, in particular in relation to the empowerment to create norms (customary law cannot create subordinate normative orders – pacta sunt servanda cannot be a customary norm) and the incorporation of norms (‘systemic integration’ is not based on factual behaviour). The third problem is shared by all situations of norm-conflict. In the case discussed above – the norm of systemic integration allowing treaty norm A to incorporate X to Z – we end up with several norm-conflicts between norms of the same hierarchical level, e.g. between the external norm to be applied and the other norms of the incorporating treaty. Both contain exactly the same type of claim to be observed and it is difficult to see how an apparently higher status can come about on the merits of its content alone. The Study Group does not claim that systemic integration is a ius cogens norm, which would in orthodox legal scholarship grant it a special hierarchical position. We have simply added a new conflict of norms to the one that might exist between the two treaty norms in our case.

3.6. A Summary of the Critique We began by looking at the status of a possible norm of systemic integration in positive international law and found that Article 31(3)(c) of the VCLT could perhaps apply, but that a parallel customary norm could not apply as orthodox scholarship would like it to. Largely, this has to do with the fact that customary norms cannot be as sophisticated as scholarship makes them out to be. In a second step, the analysis shifted to outlining the proper role of interpretation as hermeneutic technique. This theoretical groundwork was applied in the third section where the notion of a rule of interpretation was criticised as contradictory. If interpretation is hermeneutic technique, it is necessarily anterior to the norms: rules of interpretation also need interpretation. Article 31(3)(c) of the VCLT thus cannot be about interpretation properly speaking. In a fourth step, we sought to look at ways of operationalising the doctrine of systemic integration as interpretation. Such a move cannot be successful, for systemic integration is not about interpretation properly speaking. Norm conflict and interpretation are separate realms. Lastly, we shifted our ground to see whether systemic integration has a role to play where organs create individual norms. After excluding the notion of ‘authentic interpretation’ as not being about interpretation but about law-change and as dependent on the law-maker, we saw in Max Sørensen (ed.), Manual of Public International Law (St. Martin’s Press: New York, 1968) 116–174 at 128; Alfred Rub, Hans Kelsens Völkerrechtslehre. Versuch einer Würdigung (Schultheiss: Zurich, 1995) at 314. 53. Final Report, supra note 4, at 47, paras 85, 207, para. 411.

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that systemic integration is a technique for incorporating external norms into the norms of a treaty. This has extreme consequences in law which were probably not intended by the drafters of the VCLT and by the scholars proposing systemic integration, but would be the only way to operationalise the doctrine for legal theory. However, the positive law in force – the strictures of the VCLT and of the nature of customary international law, as discussed in the first step –makes this option highly unlikely as well.

4. The Case-Oriented Approach to Analysis Another feature of the Study Group’s analysis is what can be called ‘case-by-casism’. This becomes evident when considering inter alia the relatively high reliance upon the various judgments and awards made by international tribunals now operating under international law. This section provides a transition from the theoretical function of systemic integration before organs of international law to the role cases play in the Final Report. The contention is that traditional international legal scholarship and the Study Group rely too much on cases, because they seek to infer normative-theoretical conclusions from the ‘accidental’ nature of dispute-settlement. The Final Report discusses fragmentation primarily in terms of the situation of judges or arbitrators when they have to decide particular cases (Section 4.1); equally, the major part of the authority for solving theoretical problems seems to come from precedents (Section 4.2).

4.1. The Focus on Dispute Settlement as the ‘True’ Problem The Final Report, like most writings on ‘fragmentation’, tends to portray the situation as it may appear to a tribunal in adjudging a dispute. We are put in the judges’ chamber; the task of deciding is shouldered by the scholar. Thus the scholar must now write the judgment, rather than seeking to analyse the law and its limits. Perhaps the following two quotations may serve as an illustration: At issue in the Southern Bluefin Tuna case was the relationship between the 1982 UNCLOS and a fisheries treaty concluded for the implementation of the former. … Although how that relationship should be conceived – where they part of … a ‘regime’ or were they not? – may remain the subject of some debate (particularly in view of the overlapping provisions on dispute-settlement), the Tribunal itself fully realized that it could not ignore the fact that the problem arose under both treaties.54 In the Oil Platforms case, for example, the Court started with an analysis of the text of article XX (1) (d) of the 1955 Treaty of Amity and proceeded from there 54. Final Report, supra note 4, at 210, para 417.

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to the intention of the parties that, again, pointed to the need to consider the state of the general law on the use of force. The starting-point is the treaty itself, with interpretation proceeding from the more concrete and obvious (dictionary, context), to the less tangible and less obvious (object and purpose, analogous treaties etc.) in order to give the text a justifiable meaning.55

This focus on ‘dispute settlement’ is less than fortunate, because the settlement of a dispute before a tribunal is relatively independent from the fragmentation of international law itself; difficult choices by a tribunal are merely a manifestation of fragmentation. They are symptoms, not its causes. The first reason is that multiple regimes may apply to a situation and that a judicial settlement will frequently apply only to one regime. Even if a WTO Panel were to find that some act is consistent with WTO law, it may still (and despite the settlement before the Dispute Settlement Body) be illegal under another treaty, e.g. on international environmental law. Other regimes remain applicable despite the panel report. Unless the other treaty itself considers a WTO panel report binding (which is unlikely), the other law neither loses its validity nor can it ‘retreat into the background’. As mentioned in Section 3.4, there simply is no way for a norm to be less than applicable without losing its validity. The second reason for the peripheral nature of dispute settlement is the rather random nature of tribunal jurisdiction and its lex arbitri. The applicable law is relevant only for the conditions under which a particular judgment is created and does not influence the substantive law. Thus it is quite irrelevant whether a tribunal takes other regimes or general law into account, because the settlement of a dispute is not absolute. A dispute is only ever ‘settled’ with respect to the particular dispute settlement procedure. A settlement is not an absolute decision in the sense that another suit in another forum may not be brought or that a conflict of norms has now been objectively solved. But this is not a unique feature of international law; fragmentation of dispute settlement in this sense occurs in domestic fora as well. A road traffic accident, for example, may be ‘settled’ in three fora. The parties may sue each other for damages in private law suits; criminal procedures for negligent bodily harm may be brought against a person involved, as may administrative procedures for a violation of the traffic code. No-one would even think of calling this situation a symptom of fragmentation. Who would speak of institutional fragmentation of domestic law even if the different fora were to come to differing conclusions, if the same person were found partially guilty under private law, innocent before the penal courts and slapped with a nominal fine under the traffic code? The focus on cases is mistaken for yet another reason, because the problems that tribunals face only coincidentally concern fragmentation or norm-conflict. 55. Final Report, supra note 4, at 234, para 464.

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The element of decision in creating a norm is relatively free and a practical result of this theoretical insight is that within the frame of possible meanings an arbitrator is not bound by law. Elements of cognition are negligible in tribunal decisions; other influences on arbitrators or judges – e.g. behaviour expected by one’s peers, a tradition of how ‘it has been done’ in international dispute settlement, moral or ideological considerations – are external and not legal. Thus decision-making is fundamentally different from a legal scholar’s effort to show what the positive law is on the issue.

4.2. Judgments of International Tribunals as Authority? A far more problematic feature for legal theory is the role of previous decisions as authority for traditional international legal scholarship. The immense breadth and depth of this issue allows only very cursory remarks to illustrate the problem.56 The Final Report uses precedents as authority. Previous decisions by various international tribunals are not so much used as persuasive pieces of ‘legal reasoning’, but as if the judgments (individual norms) or advisory opinions were general norms. Traditional scholarship argues that international law is not a Common Law system57 where tribunal decisions are general norms that also have a stare decisis effect, and Article 59 of the ICJ Statute is regularly cited to that effect. Yet, despite these vigorous denials, the same people then use jurisprudence as precedents properly speaking, i.e. as general law.58 Even when the Study Group discusses the nature of Article 31(3)(c) of the VCLT, cases are used as precedents (as authority) for the use of that clause. The Final Report concludes its review of tribunal decisions in Chapter F by referring to the ‘enormous amount of materials’ – referring here to the many cases cited59 – that ‘support the applicability of general international law in order to interpret any particular legal relationship’.60 A specific legal basis for treating tribunal decisions as authority for general norms is not provided, but one could imagine four possible avenues. First, judgments could be considered to contain very persuasive arguments, but then their authority would be no different than utterances of highly respected scholars (which is supported by a reading of Article 38(1)(d) of the ICJ Statute). Second, they could be seen as general norms, but, again, it is difficult to imagine judgments being made generally binding by international law. Article 59 of the ICJ

56. Jörg Kammerhofer, ‘The Binding Nature of Provisional Measures of the International Court of Justice: The ‘Settlement’ of the Issue in the LaGrand Case’, 16 Leiden Journal of International Law (2003) 67–83 at 77–78. 57. John Collier, Vaughan Lowe, The Settlement of Disputes in International Law: Institutions and Procedures (Oxford University Press, 1999) at 174. 58. Mohamed Shahabuddeen, Precedent in the World Court (Grotius: Cambridge, 1996). 59. See also: Final Report, supra note 4, at 209–210, paras 415–417; at 231, para. 458. 60. Ibid., at 232, para. 460.

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Statute certainly tells a different story.61 Third, they could either be opinio iuris or ‘judicial’ practice, but this seems unlikely, since states are still considered to be the makers of customary international law. Fourth, international tribunals are considered as producing evidence for the presence of the elements of customary international law-making. However, the nature of judgments as acts of will (rather than exercises of scholarly cognition), and the rather cursory nature of empirical research in most judgements whether in a given case there is enough state practice and opinio iuris means that this is a tenuous position. One need only look at the question of how the ICJ treats the evidence for the customary law norms on the prohibition of the use of force and self-defence in Nicaragua 62 to see how tenuous the ‘incidental cognition’ of the elements of customary international law by international tribunals can be. When we seek to extract insights into the state of the law from them, judgments of international tribunals will need to persuade us and cannot impose an authentic view on everyone. As a declaration of the general law they are worth only as much as the soundness of their arguments. So why, where the judgments are not convincing or clear in their reasoning, do we seek to extract reason from them? Why do we differentiate in our analyses between academe and jurisprudence? Judgments may be by nature ‘less reasonable’ in a very specific sense: their task is not to cognise the law, they decide a dispute and create an individual norm.

5. Cosmopolitan Activism and Natural Law as Origins of the Doctrine The reasons behind the development of the doctrine of systemic integration, this new trend in international legal scholarship, is perhaps best explained in terms of what its proponents want to achieve with it. On this view, it is a scholarly attempt to create unity in international law where none exists, to alleviate conflict where positive law provides no remedy. Scholars attempt to use the tools of their trade to make international law more effective than it actually is and to make the law do more than it can do. This attempt has a long tradition in international law, but a moralisation of the discipline after 1989 and the increasing popularity of international law have increased the tempo considerably. The Study Group’s approach is a mixture of the approaches of two types of postmodern international lawyers. Neither type cares dreadfully much about the strictures of positive law. The first type is the 61. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports (1996) 226, at 237, para. 18. 62. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, ICJ Reports (1986) 14, at 92–117, paras 172–225.

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orthodox generalist, the ‘diplomat’ of the international law world. Generalists form the ancien régime and are still well-represented in scholarly organisations; they also form the core membership of international organs like the ILC and the ICJ. Their main goal is to find amicable and practicable solutions to disputes in accordance with their personal cosmopolitanism or internationalism. Whenever the strict application of law would not lead to the desired outcome, however, positive law gets fudged. The propensity of orthodox generalists is not to look too strictly at positive law in force where it does not suit their particular ends and to ‘modify’ it until it does. The other type of international lawyer can be described as political activist – they are the ‘do-gooders’ of the international law world. The propensity of political activists is to put their own politico-moral views above a strict reading of positive law in force. The trend among the former is to identify themselves so strongly with the perceived political goals of ‘their’ regime that they see the law and its means of enforcement as responding to political goals. The result is that they supplant scholarly analysis by their special interest where the outcome of the former could hurt the latter.63 The influence of both types can be detected in the Final Report, with the orthodox elements naturally outweighing the idealistic trends. Both, however, have their origin in pragmatism and in natural law. The Final Report does hide telos behind pragmatic reasoning and it shows at some points. It seems that international lawyers cannot live without natural legal ideas to ‘ameliorate’ the strictness of the law. The Final Report has included some natural legal arguments in its discussions of Article 31(3)(c) of the VCLT. Here it is really immaterial whether or not a tribunal expressly chooses to invoke article 31(3)(c). These general rules and principles are applicable as a function of their mere ‘generality’ … These are not ‘enacted’ by positive acts of States (although they may well be traceable back to State will) but parts of the general frame of international law …64

What does the phrase ‘parts of the general frame’ mean? It may be an expression of a perceived need for some elements of law or for some consequences of legal theory which cannot be found in positive international law. Without these ‘elements’, international law is perceived as not being able to function as efficiently as had been hoped. This explains the introduction of ‘necessary elements’ (e.g. of the necessity of reparations as legal consequences of unlawful acts in Chorzów)65 63. See: Jörg Kammerhofer, ‘Orthodox Generalists and Political Activists in International Legal Scholarship’, in Matthew Happold (ed.), International Law in a Multipolar World (Routledge: Abingdon, 2010, forthcoming). 64. Final Report, supra note 4, at 235–236, paras 468–469, emphasis added. 65. Ibid., at 236, para 468; Case concerning the Factory at Chorzów, Merits, Judgment of 13 September 1928, PCIJ Series A, No. 17 (1928) 4, at 29.

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without proving their validity as positive law. The introduction of ‘necessary norms’ from external sources, however, is natural legal scholarship in disguise. In summing up its conclusions on systemic integration the Final Report states: To hold those institutions as fully isolated from each other and as only paying attention to their own objectives and preferences is to think of law only as an instrument for attaining regime-objectives. But law is also about protecting rights and enforcing obligations, above all rights and obligations that have a backing in something like a general, public interest. Without the principle of ‘systemic integration’ it would be impossible to give expression to and to keep alive, any sense of the common good of humankind, not reducible to the good of any particular institution or ‘regime’.66

The ‘common good of mankind’ is not an absolute norm beyond and above positive international law and it can influence international law only to the extent that positive international law includes this value. To imagine an absolute value – whether ‘common good of mankind’ or ‘destruction of mankind’ – is to introduce an external value system whose claim to be observed (Ought) is a priori equal to the one it is ‘introduced’ into and can thus not influence the second system.

6. Conclusion In taking up the topic of ‘fragmentation of international law’, the ILC has forayed into the realm of legal theory. The questions to be discussed were the relationship of norms in a legal system and the cognition of legal norms. What came out may be reassuring, but it also shows lack of depth in dealing with these matters. The Study Group did not perform a thorough critique of received notions of international legal scholarship and it also did not criticise the new doctrine of systemic integration. Unfortunately, the report in large parts gives us deceptively easy solutions which do not get to the root of the problems it discusses. It leaves us exactly where we are, yet gives us a feeling of satisfaction. Now that the ILC has thought about it, practical international lawyers will feel empowered. While they still use the same pragmatic tools of resolution to divest themselves of difficult situations, they now do so safe in the knowledge that the ILC has made it all right to do so. The Final Report is a masterful analysis of many issues and it contains a wealth of information. On close inspection, however, it turns out not to have fully realised the potential inherent in it. Perhaps the best reading of the Study Group’s efforts is that it may have attempted to do as much as possible with the limited time it had and with a procedure that is not geared towards theoretical analysis and discussion of the structure of international law. It came out with a pragmatic 66. Final Report, supra note 4, at 244, para 480, emphasis added.

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approach to the problem of fragmentation. Yet reading the Final Report there may be a discomforting rationale hidden behind all the ‘hands-on’ arguments. It seems that there is an undertone of fatalism in a project that could be said to be doomed to failure – one that may subconsciously have led to a very subtle sabotage of the project precisely by using pragmatic language. Ironically, it may have been so subtly sabotaged that it is now unanimously considered a success.

The Crime of Terrorism and the Emerging Framework of International Criminal Law: Reflections on the ‘Hierarchy of Evil’ Marja Lehto* ABSTRACT: When adopted in 1998, the Rome Statute of the ICC closed a chapter in the decade-long debate of the hierarchy of international crimes. Since then, a new discussion has emerged concerning a possible enlargement of the category of the core crimes, involving terrorism, piracy and drug crimes. Mass-scale terrorism, in particular, presents a number of common traits with the ICC crimes, but it has so far not been recognised as a core crime. A last codification effort would be needed to settle its status – either by adopting the UN Comprehensive Convention or by extending the jurisdiction of the ICC to terrorism. KEYWORDS: international criminal law, ICC, terrorism

1. Introduction The adoption and entry into force of the Rome Statute of the International Criminal Court (ICC) has amounted to a particularly important milestone in the development of international criminal law, not least in the sense of consolidating the concept of ‘the most serious crimes of concern to the international community as a whole’, as aggression, genocide, crimes against humanity and serious war crimes are referred to in the Preamble of the Statute.1 The Elements of Crimes adopted to assist the judges in the implementation and interpretation of the definitions of crimes laid out in the Statute further systematise and circumscribe the scope of the crimes under the jurisdiction of the Court.2 Another term, that of the ‘core crimes’, is also frequently used to denote the ICC crimes. This term * 1. 2.

LL.D, M.Pol.Sc., Ambassador of Finland to Luxembourg. Rome Statute of the International Criminal Court, adopted 17 July 1998, UN Doc. A/ CONF.183/9, UNTS No. 38544, in force 1 July 2002 (ICC Statute), Preamble, para. 9. ICC Elements of Crimes ICC, UN Doc. PCNICC/2000/INF/3/Add.2, finalised in June 2000 and adopted on 1 September 2002, reproduced in Roy S. Lee (ed.), The International Criminal

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gained ground during the negotiations on the Rome Statute, apparently because of its practicality, and has continued to be used since then. It also conveys a message of the crimes in question being situated at the utmost end in the scale of gravity, or, like in Dante’s inferno, at the inner circle of hell. In less poetic terms, the concept of the core crimes refers to crimes under customary international law, which threaten the highest values of the international community.3 While the terms used above are fairly new, the ICC Statute builds on a consistent line of precedents from Nuremberg to Arusha when it comes to choosing the crimes to be internationally prosecuted. The constituent instruments of all international criminal tribunals prior to the establishment of the ICC – the Post-World War II military tribunals4 as well as the ad hoc tribunals established for the former Yugoslavia and Rwanda5 – defined the subject-matter jurisdiction of the respective institutions in an almost identical manner and encompassed a limited number of crimes.6 The International Law Commission (ILC), at various stages of its work on the Draft Code on Crimes against the Peace and Security of Mankind, had pondered upon a considerably longer list of crimes, but the emergence in the ICC negotiations of a clear focus on the ‘core crimes’ made it

3.

4.

5. 6.

Court: Elements of Crimes and Rules of Procedure and Evidence (Transnational Publishers, Inc.: Ardsley, 2001) 735–772. A particular threshold, it has been pointed out, is that these crimes threaten the fundamental values of the international community: the peace, security and well-being of the world. See for instance Morten Bergsmo, ‘Preamble, Paragraph 9: Crimes of International Concern’, in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (Nomos Verlagsgesellschaft: Baden-Baden, 1999) 14–15; Gerhard Werle, Völkerstrafrecht (Mohr Siebeck: Tübingen, 2003) at 33; Antonio Cassese, International Criminal Law (Oxford University Press, 2003) at 23–24; Astrid Reisinger Coracini, ‘“Amended Most Serious Crimes”: a New Category of Core Crimes within the Jurisdiction but out of the Reach of the International Criminal Court?’ 21 Leiden Journal of International Law (2008) 699–718 at 701–702. International Military Tribunal (the Nuremberg Tribunal, IMT) was established by the London Agreement of 8 August, 1945, UNTS 279. The Charter of the IMT is available at (visited 4 January 2010). The International Military Tribunal for the Far East was established on 19 January 1946. The IMTFE Charter is available at (visited 4 January 2010). See also the Control Council Law No. 10, done at Berlin on 20 December 1945, available at (visited 4 January 2010). International Criminal Tribunal for the Former Yugoslavia (ICTY), established by UN Doc. S/RES/827(1993); the International Criminal Tribunal for Rwanda (ICTR), established by UN Doc. S/RES/955(1994). Aggression – or ‘crimes against peace’ according to the IMT Charter – was also included in the Charter of the IMTFE. It appears under special conditions in the ICC Statute: the Court shall exercise jurisdiction over the crime of aggression once a provision defining the crime and setting out the conditions for the exercise of jurisdiction is adopted in accordance with the appropriate amendment procedures. See Rome Statute, art. 5(2). The crime of genocide was defined only after the Nuremberg and Tokyo trials, in the 1948 Genocide Convention, and was therefore not part of the Charters of the two Post-World War II Tribunals.

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change its approach rather abruptly. The final Draft Code adopted in 1996 thus encompasses only five crimes, all of which also happen to be ICC crimes: aggression, genocide, crimes against humanity, war crimes and crimes against the UN personnel, the last one figuring in the ICC Statute within the category of war crimes.7 Being a negotiated and widely ratified text, unlike the earlier codifications on the subject, the Rome Statute has closed a chapter in the decade-long debate of the hierarchy of international crimes. Since 2000, three events have nevertheless provoked a discussion of a possible enlargement of the category of the ‘core crimes’. Firstly, the terrorist attacks of September 2001 raised the question of whether large-scale terrorist crimes would warrant international prosecution and possibly fall under the jurisdiction of the ICC.8 Secondly, the pressing problem of piracy off the Somali coast has recently given rise to a discussion of where the suspected pirates should be prosecuted, also involving the ICC.9 Thirdly, the Review Conference of the ICC in 2010 has invited a number of proposals to amend the list of crimes in the Rome Statute, bearing not only on complementary provisions as regards the crime of aggression already called for in article 5 of the Statute, but also on the extension of the list of war crimes in article 8, as well as on the addition to the jurisdiction of the Court such new crimes as drug crimes and terrorism.10 While not underestimating the political difficulties related to the proposed amendments on aggression, it 7.

The General Assembly invited the ILC to elaborate a Code of Offences against the Peace and Security of Mankind in 1947, UN Doc. A/RES/177(II), 21 November 1947. The original title referring to ‘offences’ was later replaced by ‘crimes’. For the final version of the Draft Code of the Crimes against the Peace and Security of Mankind was adopted in 1996, see Report of the International Law Commission on the work of its forty-eighth session, 6 May – 26 July 1996, UN GAOR 51st session, Supplement No. 10 (A/51/10) (1996 Draft Code). See also ICC Statute, art. 8(2)(b)iii). 8. See Roberta Arnold, ‘The Prosecution of Terrorism as a Crime against Humanity’, 64 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (2004), 979–1000 and Arnold, The ICC as a New Instrument for Repressing Terrorism (Transnational Publishers: Ardsley, 2004). See also M. Cherif Bassiouni, ‘Legal Control of International Terrorism: A Policy-Oriented Assessment’, 43 Harvard International Law Journal (2002), 83–103, at 90, 101; Helen Duffy, The ‘War on Terror’and the Framework of International Law (Cambridge University Press, Cambridge, 2005), at 75 and 77–83. For a sceptical view, see William A. Schabas and Clémentine Olivier, ‘Is Terrorism a Crime against Humanity?’, in Ghislaine Doucet (ed.), Terrorism, Victims and International Criminal Responsibility (SOS Attentats, Imprimerie Floch, Mayenne, 2003) 270–276. 9. For instance, the American Society of International Law and One Earth Future Foundation organised on 16–17 October 2009 a workshop which assessed the various options to prosecute pirates, including the ICC, the International Tribunal for the Law of the Sea (ITLOS), a special tribunal and national prosecutions. 10. Amendment proposals to the Rome Statute are available at (visited 23 December 2009): Belgium (CN.733) and Mexico (CN. 725) on weapons; Liechtenstein (CN. 727) on aggression; Netherlands (CN.723) on terrorism and Trinidad and Tobago (CN. 737) on drug crimes.

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should be noted that they would continue and further consolidate the limits of the substantive jurisdiction of the Court as drawn in Rome. The same is true of the use of certain weapons as a war crime, which falls safely within the category of established ‘core crimes’. Piracy, drug crimes, and seemingly also terrorism, however, would have the capacity of questioning the very concept. This article will focus on the crime of terrorism within the framework of international criminal law. As a background, it tries to shed some light on the established hierarchy of international crimes, as well as on the essential characteristics of the core crimes as distinguished from other international crimes. It claims that terrorism is situated at the twilight zone that extends to both sides of the dividing line between ‘the most serious international crimes’ and ‘other international crimes’, due to the existence of two different traditions of addressing terrorist crimes as expressions of either state terrorism or private violence. Unlike piracy and drug crimes, terrorism cannot be excluded from the former group solely on the basis of the established parameters of the core crimes.

2. The Hierarchy of Evil – the Emerging Framework of International Criminal Law The development of international criminal law into an autonomous branch of international law is still underway.11 This is also reflected in the unsettled state of the doctrinal debate where certain terms and concepts, including the concept of international criminal law itself, are used differently from one treatise to another. Many authors argue that the term international criminal law (ICL) should only be used with regard to the core crimes and the related rules.12 Others hold that international criminal law should encompass criminalisations at both the 11. The Study Group of the International Law Commission has referred to ‘international criminal law’ as a special regime, although only in the widest sense of the term. It has also pointed out that it is typical of such broad denominations that they have ‘neither clear boundaries nor a strictly defined normative force’. See 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, The Erik Castrén Institute Research Reports 21/2007, (Hakapaino: Helsinki, 2007) at paras. 158, 84–85 and 173, 91–92. See also Werle, supra note 3, at 3. 12. So, for instance, Werle, supra note 3, who builds on the German tradition of Völkerstrafrecht has distinguished ‘international law crimes’ (Völkerrechsverbrechen) from ‘other international crimes’ (sonstige internationale Verbrechen), and limited international criminal law to the former category. For the notion of Völkerstrafrecht, see ibid., at 30: ‘Das Völkerstrafrecht umfasst alle Normen, die eine direkte Strafbarkeit nach Völkerrecht begründen’. See also Otto Triffterer, ’General Rreport, Part I: Efforts to Recognize and Codify International Crimes’, Actes du Colloque préparatoire tenu à Hammamet, Tunisie 6-8 juin 1987, 60 International Revue of Penal Law, at 42, and Kai Ambos, Der Allgemeine Teil des Völkerstrafrechts. Ansätze einer Dogmatisierung (2. Auflage, Duncker & Humblot: Berlin, 2004) at 40–41.

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international and the national levels insofar as international norms are incorporated, transposed or otherwise introduced into domestic legislation.13 While all international criminalisations can thus be included within the broader concept of international criminal law, it is most often agreed that there is a reason to draw a line between ICL sensu stricto in the sense of ‘the most serious crimes’ and ICL sensu largo which extends to a more heterogeneous field of offences set forth in international criminal law conventions.14 The emerging system of international criminal law is thus characterised by a distinction between ‘the most serious international crimes’ on the one hand and the rest of international crimes, often called ‘transnational crimes’, on the other – a ‘hierarchy of evil’ of a kind.15 The efforts to codify international criminal law sensu stricto have been closely related to international prosecution. The first wave of codifications of international criminal law sensu stricto followed the creation of the post World War II international military tribunals and included the adoption of the Genocide Convention in 1948 and the four Geneva Conventions on the protection of the victims of war in 1949.16 The codification of the Nuremberg principles by the ILC in 195017 opened the door to the ILC work on the Code of Crimes against the Peace and Security of Mankind. Both the Draft Code of Crimes and the Genocide Convention, which refers in its article 5 to an international criminal court, were initially intended to be applied by an international criminal jurisdiction. It was not, however, before the early 1990s that the armed conflicts in Yugoslavia and Rwanda gave rise to the establishment of the two international criminal tribunals by the UN Security Council. These events also influenced the decision of the UN General Assembly to return to the long-lost project of establishing a permanent 13. Immi Tallgren, A Study of the ‘International Criminal Justice System’ – What Everybody Knows? (Yliopistopaino: Helsinki, 2001) at 40. 14. Triffterer supra note 12, at 39: ‘Even though the Nuremberg definition (crimes against peace, war crimes, and crimes against humanity) are generally accepted, a strict and final limitation [of international criminal law] to these international crimes in the narrow sense is seen as neither necessary nor opportune’. 15. For the term and for a discussion of a normative hierarchy in international criminal law, see Roger S. Clark, ‘Crimes Against Humanity and the Rome Statute of the International Criminal Court’, in Mauro Politi and Giuseppe Nesi (eds), The Rome Statute of the International Criminal Court (Ashgate: Darthmouth, 2001) 75–93 at 75. 16. Geneva Convention for the Amelioration of the Conditions of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, UNTS Vol. 75, at. 31 (I Convention); Geneva Convention for the Amelioration of the Conditions of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, UNTS Vol. 75, at 85 (II Convention); Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949, UNTS Vol. 75, at 135 (III Convention); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, UNTS Vol. 75, at 287 (IV Convention). 17. The Nuremberg Principles were submitted to the UNGA in 1950, see YBILC 1950 (second session), Vol. II, at 374, and adopted by the GA on 12 December 1950, UN Doc. A/ RES/488(V).

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international criminal court and to define it as a matter of priority,18 a decision that ultimately led to the adoption of the Rome Statute in 1998. International criminal law sensu largo draws on a wide spectrum of criminal law conventions dealing with various trafficking crimes, fraud, corruption and money-laundering, and extends to the instruments designed to prevent or suppress unlawful acts, inter alia, against the safety of civil aviation, diplomatic agents, and maritime navigation. The reasons for the international criminalisation of such offences include the transnational nature of the criminal activities which affect several states and render purely national penalisations ineffective; hence the term ‘transnational crime’.19 The UN Global Report on Crime and Justice has defined the concept of transnational crime as comprising ‘criminal activities extending to, and violating the laws of several countries’.20 This category is different from both international crimes sensu stricto and crimes that are limited to one jurisdiction, and includes, according to the Report, international terrorism, as well as illegal migration, trafficking in women and children, trafficking in body parts, corruption, theft and illegal export of cultural property, computer crimes, money laundering, and trafficking in drugs and firearms.21 The offences in the category of transnational crime are defined by treaties, and while they are recognised as crimes of international concern, the relevant conventions do not attempt to create for them individual liability under international law. The criminalisations depend for their implementation on national legal systems, which may lend a specific interpretation to the international proscription. The trend with regard to this type of crime, for instance, drug offences and certain trafficking offences, is nevertheless to make the definitions of crimes increasingly detailed.22 The

18. UN Doc. A/RES/47/33 of 25 November, 1992, at para. 6. 19. Triffterer, supra note 12, at 41. 20. Global Report on Crime and Justice, published for the UNODC, Centre for International Crime Prevention (Oxford University Press, 1999) at 222. 21. Ibid., at 223. The UN Convention against Transnational Organized Crime, adopted on 15 November 2000, UN Doc. A/55/383, art. 3(2), defines the transnational nature of the criminal activities within its scope using the following criteria which are not applied cumulatively: a) the crime is committed in more than one State, b) even if the crime is committed in one State, a substantial part of its preparation, planning, direction or control takes place in another State, c) it is committed in one State but involves an organised criminal group that engages in criminal activities in more than one State, or d) it is committed in one State but has substantial effects in another State. United Nations Convention against Transnational Organized Crime, adopted on 15 November 2000, UN Doc. A/55/383, at art. 3(2). 22. Beare has drawn attention to the international influence in matters of crime control: ‘with regard to anti-terrorism enforcement, there is even stronger pressure to conform to a uniform, near-global response’, Margaret E. Beare, ‘Introduction’, in Beare (ed.), Critical Reflections on Transnational Organized Crime, Money Laundering and Corruption (University of Toronto Press: Toronto, 2003) xi–xxix at xviii.

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‘transnational crimes’ are sometimes called ‘treaty crimes’ as distinct from crimes established under customary international law. Boister has suggested that international criminalisations of this type – issuespecific ‘suppression conventions’ that create particular ‘prohibition regimes’ – form a particular regulatory framework that can be distinguished from international criminal law as ‘transnational criminal law’ (TCL). This new denomination would be based on the common features of the transnational conventions: the indirect system of enforcement through national judicial systems, the limited scope of extra-territorial jurisdiction (quasi- or subsidiary universality) and the difference between the values and interests protected by ‘international’ criminalisations, on the one hand, and ‘transnational’ criminalisations, on the other. 23 What Boister has proposed would be a major step forward in consolidating the structure of international criminal law by dividing it into two clearly distinguishable and internally coherent parts. At the same time, the proposed ‘system of transnational criminal law’ suffers from a lack of consistency between different instruments that have been developed in an isolated manner, each convention having been crafted as a legal response to a specific threat.24 Moreover, there is some overlap as certain offences defined in suppression conventions, such as trafficking in women and children25 and deprivation of liberty and hostage-taking,26 have also been included in the Rome Statute.27 Nor does the characteristic of limited jurisdiction seem to apply to all instruments of ‘transnational criminal law’. The broad extraterritorial jurisdiction required by the aut dedere aut judicare obligation common in anti-terrorist treaties is often implemented by establishing universal jurisdiction, in particular in jurisdictions that do not recognise the principle of vicarious administration of justice.28 It has also been pointed out that the obliga23. Neil Boister, ‘”Transnational Criminal Law”?’, 14 European Journal of International Law (2003) 953–976. 24. Ibid., at 958. 25. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the UN Convention against Transnational Organized Crime, adopted on 15 November, 2000, UN Doc. A/55/383. 26. Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, New York, 14 December, 1973, UNTS Vol. 1035, at 205, No. 15410; International Convention Against the Taking of Hostages, New York, 19 December 1979, UNTS vol. 1316, No. 21931. 27. They appear in the Statute as specific acts under article 7 on crimes against humanity and article 8 on war crimes, respectively. See Rome Statute, art. 7(1)(c) on enslavement. As explained in art. 7(2)(c), this provision extends to trafficking in persons, in particular women and children. See also arts. 8(2)(a)(viii) and (c)(iii) on the taking of hostages. 28. As pointed out by Minna Kimpimäki, Universaaliperiaate kansainvälisessä rikosoikeudessa (Gummerus Kirjapaino Oy: Helsinki, 2005), 114–118. See also Robert Kolb, The Exercise of Criminal Jurisdiction over International Terrorists’, in Andrea Bianchi (ed.), Enforcing International Law Norms Against Terrorism (Hart Publishing: Ardsley, 2004) 227–281 at 253, who has regarded ‘aut dedere aut prosequi’ as a form of conventional universal jurisdiction.

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tion to either extradite or prosecute, because of its mandatory nature, creates in practice a more effective regime than the principle of universality.29 It can thus be asked whether the criminalisations under ‘TCL’ present a sufficiently coherent body to be regarded as an autonomous field of law. Rather, it would seem that the law of the core crimes is a specific and exceptionally uniform category in the otherwise heterogeneous field of international criminal law. While the distinction between ‘crimes under international law’ and other international crimes is an established way to structure international criminal law,30 there is some uncertainty as to the proper place of certain specific crimes in the system of international criminal law. The history of the ILC Code of Crimes bears testimony to the difficulties inherent in trying to draw the line between crimes that are directed against the peace and security of mankind, and thus qualify for inclusion in the Code, and those that do not, even if they are of serious international concern. The ILC made it very clear in the commentary accompanying the final 1996 Draft Code that the articles were not intended to cover exhaustively all crimes against the peace and security of mankind, and that there might well be other, similar crimes not covered by the Draft Code.31 During the negotiations on the ICC Statute, an originally extensive list of crimes was narrowed down to the most obvious ones for reasons that were related not only to the nature of the crimes in question but also to the need to ensure an expeditious process that would lead to the early establishment of the Court.32 It may be taken that the ILC, either, was not quite sure of which crimes would come under the notion of ‘crimes under international law’.33 Even after the adoption 29. Bruce Broomhall, ‘State Actors in an International Definition of Terrorism from a Human Rights Perspective’, 36 Case Western Reserve University Journal of International Law (2004) 421–441 at 426–427. This remark is especially valid in view of the mandatory nature of aut dedere aut judicare obligations in, inter alia, anti-terrorist treaties, see Kolb, supra note 28, at 256. 30. Werle, supra note 3, at 43; Cassese, supra note 3, at 23–24; Triffterer, supra note 12, at 40. 31. 1996 Draft Code, commentary to art.1, para. 2, at 14–15. See also M. Cherif Bassiouni, ‘The History of the Draft Code of Crimes Against the Peace and Security of Mankind’, in Bassiouni (ed.), Commentaries on the International Law Commission’s 1991 Draft Code of Crimes Against the Peace and Security of Mankind, Association Internationale de Droit Pénal (Érès: Toulouse, 1993) 1–22 at 2. 32. The Rome Statute, art. 10, also contains a clause stating that the provisions on the Court’s jurisdiction are not to be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than the Statute. 33. When elaborating the Draft Statute for the ICC, the ILC had in fact first proposed restricting the Court’s jurisdiction ratione materiae to ‘crimes of an international character defined by treaties’, provided that the situation warranted their prosecution at the international level. ILC Final Draft Statute and Commentary (1994) for an International Criminal Court, reproduced in Sir Arthur Watts, The International Law Commission 1949–1998 (Oxford University Press, 1999), Vol. II, the Treaties, 1147–1765 (1994 Draft Statute), commentary to Part III, paras. 2–5, at 1473–1474. See also James Crawford, ‘The Work of the International Law Commis-

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of the Rome Statute, it could hardly be said that it was declaratory of existing substantive criminal law.34 As Sunga has pointed out, the Rome Statute recognises a more restricted list of crimes than either that reflected in general international law or that proposed at various stages of the International Law Commission’s work on the Draft Code.35 The concept of ‘treaty crimes’ – if used to refer to the crimes that were ultimately excluded from the jurisdiction of the ICC – is not quite accurate either, and does not fully explain why those crimes were left out. Suffice it to say here that the category of ‘treaty crimes’ also extends to the area of the core crimes as genocide and war crimes are crimes defined in treaties.36 Moreover, treaties are not the only source of ICL sensu largo.37 It is also interesting in this respect that the ILC, in the Commentary to the 1994 Draft Statute, saw a need to differentiate between various treaty crimes. The commentary distinguished between two strands of treaty crimes: crimes of an international character and crimes under ‘suppression conventions’. It pointed out in this connection that a distinction could be drawn ‘between treaties which define crimes as international crimes and treaties which merely provide for the suppression of undesirable conduct which a treaty requires to be made criminally punishable under national law’. The ILC observed, however, that such a distinction could be difficult to draw and ‘would add an additional level of complexity’.38 When proposing that certain treaty crimes could be included in the jurisdiction of the International Criminal Court, the ILC nonetheless introduced a subordinate category of treaty crimes ‘that constitute an exceptionally serious crime of international concern’.39 Apart from the ILC’s Draft Code of Crimes, there has been no attempt to codify the crimes under international law in a comprehensive way, and only two conventions – the Genocide Convention and the Apartheid Convention40 – use the term ‘crime under international law’. Moreover, there is neither an authori-

34. 35. 36. 37. 38. 39. 40.

sion’, in Antonio Cassese, Paola Gaeta and John R.W.D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, 2002), Vol. I, Chapter 2.1., 23–34, at 31. Crawford, supra note 33, at 33. Lyal S. Sunga, ‘The Crimes within the Jurisdiction of the International Criminal Court (Part II, Article 5–10)’, 6 European Journal of Crime, Criminal Law and Criminal Justice (1998) 377–399 at 378. As the ILC has noted, ‘The distinction between treaty crimes and crimes under general international law can be difficult to draw’, mentioning the crime of genocide as an important example. 1994 Draft Statute, para. 4, Watts, supra note 33, at 1474. Piracy is the oldest international law crime created by customary law. Boister has pointed out that other old crimes such as counterfeiting may be regarded as customary. Besides, ‘transnational crimes’ may have other sources such as soft law. See Boister, supra note 33, at 963. 1994 Draft Statute, commentary to Part III, para. 8, Watts, supra note 34, at 1475. Ibid., art. 20 and commentary, at 1477–1479. Genocide Convention, art.1; International Convention on the Suppression and Punishment of the Crime of Apartheid, UNTS Vol. 1015, at 243, Preamble, para. 5 and art.1.

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tative list of the necessary elements of an international crime ‘proper’, nor an unambiguous threshold for inclusion in the core group, as each convention is the result of a specific negotiation process. Political choice necessarily plays a role in the practice of multilateral law-making, and decisions on what is left out or included are often based on a delicate compromise affecting several parts of the instrument in question. It may be recalled that even an expert body such as the ILC cited political acceptability as one of its main considerations in deciding on the final scope of the Draft Code in 1996.41 It is also rare that conventions explicitly refer to their raison d’être, even though the Preamble of the Rome Statute contains paragraphs that can be seen to articulate the doctrinal basis for the jurisdiction ratione materiae of the Court.42 International criminalisations have mostly proceeded in an ad hoc fashion.43 Individual crimes have also changed place in the hierarchy of crimes, with piracy losing its special status44 and aggression as ‘the supreme international crime’45 being largely replaced by genocide as the ‘crime of crimes’.46

3. The Concept of the Core Crimes 3.1. General Characteristics The Preamble of the Rome Statute underlines the extraordinary capacity of the most serious crimes of international concern, even if directed at individual persons, to threaten whole societies.47 This characteristic is related to the wider political aspects of these crimes, which affect both the victims and the perpetrators. First of all, reference can be made to ‘depersonalisation’ as a common feature of the most serious international crimes: they do not target the victims as individuals but as representatives of an ethnic, political, national or religious group or other 41. 1996 Draft Code, para. 46, at 13: ‘Some members have expressed their regrets at the reduced scope of coverage of the Code. The Commission acted in response to the interest of adoption of the Code and of obtaining support by Governments’. 42. Rome Statute, Preamble; see also Bergsmo, supra note 3. 43. As Yarnold has pointed out, see Barbara M. Yarnold, ‘The Doctrinal Basis for the International Criminalization Process’, in M. Cherif Bassiouni (ed.), International Criminal Law, Vol. I Crimes (Transnational Publishers, Inc.: Ardsley, N.Y., 1999) 127–151 at 152. 44. About the evolution of views on piracy, and ‘the disappearance of piracy as a special crime’, see Jacob W.F.Sundberg, ‘Piracy’, in M. Cherif Bassiouni (ed.), International Criminal Law, Vol. I Crimes (Transnational Publishers, Inc.: Ardsley, N.Y., 1999), 803–815, at 814–815 and Cassese, supra note 3, at 24. 45. IMT Judgement , The Common Plan or Conspiracy and Aggressive War, available at (visited 4 January 2010). 46. William A. Schabas, ‘Article 6, Genocide’, in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (Nomos Verlagsgesellschaft: Baden-Baden, 1999) 107–116. See also Clark, supra note 15, at 92–93. 47. Bergsmo, supra note 3.

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such collectivity.48 Equally relevant is the collective nature of such crimes, which are not committed by individuals on their own but require a certain social and political context. The collective and complex nature of these crimes has been spelled out in articles 6 to 8 of the Rome Statute which contain a specific threshold requirement in each category to distinguish the crimes under the jurisdiction of the Court from ordinary crimes. Any act of genocide must thus be committed with the ‘intent to destroy a protected group in part or in whole’,49 a formulation that can be understood to imply a quantitative threshold,50 even though any of the principal acts defined in the Genocide Convention can alone qualify as genocide when committed with the requisite intent.51 Crimes against humanity must be part of ‘a widespread or systematic attack against a civilian population’ pursuant to or in furtherance of a State or organisational policy.52 Likewise, the Court may exercise its jurisdiction in respect of war crimes ‘in particular’ when committed ‘as part of a plan or policy or as a part of a large-scale commission of such crimes’.53 Crimes under international law form a separate category in which the prohibition of specific types of behaviour and their punishability is a direct consequence of international law.54 Individuals can thus be held responsible for such crimes directly under international law, whereas other international crimes have to be established as criminal offences under national law to take effect. Criminalisations ‘under international law’ are generally understood to protect the highest values of the international community,55 such as the peace, security and well-being of 48. Mireille Delmas-Marty, ‘Les crimes internationaux peuvent-ils contribuer au débat entre universalisme et relativisme des valeurs?’, in Antonio Cassese and Delmas-Marty, Crimes internationaux et juridictions internationales (Presses Universitaires de France: Paris, 2002) 59–67 at 67. 49. Rome Statute, art. 6, chapeau. See also Convention on the Prevention and Punishment of the Crime of Genocide, adopted on 9 December 1948, 78 UNTS 277, art. II. 50. Schabas, supra note 46, at 109. Maria Kelt and Herman von Hebel have emphasised that the specific intent to destroy is an ulterior motive not related to any material element, see Kelt and von Hebel, ‘General Principles of Criminal Law and the Elements of Crimes’, in Roy S. Lee (ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Transnational Publishers, Inc.: Ardsley, 2001) 19–40 at 32. 51. As confirmed by the ICTR Trial Chamber in Akayesu: ‘Contrary to popular belief, the crime of genocide does not imply the actual extermination of group in its entirety, but is understood as such once any one of the acts mentioned in Article 2(2)(a) through 2(2)(e) is committed with the specific intent to destroy “in whole or in part” a national, ethnical, racial or religious group.’ Prosecutor vs. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement of 2 September 1998, para. 497. 52. Rome Statute, art. 7, para.1, chapeau, and para. 2 (a). 53. Ibid., art. 8, para.1, chapeau. 54. 1996 Draft Code, at 15. 55. ‘Fundamentalinteressen’, ‘basic interests’ etc., see Werle, supra note 11, at 33: ‘Der Angriff auf die fundamentalen Interessen der Völkergemeinschaft rückt die Straftat in eine internationale Dimension und macht sie zum Völkerrechtsverbrechen’.

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the world.56 The exceptional gravity of these crimes is also reflected in their being frequently qualified as violations of jus cogens. 57 The specific criteria by which the core crimes are usually distinguished from other internationally recognised and regulated crimes most often refer to their magnitude and complexity as well as to the danger they pose to the international community.58 Some authors have placed an emphasis on the quantitative and organisational aspects of ‘mega-criminality’59 or ‘system criminality’60 while others have stressed the inherent nature of these crimes as ‘wrongs in themselves’, different from other international crimes which are ‘wrongs by force of the treaty that defines them’.61 Attention has also been drawn to the political motivation as a recurrent feature of the core crimes and, as noted earlier, to the large-scale or systematic commission of these crimes as a consequence of their collective nature and frequent state involvement in them. Another particular feature of crimes under international law is the role of international judicial bodies in applying, enforcing and developing the related substantive and procedural criminal law. International criminal law sensu stricto can therefore also be defined as a body of law and procedure related to international prosecution of the most serious international crimes.62 The independent existence ‘under international law’ of certain crimes and the 56. Rome Statute, Preamble, para. 3; Werle, supra note 11, at 78. See also Lorenzo Picotti, ‘Criminally protected Legal Interests at the International Level after the Rome Statute’, in Mauro Politi and Giuseppe Nesi (eds), The Rome Statute of the International Criminal Court (Ashgate: Darthmouth, 2001) 255–268 at 260. 57. According to Bassiouni, the recognition of certain international crimes as part of jus cogens implies the duty to prosecute or extradite, the non-applicability of statutes of limitation, universality of jurisdiction and, above all, an obligation on all states not to grant impunity to the perpetrators. See M. Cherif Bassiouni, ‘The Sources and Content of International Criminal Law: A Theoretical Framework’, in Bassiouni (ed.), International Criminal Law, Vol. I Crimes (Transnational Publishers, Inc.: Ardsley, N.Y., 1999), 3–125 at 39. For a list of jus cogens crimes, see ibid., at 41. 58. It goes without saying that these criteria are intertwined and often appear together. 59. Otto Triffterer, ‘The Preventive and the Repressive Function of the International Criminal Court’, in Mauro Politi and Giuseppe Nesi (eds), The Rome Statute of the International Criminal Court (Ashgate: Darthmouth, 2001) 137–175 at 147. 60. Elies van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (T.M.C. Asser Press: The Hague, 2003) at 5 et seq. 61. George Fletcher, ‘Parochial versus Universal Criminal Law’, 3 Journal of International Criminal Justice (2005) 20–34 at 23. 62. Danner and Martinez have characterised procedural ICL as a body of law and procedure ‘uniquely suited to providing accountability for episodes of mass atrocity and to coping with difficult political transformations’. Allison Marston Danner and Jenny S. Martinez, ´Guilty Associations: Joint Criminal Enterprise, Command Responsibility and the Development of International Criminal Law’, Vanderbilt University Law School, Public Law and Legal Theory Working Paper Series, Working Paper No. 04–09, Stanford Law School, Public Law & Legal Theory Working Paper Series, Research Paper No. 87, March 2004, at 84–85. Bassiouni, supra note 57, at 8, has pointed out that the sources of procedural ICL include both national and international law while it requires national law for implementation.

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fact that international prosecution has so far been limited to a few crimes has not only effectively maintained the division, but also led to certain autonomous developments with regard to individual criminal responsibility for the core crimes, especially in the jurisprudence of the ICTY but also in the ICC Statute.63 Finally, a special stigma is attached to the four core crimes, emphasising the exclusivity of the category and contributing to the general awareness of the universal condemnation of these crimes (Normbewusstsein64), and to their prevention (general deterrence65).

3.2. Gravity The exceptional gravity of the core crimes is commonly seen as one of their constitutive elements. To paraphrase the Preamble of the ICC statute, only ‘the most serious crimes’ are of concern to the international community as a whole.66 Seriousness may refer to the quantitative aspect – the mass scale – of the crimes as is clear from the threshold requirements in articles 6 to 8 of the Rome Statute, even though numerical assessment may not be decisive for the consideration of a specific crime or a particular instance of criminal conduct.67 The Statute leaves it to the Court to determine, case by case, whether the facts at hand are of sufficient gravity to justify further action by the Court.68 The gravity of an offence may also be related to the subjective element of the crime, such as the specific intent requirement in the case of genocide, or the knowledge of the ongoing attack against a civilian population in the case of crimes against humanity.69 Seriousness can also be a matter of normative judgement. Unnecessary cruelty or inhumanity 63. See van Sliedregt, supra note 60. See also Marja Lehto, Indirect Responsibility for Terrorist Acts. Redefinition of the Concept of Terrorism Beyond Violent Acts. The Erik Castrén Institute Monographs on International Law and Human Rights, Vol. 10 (Martinus Nijhoff Publishers: Leiden, Boston, 2009) at 108–196. 64. Werle, supra note 3, at 36 has clarified in this way the preventive effect of the criminalisations under the ICC Statute. 65. As Bassiouni has noted, ‘The policy of ICL in these crimes should maximise deterrence and prevention’, see M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law (2nd edn, Kluwer Law International: Dordrecht, 1999) at 97. 66. Rome Statute, Preamble, para. 9. 67. As the ICTY has pointed out, a single act is sufficient and an individual perpetrator need not commit numerous offences to be held liable. Prosecutor v. Duško Tadić, Case No. IT-94-1-T, Opinion and Judgement of 7 May, 1997 (Tadić Judgement), para. 649. 68. Rome Statute, art. 17 (1)(d): ‘Having regard to paragraph 10 of the Preamble and Article 1, the Court shall determine that a case is inadmissible where: […](d) The case is not of sufficient gravity to justify further action by the Court’. 69. The ILC noted in connection with the Draft Code that ‘[s]eriousness can be deduced either from the nature of the act in question (cruelty, monstrousness, barbarity, etc.), or from the extent of its effects (massiveness, the victims being peoples, populations or ethnic groups), or from the motive of the perpetrator (for example genocide), or from several of these elements.’ YBILC 1987 Vol. II Pt.I, commentary to Article 1, para. 2, at 13.

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in the concrete acts that constitute crimes can increase the gravity of the crime.70 In the Tadić case, the ICTY laid down the necessary elements for assessing the seriousness of a crime, which is one of the conditions to be fulfilled in order for the Tribunal to be able to exercise its jurisdiction.71 According to what is known as the ‘third Tadić condition’, any violation of the laws and customs of war, in order to be serious, must constitute a breach of a rule protecting important values and, furthermore, involve grave consequences for the victim.72

3.3. Violation of Fundamental Values There is also little question that the commission of any of the four core crimes violates the fundamental values of the international community.73 Bassiouni has included commonly shared values, the violation of which ‘shocks the conscience of mankind’ as one of the most important bases for international criminalisations.74 One effort to systematically classify international crimes according to the values that the pertinent criminalisations seek to protect has been made by the Association Internationale du Droit Pénal (AIDP), in a 1987 report, which can be taken to broadly reflect the legal views of the time.75 According to the AIDP report, criminalisations ‘under international law’ were needed to protect the highest values of the international community, while regulations on other international crimes sought to protect state-level values. In the latter case, the intervention of the international community was required to improve the organisation of state-to-state cooperation.76 Along similar lines, Werle has noted that international cooperation with regard to crimes other than those under international law (Völkerrechtsverbrechen) is based mainly on practical considerations of efficiency, and not on the inherent nature of the crimes. While the four core crimes affect the fundamental values of the international community and require 70. To assess the seriousness of an act, consideration must be given to all the factual circumstances, including ‘the nature of the act or omission, the context in which it occurred, the personal circumstances of the victim including age, sex and health, as well as physical, mental and moral effects of the act upon the victim’. Prosecutor v. Mitar Vasiljević, case No. IT-98-32-T, Judgement of 29 November 2002, para. 235. 71. According to the ICTY Statute, art.1, the Tribunal ‘shall have the power to prosecute persons responsible for serious violations of IHL’ committed in the territory of the former Yugoslavia since 1991 (emphasis added). The Tadić conditions have since been recurrently used by the Tribunal to determine the issue of jurisdiction. 72. Prosecutor v. Duško Tadić, Case No. IT-94-1-AR 72, Decision on the Defence Motion for Inter-locutory Appeal on Jurisdiction, 2. October 1996 (Tadić Jurisdiction Decision), paras. 94, 143. 73. Triffterer, supra note 12, at 43, pointed out that almost all national reports accepted the existence of specific values protected by the international legal order. 74. Bassiouni, supra note 57, at 100. 75. Triffterer, supra note 12. 76. Ibid., at 43–44.

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international action for that reason, he has pointed out, other international crimes give rise to mainly practical needs that are met by broadly harmonising national legislation and facilitating extradition, mutual legal assistance and other forms of international cooperation.77 Fletcher has introduced a slightly different concept – crimes that are ‘universal in the substantive sense’, that is, recognised by all or most criminal law systems in the world irrespective of the nationality of the victim or the perpetrator and aimed at protecting universal values such as human life and dignity. Such crimes, he has submitted, must be distinguished from ‘parochial’ crimes – such as fraud and treason – which can be defined as offences whose criminalisation is directed at preserving the self-interest of a state or international institution.78 While the special status of universal crimes, according to Fletcher’s definition, is a result of their universal condemnation, substantive universality is also based on the inherent nature of certain crimes as wrongs in themselves; it therefore comes close to the tradition of natural law, according to which certain rules and principles are eternal and therefore above positive law. Natural law considerations have been invoked with regard to the core crimes also by other authors.79 At the same time, it has been pointed out that the pertinent values have also been laid down in positive law, in particular in human rights law and international humanitarian law.80 For Boister, who has advocated the notion of ‘transnational criminal law’ as an autonomous branch of international law, distinct from international criminal law, ‘ICL is a higher-order law than TCL’.81 While few would deny the basic proposition that the most serious international crimes are those that violate the highest values of the international community, value-based categorisations are not very accurate when it comes to distinguishing crimes from each other. As the ILC has pointed, ‘there is no well-developed and authoritative hierarchy of values in international law’.82 Different scholars are not necessarily in agreement on what constitutes a universally shared value and whether a certain crime must be seen as violating such values.83 Value-based ap77. Werle, supra note 11, at 45. See also Boister, supra note 23, at 968. 78. Fletcher, supra note 61, at 24. 79. Antonio Cassese, ‘Y-a-t-il un conflit insurmontable entre souveraineté des États et justice pénale internationale?’, in Cassese and Mireille Delmas-Marty, Crimes internationaux et juridictions internationales (Presses Universitaires de France: Paris, 2002), 13–29, at 20; Vladimir-Djuro Degan, ‘On the Sources of International Criminal Law’, 4 Chinese Journal of International Law (2005) 45–83. 80. Cassese, supra note 3, at 23. 81. Boister, supra note 23, at 969. Similarly, Werle, supra note 3, at 42–45. 82. Report of the International Law Commission of its 54th session, 29 April–7 June and 22 July–16 August 2002, UN Doc. A/57/10, at 240. 83. See also Triffterer, supra note 12, at 45, pointing out that ‘crimes in which States participate can be dangerous to the world community even if ‘only’values of the national legal order are violated’. The report classified human rights as a domestic value while most would think today

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proaches have therefore led to widely different definitions of the scope of the core category. Werle’s list of Völkerrechtsverbrechen84 is limited to the four established ICC crimes, whereas Fletcher’s definition of ‘universal crimes’ is broad enough to include any homicide.85 Although essential in justifying certain aspects of international law-making, value considerations can hardly be seen as a sufficient basis for distinguishing international crimes from each other. Many authors have therefore opted for more objective criteria, such as state involvement.

3.4. State Involvement Historically, there has been a strong focus on state involvement in the relevant crimes, beginning from the Charter of the Nuremberg Tribunal which gave the Tribunal jurisdiction only with regard to individuals who acted ‘in the interests of the European Axis countries’.86 The nature of the crimes against peace as crimes of state, and ultimately dependent on governmental policy, was an obvious starting point for Post-World War II trials, even though they also dealt with crimes committed by medical doctors and industrial leaders87 that included acts committed within the framework of a common nationalist policy and ideology without the direct involvement of state authorities.88 It is still an agreed point of departure, even though not completely undisputed, that aggression is a state crime for which only the highest military and political leaders can bear the responsibility.89 A question may be raised as to whether the extended concept of aggression after September 2001 that includes terrorist acts, if massive enough, as a trigger for the exercise of the right of self-defence should affect the understanding of aggression as a leadership crime.90 This has not, however, been deemed to be a relevant consideration in the ongoing negotiations on the definition of the crime of aggression for the purposes of the ICC Statute.91 State involvement has been

84. 85. 86. 87. 88. 89.

90. 91.

that human rights lie at the heart of universal values. See for instance Bassiouni, supra note 57, at 46–47. Werle, supra note 3, at 30. Fletcher, supra note 61, at 24–25. Charter of the International Military Tribunal, art. 6, (visited 4 January, 2010). For instance USA v. Karl Brandt et al (Medical case), which was conducted by a US military commission by virtue of Control Council Law No.10, available at (visited 4 January, 2010). See Ambos, supra note 12, at 88 and 95–101. Special Working Group on the Crime of Aggression, report of the meeting on 9,10,11 and 13 February 2009, ICC-ASP/7/20, Appendix. For a different view, see Kevin Jon Heller, ‘Retreat from Nuremberg : The Leadership Requirement in the Special Working Group’s Definition of Aggression’, 18 European Journal of International Law (2007) 477–497 Brigitte Stern, ‘Rapport introductif: Le contexte juridique de “l’après” 11 septembre 2001’, in Karine Bannelier et al. (eds.), Le droit international face au terrorisme (Editions Pédone : Paris, 2002) 3- 32 at 26–27. The view that ‘there are already sufficient legal bases for prosecuting individuals responsible for

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a central element also in crimes against humanity as they have been traditionally perceived. In that context both the collective character and the exceptional scale of crimes against humanity have been seen as a consequence of a state policy or involvement, together with the use of the resources and the administrative machinery of the state for criminal purposes. War crimes in international armed conflicts, at least if widespread or systematic, rarely take place without a state policy or tolerance. Only recently, and notably in the case law of the two ad hoc war crimes tribunals, have efforts been made to adapt the law to the reality of present-day conflicts in which non-state actors play a prominent role. The need to be able to address crimes that have been committed by armed groups or by private individuals in the context of a civil war has triggered new developments in the implementation of international humanitarian law, and has contributed to a wider understanding of the core crimes that incorporates a special emphasis on the role of non-state actors. The jurisprudence of the ICTY has paved the way for the extension of the protection of civilians in non-international armed conflicts as well as in preand post-conflict situations, all of which has affected the definition of the core crimes. The new developments have included, most notably, the decision that serious violations of humanitarian law committed in internal armed conflicts are international crimes. The list of important advances in the ICTY also includes the dropping of the requirement of a nexus to an armed conflict for crimes against humanity, application of the principle of superior responsibility to civilian leaders, and a new assessment of the policy element in crimes against humanity. Although the core crimes traditionally have been committed or orchestrated by states, increasingly nuanced analyses of the role of the state in the commission of such crimes have been presented recently. If state involvement plays a decisive role for Yarnold in distinguishing international crimes from transnational crimes,92 Cassese does not thus regard state involvement as a necessary element of all international crimes ‘proper’, which, as he notes, can be committed by representatives or agents of a state but also by non-state actors.93 Often the state is considered the necessary facilitator, without which such complex crimes would not take place. Bassiouni refers to ‘international crimes that are predicated on state action or policy’ as the normal form of not only aggression, but also of crimes against the terrorist attacks of 11 September under other charges, also if need be at the international level’ seems to be widely shared. See Rolf Einar Fife, ‘Criminalizing Individuals for Acts of Aggression Committed by States’, in Morten Bergsmo (ed.), Human Rights and Criminal Justice for the Downtrodden: Essays in Honour of Asbjørn Eide (Martinus Nijhoff Publishers: Leiden, Boston, 2003) 53–73 at 72. 92. Yarnold, supra note 43, at 148. In her view, only states can threaten international peace and security, and international crimes can therefore be restricted to those which are directly or indirectly related to state activity. 93. Cassese, supra note 3, at 23–24.

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humanity, genocide, and apartheid.94 He accepts that non-state groups could, in principle, commit crimes against humanity, but has limited this possibility to situations where the group in question has state-like attributes, such as territorial control or ambitions.95 According to Werle, it would be sufficient that such an organisation has de facto the capability to launch an attack against a civilian population. Cases in point here would be not only paramilitary units but also terrorist organisations.96 One of the more sociological analyses has submitted that genocide, war crimes and crimes against humanity can only be committed when the political framework in a state permits such behaviour. These crimes could never be the product of isolated actions by persons or even by groups or organisations unless the state provides an exceptional ‘criminogenic situation’ as the overall context in which such crimes can be planned and carried out.97

3.5. Collective Context Sociological analyses of situations apt to provoke collective crimes raise issues that are normally referred to as the contextual element of the crimes in question. Large-scale or systematic commission of crimes of a similar type – a pattern of violence – is both an indication and a constitutive element of many core crimes, which are set apart from common criminality by their magnitude, complexity, and seriousness. The groundwork for the legal analysis of this policy element was laid already by the ILC in the context of the Draft Code for the purposes of defining the category of crimes against humanity. The Draft Code requires that such crimes be ‘instigated or directed by a government or by any organization or group’.98 The ILC pointed out in its commentary that the intention was ‘to exclude the situation in which an individual commits an inhumane act while acting on his own initiative pursuant to his own criminal plan in the absence of any encouragement or direction from either a government or a group or organization’.99 While the ICTY’s jurisprudence has considerably relaxed the policy requirement, it has nevertheless emphasised the importance of excluding criminal acts that are

94. Bassiouni, supra note 65, at 403. 95. Ibid., at 245: the extension of the notion of crimes against humanity by analogy to non-state actors would require that they ‘partake of the characteristics of state actors in that they exercise some dominion or control over territory and people and carry out a “policy” which has similar characteristics as those of “state action or policy”’. 96. Werle, supra note 3, at 248, has pointed out that the organisation must have ‘das sachliche und personale Potentiel zur begehung eines ausgedehnten oder systematischen Angriffs auf eine Zivilbevölkerung. …Neben paramilitärischen Einheiten kommen insbesondere auch terroristische Organisationen in Betracht’. 97. Triffterer, supra note 59, at 147, referring to Herbet Jäger’s research. 98. 1996 Draft Code, art. 18. 99. Ibid., commentary to art. 18, para 5, at 95.

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‘the work of isolated individuals alone’.100 The ICC Statute largely follows the same approach.101 The chapeau of article 7 on crimes against humanity contains a disjunctive test, according to which the acts must be either widespread or systematic. This test must nevertheless be read together with the definition of attack in subparagraph 2(a) of the article, which requires the commission of ‘multiple acts’ against any civilian population ‘pursuant to or knowingly in furtherance of a governmental or organizational policy to commit such acts’.102 In the end, the two requirements are thus cumulative, and the emergence of a pattern of crime is a necessary feature of crimes against humanity.103 The requirement of a collective context has particular importance for war crimes which can only be committed in situations of an armed conflict. In the case of crimes against humanity, no such nexus is recognised anymore, and the concept of an ‘attack against a civilian population’ should thus not be confused with the concept of ‘an attack’ in international humanitarian law.104 As for aggression, the real occurrence of a collective act of aggression is generally regarded as a prerequisite of the individual crime of aggression.105 The requirements set forth in articles 6 to 8 of the Rome Statute have been further elaborated in the Elements of Crimes as the ‘contextual elements’ that relate a specific act to the broader context of the crimes in question.106 In the literature, the requisite contextual element has been referred to as ‘events appearing outside of the individual perpetrator’s sphere of influence on the macro-level’, in the sense of exceptional and unexpected circumstances that may turn anyone into a perpetrator of a crime.107 Attention has also been drawn to the indiscriminate nature of collective political violence: it is ‘unpredictable … who may be victimized at what time, where and why by such crimes’.108 The unpredictability of the massive, collective crimes is due to 100. Prosecutor v. Dragan Nikolić, Case No. IT- 94 -2, Review of Indictment pursuant to Rule 61 of the Rules of Procedure and Evidence, 20 October, 1995, para. 26. 101. As Werle, supra note 3, at 245, has pointed out, the formulation of the policy element in the chapeau of article 7 was inspired by the 1996 Draft Code. 102. Rome Statute, art. 7. See also Herman von Hebel and Darryl Robinson,’Crimes within the Jurisdiction of the Court’, in Roy S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute. Issues, Negotiations, Results (Kluwer Law International: The Hague, Boston, London, 1999) 79–126 at 94–95. 103. This has been criticised by Guénaël Mettraux as an excessively categorical requirement in view of the customary law, see Mettraux, ‘Crimes Against Humanity in the Jurisprudence of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda’, 43 Harvard International Law Journal (2002) 237–316 at 281. 104. Ibid., at 245. 105. Fife, supra note 91. 106. Herman von Hebel, ‘Developing Elements of Crimes’, in Roy S. Lee (ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Transnational Publishers, Inc.: Ardsley, 2001) 8–18 at 15. 107. Triffterer (2001), supra note 59, at 147, 162. 108. Ibid., at 162.

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their ‘depersonalisation’; that is, the victims are targeted either as members of a certain group or just happen to be where a blind attack is launched.109

3.6. Political Motivation Political motivation was singled out as a common feature of the international crimes sensu stricto already in the 1987 AIDP report.110 The political nature of the core crimes is apparent also in the term ‘political macro-criminality’ which is recurrently used of this type of crimes and which arguably better reflects their particular characteristics.111 More recently, the political aspect of ‘collective crimes’ has been the subject of extensive consideration both in the literature and in the jurisprudence of the international criminal tribunals. The commission of the core crimes, it is often underlined, is supported and characterised by the pursuit of the interests of organisations or organised political groups, or states.112 Their political nature is also the key to the mass base of many core crimes which are ‘committed by a collectivity’. As the ICTY Trial Chamber noted in the Kvočka case, in situations of armed conflict or mass violence ordinary citizens can be prompted to commit crimes they would normally never commit.113 Such situations threaten the whole fabric of the community and society at large. This is a feature that clearly distinguishes the core crimes from profit-driven crime which may be transnational and organised but which cannot inspire mass support as it is directed towards private gain. The requirement of a political motive is also the principal reason for a certain reticence to include piracy, or drug crime, in the category of the core crimes. Piracy is the oldest international crime, was widely recognised in customary law before it was codified in the 1958 and 1982 Law of the Sea Conventions, and still enjoys a special status in that branch of international law as an exception to

109. Delmas-Marty, supra note 48, at 67, has noted that an assassination can not constitute a crime against humanity as long as the victim is identified and targeted because of his or her personality: ‘Il le devient: soit lorsque la victime est visée pour sa seule appartenance à un groupe national, ethnique, racial ou religieux, voire à un groupe génétique; soit dans le cas des attentats “aveugles”, c’est-à-dire commis indépendamment de la personnalité des victimes.’ The violation of the rights of the individual becomes instrumental as it is the group that is actually targeted. See also Picotti, supra note 56, at 265. 110. Triffterer, supra note 12, at 45. 111. The term has been commonly used in German-language discussion as ‘politische Makro-Kriminalität’. Ambos, supra note 12, at 50, has defined ‘Makrokriminalität’ as ‘systemkonforme und situationsangepasste Verhaltensweisen innerhalb eines Organisationsgefüges, Machtapparates oder sonstigen kollektiven Aktionszusammenhangs’ (footnote omitted). See also Werle, supra note 3, at 106. 112. Picotti, supra note 56, at 267. 113. Prosecutor v. Miroslav Kvočka et al. Case No. IT-98-30/I-T, Judgement of 2 November 2001, para. 310.

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the jurisdictional rules concerning the high seas.114 Nonetheless, it has not been mentioned in any of the codifications of international criminal law sensu stricto. In 1950, it was suggested that genocide and piracy might be properly included in the proposed Code of Crimes against the Peace and Security of Mankind. The ILC Special Rapporteur concluded, however, that the scope of the Draft Code should be restricted to crimes which display a highly political nature and that piracy, although delicta juris gentium, should be excluded.115 Furthermore, and while the humanitarian toll of piracy and maritime robbery is rising, piracy is mainly directed at property values instead of community or humanitarian values.116 The concept of ‘political macro-criminality’ as the most accurate description of the core crimes is challenged already by the fact that piracy is a form of private violence. The same applies to terrorism, although Al Qaida-type international terrorism, as will be discussed in section 5 below, comes quite close to “macrocriminality” if understood as a product, directly or indirectly, of an organised criminal activity with political goals. Should piracy, which by definition can only be pursued for private gain, be accepted as an ICC crime, this would also challenge the other essential component of the concept.

3.7. Special Stigma Whatever the manner in which the core group of crimes is defined or structured, there is wide agreement on the fundamental need for a certain hierarchy in international criminal law. The special stigma attached to the core crimes as ‘the most serious crimes of concern to the international community as a whole’ is essential from the point of view of general deterrence, and not unrelated to the collective nature of the crimes and to the perception that under appropriate circumstances (a ‘criminogenic’ situation) anyone could become a genocidaire. The special stigma serves to discredit and curtail policies that could take advantage of such circumstances and inflame genocidal feelings. The stigma is, however, an exclusive category: to be credible, it must be distinctive. The AIDP Report explained the need to avoid banalisation of the highest category of crimes in the following way: ‘Especially with regard to developing consciousness it is necessary to distinguish between international crimes in the narrow and in the broad sense. Without this classification international traffic in pornographic material would fall under the same category as crimes against peace. This could lead to

114. UN Convention on the Law of the Sea, adopted on 10 December 1982, UNTS Vol. 1833, at 396. For the definition of piracy, see art. 101, for the powers to seize and arrest, see art. 105. 115. UN Doc. A/CN.4/19 and Add. 1 and 2, UN Doc. A/CN.4/25, paras. 35 and 36, II YBILC (1950), at 251 and 259. 116. See also Cassese, supra note 3, at 24.

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the assumption that crimes against peace are not more abominable than traffic in pornographic material’.117 The special stigma attached to the core crimes is, however, as much an aspiration (criminal policy element) as a genuine characteristic, which is also evident from the cited paragraph. If traffic in pornographic materials was mentioned as an obvious example of a relatively harmless offence in the 1980s, the recognition of traffic in human beings and sexual exploitation of children as serious international crimes in recent years may have changed this assessment. While the content of the list may change, it must be kept short in order not to weaken the stigma and banalise the concept of ‘core crimes’, ‘crimes against the peace and security of mankind’, or ‘the most serious crimes of concern to the international community as a whole’.

4. Reflections on the Crime of Terrorism Terrorism is one, and perhaps the most prominent, example of the crimes that have been difficult to situate – either within the core category of international crimes or outside it. Werle has noted that the proper placement of the crime of terrorism in the hierarchy of crimes remains controversial.118 Boister has mentioned large-scale terrorism as an example of transnational crime that may warrant reclassification,119 and Cassese has regretted the fact that the jurisdiction of the ICC was not extended to terrorism.120 Bassiouni has put forward two reasons for not including terrorist crimes in the core category noting that terror-violence could be ipso iure placed in the class of international crimes, were it not, first, for the absence of state involvement and, second, for the concern about trivialising the highest category of crimes.121 The importance of the former reason has been underlined by Cassese, who has included ‘some extreme forms of terrorism’ under the definition of international crimes, together with war crimes, crimes against humanity, torture and aggression, arguing that the crime of terrorism in this sense has already been consolidated in customary international law.122 The necessary elements of such a customary law crime of terrorism would in his view include the violent nature, the purpose of spreading terror, and a political or ideological 117. Triffterer, supra note 12, at 46. 118. Werle, supra note 3, at 31, has noted that ‘[o]b über die Kernverbrechen hinaus weitere Delikte, etwa Rauschgiftshandel oder Terrorismus direkt nach Völkerrecht strafbar sind, ist umstritten. Hier befindet sich die Völkerrechtsentwicklung in vollem Fluss’. In his own view, at 31, ‘[u] ngeachtet der mitunter erheblichen Dimension terroristischen Straftaten gilt: Terrorismus ist als solcher kein Völkerrechtsverbrechen’. 119. Boister, supra note 23, at 972. 120. Cassese, supra note 3, at 24. 121. Bassiouni, supra note 57, at 98–99. 122. Cassese, supra note 3, at 24.

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(non-private) motivation.123 In order to qualify as an international crime proper, however, terrorist acts should also 1) show a nexus to an armed conflict, 2) be massive enough to amount to a crime against humanity, or 3) involve state authorities and display a transnational dimension.124 Under the first two of these conditions, terrorism would be treated either as a war crime or as a crime against humanity. The third variant, however, would constitute an independent crime of ‘state terrorism’. With regard to Bassiouni’s second reason for not counting terrorism as one of the most serious international crimes, attention can be drawn to Pellet’s forceful remark on the need to avoid the banalisation of the core crimes: he argued in 1997 that terrorist crimes – as repulsive, reprehensible and condemnable as they were – could not be seen to be directed at the peace and security of mankind as a whole in the same way as the core crimes. In accordance with the prevailing view of the time, which also strongly influenced the negotiations on the Rome Statute, Pellet concluded that the category of core crimes should be limited to the four crimes of aggression, genocide, crimes against humanity and war crimes – ‘quatre crimes et quatre seulement!’.125 Six years later, when commenting on the French Cour de Cassation’s decision of March 2001 in the Qaddafi case not to count terrorism among the most serious international crimes entailing denial of immunity from prosecution for foreign heads of state, Pellet pointed out that the events of 11 September 2001 had set off a change in the dominant opinion: ‘one could plausibly argue that, if the decision had been handed down about a year or so after March of 2001, the response would have (and should have) been different’.126 The somewhat uneasy situation of terrorist crimes in international criminal law – excluded from the category of the core crimes but often cited as a special 123. The acts in question should also constitute criminal offences under most national legal systems. Cassese, supra note 3, at 124. 124. Ibid., at 125–126. 125. Alain Pellet, ‘Le projet de statut de Cour criminelle internationale permanente – Vers la fin de l’impunité?’, in Hector Gros Espiell Amicorum Liber, Personne humaine et droit international (Bruylant : Brussels, 1997) Vol.II, at 1074–1075, cited by Sandra Szurek, ‘Le jugement des auteurs d’actes de terrorisme: quels tribunaux après le 11 septembre?’, in Karine Bannelier et al. (eds) Le droit international face au terrorisme (Editions Pédone : Paris, 2002) 297–319 at 317. 126. Alain Pellet, ‘The Responsibility of Government Leaders for International Crimes of the State’, in Ghislaine Doucet (ed.), Terrorism, Victims and International Criminal Responsibility (SOS Attentats, Imprimerie Floch: Mayenne, 2003) 289–297 at 295. Similarly Eric David, ‘The Issue of Immunity of Foreign Heads of State in Light of the March 13, 2001 Decision of the French Cour de Cassation and the February 14, 2002 Decision of the International Court of Justice’, in Ghislaine Doucet (ed.), Terrorism, Victims and International Criminal Responsibility (SOS Attentats, Imprimerie Floch: Mayenne, 2003) 309–323 at 310, and Salvatore Zappala, ‘Do Heads of State in Office Enjoy Immunity from Jurisdiction for International Crimes? The Ghaddafi Case Before the French Cour de Cassation’, 12 European Journal of International Law (2001) 595–612 at 609–612.

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case – is related both to the particular context in which international criminal law sensu stricto has developed, and to the specific nature of the terrorist offences as set forth in the UN anti-terrorist Conventions and Protocols. Firstly, it is better understood against the background of the codification of the core crimes. The intensive development of international criminal law that began in the mid-1990s was not primarily concerned with the classification of the crime of terrorism but with the consolidation of the concept of the core crimes which until that time had been inadequately defined and burdened by inconsistent terminology. In this light, the exclusion of terrorist crimes from the jurisdiction of the ICC was more a consequence of the primary focus on the Nuremberg crimes than of a thorough consideration of the various forms of terrorism. This state of affairs was also reflected in the fact that the decision not to extend the jurisdiction of the ICC to terrorist crimes was accompanied by a recommendation that the issue could be revisited at a later stage.127 Secondly, the existence within the UN framework, where most of the international anti-terrorist instruments have been crafted, of two different traditions of addressing terrorism has been a source of certain confusion. The origins of the historical tradition of ‘state terrorism’ can be traced back to the time of the League of Nations.128 This tradition views terrorism as a phenomenon that mainly concerns states, whether as victims or as perpetrators. It reflects the historical understanding of international crimes, which had a profound impact on the International Law Commission’s elaboration of the Draft Code of Crimes for decades.129 The consistent mention of terrorism, most often in the sense of state terrorism, in the codification efforts of the ILC from the late 1940s until the adoption of the ICC Statute supports Cassese’s claim that certain extreme forms of terrorism are crimes under customary law.130 The other tradition, which builds on the various sectoral conventions and protocols adopted from late 1960s onwards, views terrorism as private violence and plays down its political nature by defining the offences in an 127. UN Doc. A/CONF.183/10, Resolution E, at 7–8. This recommendation addressed also drug crimes. 128. Convention for the Prevention and Punishment of Terrorism, adopted on 16 November 1937, 19 LNOJ 23 (1938). See also Ben Saul, ‘The Legal Response of the League of Nations to Terrorism’, 4 Journal of International Criminal Justice (2006) 78–102. 129. Both the 1954 and the 1991 versions of the ILC Draft Code included terrorism as one of the crimes against the peace and security of mankind, and in both versions it was presented in terms of state terrorism. For an analysis, see Lehto, supra note 63, at 58–72. 130. Cassese, supra note 3, at 24. See also Cassese, ‘Terrorism as an International Crime’, in Andrea Bianchi (ed.), Enforcing International Law Norms Against Terrorism (Hart Publishing: Ardsley, 2004), 213–225 (Cassese 2004), and ‘The Multifaceted Criminal Notion of Terrorism in International Law’, 4 Journal of International Criminal Justice (2006) 933–958 at 933,935. While there is little doubt about the customary nature of the core ‘definition of terrorism’, the crucial question is whether terrorism has already crystallised into a customary law crime for which individuals can be prosecuted under international law.

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objective way to cover also acts committed for material gain or for other private purposes. While the focus of the sectoral instruments is clearly anti-terrorist and they, too, have contributed to a common understanding of certain violent crimes as acts of terrorism, a generic definition of a terrorist act has been included only in the draft Comprehensive Convention on the Suppression of Terrorism, which has not yet been adopted.131 The terrorist attacks of 11 September 2001 triggered a new debate about the potential role of international tribunals in prosecuting terrorist crimes. The arguments raised in favour of such a role have been either practical, related to the limitations of national judicial systems faced with large-scale terrorism, or have reflected a changed view of terrorism as a security threat. Some eminent experts have pointed out that crimes of such magnitude could not be properly handled by national courts and have proposed a specific international tribunal to deal with terrorist crimes.132 Others have taken the view that terrorist acts on the scale of the September 2001 attacks would in any event come under the jurisdiction of the ICC as crimes against humanity.133 Delmas-Marty has agreed with the latter view but, at the same time, has pointed out that this could not possibly be the case with regard to any and all terrorist acts – a reason for her to doubt the pertinence of the whole concept of ‘terrorism’ as a generic denomination.134 The High Level Panel set up by the UN Secretary General in 2004 proposed in its report that acts under the (then) twelve anti-terrorist conventions and protocols should once and for all be declared to constitute crimes against international law.135 That proposal

131. For the definition, see Report of the Ad Hoc Committee established by General Assembly resolution 51/210 of 17 December 1996, Sixth session (28 January–1 February 2002), UN Doc.A/RES/57/37, at 6. For the present state of negotiations, see UN Doc. A/64/37. See also UN Doc. A/C.6/64/SR. 2–5, 14, 24 and 25. 132. Richard Goldstone, Crimes of War, December 7, 2001, proposed that an ad hoc tribunal be set up by the UN Security Council to deal with the crimes committed on September 11, 2001, (visitde 4 January 2010). See also International Terrorism: Legal Challenges and Responses, Report by the International Bar Association’s Task Force on International Terrorism (2003). For an account of the different views, see Szurek, supra note 125. For a sceptical comment on the grounds for internationalising terrorism prosecutions, see Madeline Morris, ‘Arresting Terrorism: Criminal Jurisdiction and International Relations’, in Andrea Bianchi (ed.), Enforcing International Law Norms Against Terrorism (Hart Publishing: Ardsley, 2004) 63–79. 133. Supra note 9. 134. Delmas-Marty, supra note 48, at 62. For a similar analysis, see Yann Jurovics, ‘Les controverses sur la question de la qualification du terrorisme: crime de droit commun, crime de guerre ou crime contre l’humanité?’, in Karine Bannelier et al. (eds), Le droit international face au terrorisme (Editions Pédone: Paris, 2002) 95–104 at 101. 135. `A More Secure World: Our Shared Responsibility’, Report of the High-level Panel on Threats, Challenges and Change, 2 December 2004, UN Doc. A/59/565, para. 44 b).

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did not, however, make its way to the UN Secretary General’s subsequent report136 or to the UN Summit Outcome document in 2005.137 While few would question the special status of the four core crimes, the outer edges of ICL sensu stricto, as well as the doctrinal bases for distinguishing between different categories of crime remain disputed. Taken one by one, most of the characteristics that are frequently attributed to the genuine international crimes can also be used to argue in favour of the inclusion, de lege ferenda, of at least some of the terrorist offences in the category of the most serious international crimes. In particular, the new forms of terrorism as known and perceived today – large-scale irregular violence by non-state actors – present characteristics that are normally attributed to the core crimes.138 The next section will revisit the general characteristics of the most serious international crimes from the point of view of their applicability to the prevalent form of large-scale terrorist attacks committed in a coordinated manner. The assessment to follow is based on and reflects a doctrinal debate that has not as yet made its way to any codification exercise. The effort is therefore bound to remain inconclusive, due to the relativity of the concepts involved, while a more definite analysis can be made of the extent to which terrorist crimes meet the criteria of those categories of crime that have been defined with precision, such as crimes against humanity, war crimes and genocide.139

5. Terrorism as a Core Crime Reflecting first on the requirement of widespread or systematic commission, and recalling that the first-mentioned attribute can refer either to the cumulative effect of a series of acts or to the effect of a single act of extraordinary magnitude,140 it may be noted that many of the recent terrorist attacks have resulted in mass victimisation. Increasing lethality has in fact been one of the features of the international terrorism in the past 10 to 15 years.141 Many of the recent terrorist attacks also follow a recognisable pattern of Al-Qaida-inspired 136. ‘In Larger Freedom: towards development, security and human rights for all’, Report of the Secretary-General, 21 March 2005, UN Doc. A/59/2005. 137. 2005 World Summit Outcome Document, 24 October 2005, UN Doc. A/RES/60/1. 138. Arnold, ‘The ICC as a New Instrument’, supra note 8, has held, at 60–61, that ‘terrorism should not be considered along the same lines as other treaty crimes’ and that it should be possible to prove that acts of terrorism ‘possess the elements of the already existing core crimes’ (original emphasis). 139. Ibid. 140. Mettraux, supra note103, at 260; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14, Judgement of 3 March, 2000, para. 206. 141. For a statistical analysis, see Walter Enders and Todd Sandler, ‘Is Transnational Terrorism Becoming More Threatening?’, 44 Journal of Conflict Resolution (2000) 307–332 at 328.

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violence, the common features of which include a multiplicity of violent acts taking place more or less simultaneously, carried out with a certain recognisable method (mostly with improvised explosive devices), directed at civilian targets such as public transportation systems, and causing a high number of casualties. Examples include the embassy bombings in Dar es Salaam and Nairobi in 1998, the use of airplanes as missiles in New York and Washington D.C. in 2001, and the coordinated bomb attacks against trains in Madrid in 2004 and in London in 2005.142 Considering that several countries in different parts of the world have been affected, such acts can be said to be widespread. Whether they can also be linked to each other so as to be part of one and the same campaign or attack depends on how one interprets the policy requirement that is an essential element of the crimes against humanity. There would nevertheless seem to be fairly good grounds to claim that, for instance, the four above-mentioned terrorist acts were expressions of the same broad policy carried out by Al-Qaida or by groups ideologically inspired by Al-Qaida. Whether the perpetrators have had closer contacts with the Al-Qaida core than the ideological influence, remains to be proved in each case separately.143 Translating the remarks about the role of the state in the commission of the core crimes into the discourse on terrorist crimes, it can be pointed out that all variations are conceivable where international terrorism is concerned. There are examples of direct involvement in or orchestration of terrorist crimes by states as well as of state acquiescence or toleration of terrorist groups and activities.144 There is also broad agreement on the importance of the underlying conditions that create or sustain terrorist violence – or ‘conditions conducive to the spread of terrorism’, to use the language of the UN Counter-terrorism Strategy – even though the weight to be attached to any single factor, such as economic, social or political circumstances, may vary.145 In a very general sense, it may be said that ‘acts of terrorism are always executed in furtherance of a policy’.146 No such threshold requirement has, however, as yet been laid down in the pertinent antiterrorist criminalisations which all focus on individual acts. As for quantitative 142. Reference can also be made to thwarted operations suh as the two plans to explode several airplanes in mid-flight over the Pacific (operation ‘Oplan Bojinka’ in 1995) and the Atlantic (the plan was discovered and foiled by the British police in August 2006). 143. For the ‘inspiration model’, see Aidan Kirby, ‘The London Bombers as “Self-starters”: A Case Study in Indigenous Radicalisation and the Emergence of Autonomous Cliques’, 30 Studies in Conflict & Terrorism (2007) 415–428. 144. Several scholars have distinguished between different degrees of state support for terrorism relevant to the legal responses. See, for instance, Antonio Cassese, International Law, 2nd edn (Oxford University Press, 2005), at 470, and Tal Becker, Terrorism and the State: Rethinking the Rules of State Responsibility (Hart Publishing: Padstow, Cornwell 2006) at 240. 145. UN Global Counter-Terrorism Strategy, adopted 20 September 2006, UN Doc. A/RES/60/288, Annex (Plan of Action), Pt. I. 146. Arnold, The ICC as a New Instrument, supra note 8, at 260.

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elements, certain anti-terrorist conventions require an intention to cause or likelihood of causing serious damage, in particular where damage to property or the environment is included in the definition of the crime.147 The existing international criminalisations of terrorist crimes do not presuppose any real contextual element either, even though the so-called ‘terrorist intent’ which applies to certain criminal acts under the anti-terrorist conventions is defined objectively by a reference to the purpose of the act, which ‘by its nature or context’ is to intimidate a population, or to compel a government or an international organisation to do or to abstain from doing any act.148 The systematic nature, or pattern, of certain terrorist acts is therefore best captured by the existing definitions of crimes against humanity. In this respect it is of relevance to point out that the contextual element in crimes against humanity does not require a nexus to a state. An attack against a civilian population is most often a result of state or organisational policy, yet it can encompass a wide spectrum of different situations. Whether the notion of crimes against humanity is applicable to certain terrorist acts depends on the link of the specific acts to a broader policy by a state, organisation or group. Depersonalisation as a specific feature of genocide and other core crimes also applies to terrorist acts which are often defined in terms of their double target. The victims of terrorist attacks may be chosen randomly or because of their being identified with a specific group, but rarely because of their personal identity. The actual victims constitute a secondary target; the primary target is the state, government or intergovernmental organisation to which they can be connected – often only by their presence in a certain public place. As Mani has pointed out, ‘Terrorism reflects a deliberate tactical relationship between the terrorist act and the target. The victims who are instrumentalised to serve the terrorist’s purpose may be randomly or deliberately chosen, but there is nothing accidental about the choice of the target government, institution, or actors put on notice through the terrorist act’.149 The arbitrary and uncontrollable nature of the core crimes 147. International Convention on the Suppression of Terrorist Bombings, New York, 15 December 1997, UN Doc. A/RES/52/164, Annex, UNTS Vol. 2149, p. 284. Art. 2(1)(b) requires an intent to cause extensive destruction, as well as actual causation, or likelihood that the destruction results in major economic loss. 148. International Convention on the Suppression of the Financing of Terrorism, adopted on 9 December 1999, UNTS Vol. 2178, p. 229, art. 2 (1)(b); 2005 Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, adopted on 14 October 2005, IMO Doc. LEG/CONF.15/DC/1 of 13 October, 2005, Article 3 bis (1). See also Kelt and von Hebel, supra note 50, at 27: elements that use terms like ‘intended’ or ‘calculated’ do not refer to the mind of the perpetrator, but rather describe the character of the measures taken. 149. Rama Mani, ‘The Root Causes of Terrorism and Conflict Prevention’, in Jane Boulden and Thomas G. Weiss (eds.), Terrorism and the UN: Before and After September 11 (Indiana University Press: Bloomington, 2004) 219–241 at 229.

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has also been stressed as their inherent trait, in words that are reminiscent of the usual way to depict terrorist crimes: ‘Their unpredictability must necessarily lead to fear, especially since no individual alone can do anything in any part of the world to escape this danger’.150 Terrorist offences are undoubtedly serious crimes and have been considered such by governments all over the world, as well as by the UN General Assembly, the Security Council and other international organisations. Terrorist acts have been condemned by consecutive UNGA resolutions as ‘in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them’.151 The same formulation, with minor modifications, was subsequently included in the Terrorist Bombings Convention152 and the Convention on Terrorist Financing153 as well as in Security Council resolution 1566 (2004)154 and the 2005 Council of Europe Convention on the Prevention of Terrorism.155 Closely related to the ‘non-justification’ clause in recent anti-terrorist conventions is the prohibition against invoking the political nature of the crime or the political motivations of its alleged perpetrator as a reason for refusing extradition. Both provisions underline the perception of the crimes defined in these conventions as exceptionally serious. Applying the ‘third Tadić condition’ laid down by the ICTY, it could be added that, first, the pertinent criminalisations protect values such as the life, health and well-being of civilian populations, the safety of civil aviation and maritime navigation, as well as the system of diplomatic relations between states. Furthermore, terrorist acts, whether bomb attacks, hostage-taking, or violent acts endangering the safe navigation of a ship or airplane, normally entail grave consequences for the victims. Political motivation is an essential part of the understanding of terrorist

150. Triffterer, supra note 59, at 163. Alex P. Schmid has described typical terror violence as ‘acts of one-sided violence which are often unprovoked and which hit often uninvolved civilians’, Alex P. Schmid, ‘Why Terrorism? Root Causes, Some Empirical Findings, And the Case of 9/11’, presentation at the International Conference ‘Why Terrorism’ addressing the conditions conducive to terrorism organised by the Council of Europe on 25–26 April 2007, at 7, available at (visited 4 January 2010). 151. UN Doc. A/RES/49/60, para. 3 and subsequent resolutions on Measures to Eliminate International Terrorism. 152. Terrorist Bombings Convention, Article 5. 153. Terrorist Financing Convention, Article 6. 154. UN Doc. S/RES/1566(2004), para.3. 155. The Council of Europe Convention on the Prevention of Terrorism, Warsaw, 16 May 2005, CETS No. 196, Article 11.

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crimes as distinct from piracy or organised crime,156 and a feature consistently emphasised in the UNGA resolutions on terrorism.157 The crime of terrorism, understood as state terrorism, has occupied a central place in the codification work on Crimes against the Peace and Security of Mankind, and has also been recognised in the jurisprudence of international criminal tribunals.158 It may be recalled that Cassese’s definition of the customary law crime of terrorism only comprises ‘serious acts of State-sponsored or -tolerated international terrorism’. As he has explained: the element of State-promotion or State-toleration, or even State acquiescence due to an inability to eradicate the terrorist organization, seems crucial for elevating the offence to the rank of an international crime. This is so because it is at this stage that terrorism stops being criminal activity against which States can fight by bilateral or multilateral cooperation, to become … a phenomenon of concern for the whole international community and a threat to the peace.159

At the same time, the constitutive elements of the definition of a terrorist act in the draft UN Comprehensive Convention on the Suppression of International Terrorism include a serious violent act committed for political purposes and displaying a terrorist purpose (‘intention’) without any reference to state action.160 In fact, the draft Comprehensive Convention also explicitly excludes certain forms of state action from its scope of application.161 State involvement in terrorist crimes has been a diminishing trend in the past decades, and international terrorism is largely viewed as private violence. To require some degree of state involvement in addition to the other elements of an act of terrorism, as Cassese does, would arguably seem retrograde, also in view of the developments within ICL sensu stricto. State involvement has historically been an essential feature of all the Nuremberg crimes, but a gradual relaxation of this requirement has 156. See M. Cherif Bassiouni and Eduardo Vetere, ‘Organized Crime and its Transnational Manifestations’, in M.Cherif Bassiouni (ed.), International Criminal Law, Vol. I Crimes, (Transnational Publishers Inc.: Ardsley, 1999) 883–903 at 892–894. 157. In 1994, the UN General Assembly adopted a landmark Declaration, which defined terrorist acts as ‘criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes’, UN Doc. A/RES/49/60, para. 3. The approach of the anti-terrorist conventions and protocols is less clear in this respect as those instruments do not pay attention to the particular motives of the perpetrator but apply equally to acts committed for private purposes and to those committed for political purposes and intended to intimidate. 158. For the analysis of the jurisprudence, see Arnold, The ICC as a New Instrument, supra note 8. 159. Cassese (2004), supra note 130, at 223 (original emphasis). 160. Supra note 131. 161. Thus continuing the tradition of the most recent UN anti-terrorist conventions, which consistently exclude activities of armed forces of a state from their scope of application. For the controversy concerning the exact formulation of such a clause in the draft Comprehensive Convention, see Lehto, supra note 63, at 31-42.

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taken place recently. Crimes committed by non-state actors are prevalent also in the jurisprudence of international criminal courts and tribunals. While it is still debated what characteristics the organisation responsible for the ‘organisational policy’ in crimes against humanity should display, i.e. whether it has to be a statelike entity with territorial control or ambitions, the direction in international criminal law has been to cover more broadly crimes committed by armed groups and criminal gangs.162 There is also a more subtle aspect of state involvement that opens interesting avenues to analysing the political aspects of terrorist crimes. Again, the most thorough consideration of the relationship between individual criminal acts and political ideologies has been carried out with regard to the core crimes. As pointed out above, one of the most perplexing features of genocide and crimes against humanity is that under certain circumstances almost anyone can become a perpetrator. The psychological techniques that make this possible have been discussed in various criminological theories that try to explain political macrocriminality. According to Neubacher, such ‘neutralisation’ techniques include three components: denial of responsibility, denial of the victim and appeal to higher loyalties.163 All these techniques seem relevant also with regard to terrorist crimes: denial of responsibility is related to the external circumstances that are claimed to justify the act;164 denial of victim is related to the depersonalisation of the immediate target as a representative of the larger group or collectivity; and appeal to higher loyalties is related to the cause – the political agenda – the terrorist acts are said to serve. In fact, it can be claimed that the existence of a larger group of potential sympathisers is the distinguishing feature of a terrorist group.165 The political context in which collective crime – including terrorism – takes place provides an essential environment in which such techniques can work: ‘The perpetrators of state crime are often not considered criminal by those in their own society, since their behaviour conforms to the expectations of others 162. According to the ICTY, ‘individuals with de facto power or organised in a criminal gang’ could be held responsible for conceiving and carrying out a systematic attack against a civilian population. Prosecutor v. Tihomir Blaskić, Case No. IT-95-14, Judgement of 3 March, 2000, para. 205. 163. Frank Neubacher, ‘How Can it Happen that Horrendous State Crimes are Perpetrated?’, 4 Journal of International Criminal Justice (2006) 787–799 at 792. 164. Fletcher has included ‘absence of guilt’ among the characteristic features of the crime of terrorism. George P. Fletcher, ‘The Indefinable Concept of Terrorism’, 4 Journal of International Criminal Justice (2006) 894–911 at 909–910. 165. Jean-François Mayer, ‘Terrorism and Religions: Continuity and Change in Political Violence’, in Ghislaine Doucet (ed.), Terrorism, Victims and International Criminal Responsibility (SOS Attentats, Imprimerie Floch: Mayenne, 2003) 28–35 at 33. Schmid, supra note 149, at 32: ‘The terrorists’constituency and the constituency of their opponents (the citizens of those governments under attack) are in a way the key factors in determining whether terrorism has a future’.

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in that society’.166 While the state is instrumental in defining the political aims, the national identity, the identity of the ‘enemy’ group or state as well as other justifications essential for collective violence,167 similar ideological backing can be provided in a sub-national or trans-national context by terrorist groups claiming to act on behalf of a higher cause. The particular threshold for the ICC crimes, it has been noted, is that they threaten the fundamental values of the international community.168 The most frequently cited examples of such values, namely international peace and security and the basic humanitarian values, are nevertheless not of great help when trying to explain why terrorism should be regarded as a ‘domestic’ or a ‘transnational’ crime. The determination that terrorism constitutes a threat to international peace and security can be tied to the practice of the UN Security Council. That terrorism constitutes a threat, or even ‘one of the most serious threats’, to the international peace and security, has been confirmed repeatedly by the Security Council resolutions, and additionally by the Outcome Document of the 2005 UN Summit.169 In sowing violence indiscriminately among civilians, terrorism also goes against the basic humanitarian values. The specific features of the core crimes – the scale, seriousness and particular atrocity of these crimes, their potential or capability to affect the whole society, as well as their collective character – have also given rise to particular legal policy requirements. The new developments in the jurisprudence of the UN ad hoc tribunals include a focus on the political and military leaders who have played a crucial role in provoking a conflict or a campaign of violence, and the special participation modes and theories of collective liability used in order to establish their criminal responsibility.170 Such autonomous developments affecting the scope and conditions of criminal responsibility have been seen justified because of the particular characteristics of the core crimes, which lay the basis for the nature of ICL as an independent branch of international law, and the principle of the autonomy of international law vis-à-vis national law. It may be assumed, 166. Neubacher, supra note 163, at 789. 167. Ibid. 168. Supra note 3. Boister, supra note 23, at 967–968, has noted that transnational offences differ from international offences in that ‘the threat suppressed is not sufficiently serious to engage a sufficient consensus in international society to use ICL to suppress it’. 169. For an analysis of the UNSC practice with regard to the determination of terrorism as a threat to peace, see Lehto, supra note 63, at 345 – 352. See also the Outcome Document of the 2005 UN Summit, supra note 136. 170. The specific approaches to the framing of individual criminal responsibility for the core crimes, include, in particular the concepts of conspiracy, command responsibility and joint criminal enterprise. See van Sliedregt, supra note 60. See also William A. Schabas, ‘Enforcing International Humanitarian Law: Catching the Accomplices’, 83 International Review of the Red Cross (2001) 439–459 and ‘Mens Rea and the International Criminal Tribunal for the Former Yugoslavia’, 37 New England Law Review (2003) 1015–1036.

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consequently, that where the scope of criminal responsibility for international crimes is broadened, this reflects and has been accepted because of a changed perception of the crimes in question, the values attacked, the harm caused, or the social danger posed by them. At the same time, the increased destructive capability of terrorist groups has redirected the legal responses to terrorism. As the most important expressions of the new trend, pro-active anti-terrorist criminalisations target different kinds of material support to terrorism, such as financing,171 logistic support,172 recruitment and training. 173 The impact of the new criminalisations on individual criminal responsibility is comparable to that of the specific modes of liability applied to the core crimes. Both broaden the area of punishable action quite considerably and can be described in terms of ‘indirect responsibility’, or a tendency to re-collectivise the criminal liability.174 The rationale of the new anti-terrorist criminalisations, similar to that of the core crimes, is that terrorist acts, in particular if they are large-scale or widespread, require protracted preparation and a plurality of persons who contribute in different ways to the ‘terrorist enterprise’. They reflect a changed perception of terrorist acts as a security threat which justifies early intervention and the use of broad criminalisations for that purpose.

6. Conclusions The distinction between the core crimes and other international crimes has been widely accepted, at least as an organisational principle that serves useful purposes in the emerging system of international criminal law. As such, the distinction is one created by the doctrine, but it has been reinforced by the fact that international prosecution, thus far, has concentrated on the four core crimes. This means that there has been an institutional side to the law of the core crimes that has ensured it an internal coherence and served to distinguish it from other international crimes. International prosecution, while purely a procedural issue, has thus affected the perception of the hierarchy of international crimes. Despite the important developments during the past ten to fifteen years, the ‘Nuremberg legacy’ and the post-World War II jurisprudence still constitute the foundational image of the core crimes. While mass-scale terrorism presents a number of common traits with the ICC crimes, it has so far not been recognised as a core crime. Most importantly, the customary status of the definition of terrorism applicable to criminal prosecu171. Terrorist Financing Convention. 172. 2005 Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation. 173. Council of Europe Convention on the Prevention of Terrorism. 174. For this argument, see Lehto, supra note 63.

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tion is a matter of debate. At the same time, the controversy is limited to certain exceptions to the generic definition of a terrorist crime rather than to the definition as such, and most of the elements for a customary law crime of terrorism are available. As for the terrorist treaty crimes, their nearly universal ratification supports a claim of a customary status. As a matter of fact, already in 1997 it was considered that the conventions on aerial hijacking and hostage-taking could have attained such a status.175 Since then, all the UN anti-terrorist conventions and protocols adopted before 2000 have attained an increasing number of ratifications and approached quasi-universality. It may thus be submitted that these conventions and protocols have a legal value that goes beyond the strict treaty dimension because they ‘either restate customary rules or are indicative of customary rules, or have contributed to the formation of customary rules’.176 It should be recalled that a somewhat similar situation existed in the mid-1990s with regard to certain crimes that were to be included in the subject-matter jurisdiction of the ICC. While the customary status of these crimes was ‘considered incontestable and uncontroversial … questions of definition remained’.177 The situation of the crime terrorism can be compared to that of some of the ICC crimes, as they were before the adoption of the Statute of the Court, also in the sense that a last codification effort would be needed to settle its status – either by adopting the UN Comprehensive Convention or by extending the jurisdiction of the ICC to terrorism.

175. See David Freestone, ‘International Cooperation against Terrorism and the Development of International Law Principles of Jurisdiction’, in Rosalyn Higgins and Maurice Flory (eds), Terrorism and International Law (Routledge: London, 1996) 50–67 at 60. 176. Cassese, supra note 3, at 130. He claims that even the terrorist treaty crimes should therefore be characterised as internationl crimes proper. 177. Crawford, supra note 33, at 32–33.

Of Rights and Responsibilities: The Right of Humanitarian Intervention Hannes Peltonen* ABSTRACT: The various debates on humanitarian intervention have neglected an important question: What kind of a right is it? This article seeks to answer this question by drawing from a Hohfeldian typology of rights in order to examine the relationship between the right of humanitarian intervention and the responsibility to use it. It is argued that the kind of right in question depends on the right-holder; there are multiple rights to consider. While the right itself may not imply a responsibility or a duty, the act of authorization (and hence the possession of the right of humanitarian intervention) implies a responsibility to use it. This article bridges the earlier discussions with the contemporary debates regarding responsibility to protect by drawing attention to the complex relationship between rights and responsibilities. On a different level, the article serves to remind how binary approaches hide crucial details. KEYWORDS: humanitarian intervention, rights, responsibility, responsibility to protect, R2P, RtoP, Hohfeld.

1. Introduction In 2001, the International Commission on Intervention and State Sovereignty (ICISS)1 fundamentally reformulated the debate over humanitarian intervention.2

*

1. 2.

Ph.D., Assistant Professor, Kyung Hee University, Republic of Korea. The author would like to thank particularly Friedrich Kratochwil, Jan Klabbers, Martin Scheinin, and the anonymous reviewers and editors for their valuable comments and suggestions. Errors of fact or judgment are, as always, exclusively mine. International Commission on Intervention and State Sovereignty (hereinafter ICISS), The Responsibility to Protect (International Development Research Centre: Ottawa, 2001). Humanitarian intervention is understood in this paper as the use of force across state borders by a state or group of states (such as a coalition of states or an international organization such as the UN) aimed at preventing or ending a grave humanitarian crisis of individuals other than its or their citizens without the permission of the state(s) within whose territory force

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This debate had begun in the mid-1970s,3 and it mainly focused on defining humanitarian intervention and whether humanitarian interventions could be legally or legitimately executed. The latter focused on whether or not there was a right to humanitarian intervention (i.e. whether for instance states could use force across borders for humanitarian purposes), and if so, who possessed that right. In recent years, however, the earlier language of ‘rights’ has been substituted with ‘responsibilities’. The Responsibility to Protect (RtoP) report argues that we should move away ‘from sovereignty as control to sovereignty as responsibility in both internal functions and external duties of states’.4 Where previously the rule of non-intervention and the general ban on the use of force had hindered at least the theory of humanitarian intervention, this conceptual gambit paved the way for a new understanding of the community of states; one where membership included not only rights but also responsibilities: ‘While the state whose people are directly affected has the default responsibility to protect, a residual responsibility also lies with the broader community of states’.5 Allegedly, the responsibility to protect, inherent in sovereignty, may be transferred to the broader community of states, thus not only enabling humanitarian intervention but in fact demanding it in some cases. Without taking issue with the Commission’s report, one should note that little has changed from the perspective of international law. Despite its popularity among academics and some politicians and practitioners, one cannot say that the responsibility to protect has been accepted for example as jus cogens, as international

3.

4. 5.

is applied and in a manner which is consistent with the humanitarian aims of the intervention. I shall use the singular ‘debate’ rather than the plural, even though there was no unified, single debate on the issues related to humanitarian intervention. My use of the singular signals how these various discussions fell under the same theme. Since the debate has been extensive, it is impossible to provide an exhaustive overview. See e.g. Jack Donnelly, ‘Human Rights, Humanitarian Crisis, and Humanitarian Intervention’, 48 International Journal (1993) 607-40; Martha Finnemore, ‘Constructing Norms of Humanitarian Intervention’ in Peter J. Katzenstein (ed.), The Culture of National Security: Norms and Identity in World Politics (Columbia University Press, 1996) 153-85; Thomas M. Franck and Nigel S. Rodley, ‘After Bangladesh: The Law of Humanitarian Intervention by Military Force’, 67 American Journal of International Law (1973) 275-305; Jeff L. Holzgrefe, ‘The Humanitarian Intervention Debate’ in Jeff L. Holzgrefe and Robert O. Keohane (eds), Humanitarian Intervention: Ethical, Legal, and Political Dilemmas (Cambridge University Press, 2003) 15-52; Brian D. Lepard, Rethinking Humanitarian Intervention: A Fresh Legal Approach Based on Fundamental Ethical Principles in International Law and World Religions (Pennsylvania State University Press, 2002); Fernando R. Tesón, Humanitarian Intervention: An Inquiry into Law and Morality (Transnational Publishers: New York, 1988); R.J. Vincent, Nonintervention and International Order (Princeton University Press, 1974); Nicholas J. Wheeler, Saving Strangers: Humanitarian Intervention in International Society (Oxford University Press, 2000). ICISS, The Responsibility to Protect, supra note 1, at 13 (emphasis in original). Ibid., at 17.

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custom, or as an obligation erga omnes. In other words, from the international legal perspective one still needs to focus on the rule of non-intervention, which is undeniably a focal part of international law, as well as with such questions as when it is legitimate to bend the rule of non-intervention, even if there is no legal right to intervene. Moreover, the need to focus on the rule of non-intervention brings back old questions about the right of humanitarian intervention. It is not my purpose to rehearse the various arguments about the right of humanitarian intervention, especially because they have been well documented.6 Also, perhaps it is not too far off the mark to say that the heated debates during the 1990s ended at least partially due to mutual exhaustion rather than in the victory of the ‘better’ argument. In fact, one of the aims of the ICISS report was to move the debate onto a new level by changing the terms of the discussion, thus opening new unexplored avenues. In contrast, my purpose is to ask a small but unasked question about the nature of the right in question. My return to rights is not intended to resuscitate a dead discussion but to highlight how the previous discussions ignored a significant question. In addition, I should think that simply rephrasing the discussion in terms of responsibilities cannot do away with a connection with rights, since responsibilities often assume the existence of rights. It is surprising that the earlier debates did not engage in an analysis of the right’s more specific structure. In other words, the discussions assumed that a right is a right, and the most significant question was whether it existed. For the most part, it seems that contributions to the debates began by defining humanitarian intervention, after which they proceeded to argue whether or not it was (morally) right to execute humanitarian interventions, and whether or not there was a (legal) right to carry out them. Apparently, rights were assumed to be rather straightforward – whether for disciplinary or other reasons – without acknowledging that there are different kinds of rights as, for example, Hohfeld pointed out in 1919.7 Thus, given that the existence of the right of humanitarian intervention is contested and that there are different kinds of rights, this essay assumes that such right exists in order to ask the simple but so far unasked question: what kind of a right is the right of humanitarian intervention? Moreover, this approach allows killing two birds with one stone: since some rights correlate with responsibilities (as the discussion will show), one can also address the question whether there is a responsibility to intervene in grave humanitarian crises.8 On a more abstract level, 6. 7. 8.

See e.g. the references in supra note 3. Hohfeld is perhaps the best known pioneer in this respect. See Wesley N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (first published 1919) (reprint of a 1964 edition), David Campbell and Philip Thomas (eds) (Ashgate: Aldershot, 2001). This responsibility would be different from the responsibility to protect as advocated by the

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this essay serves as a reminder that binary approaches are usually too simplistic (whether or not the right exists), that one size does not fit all (there are different kinds of rights), and how relying on physical analogies sometimes hinders our understanding of the social world. The latter becomes evident from my discussion concerning a transfer of the right. Certain assumptions and choices are necessary in this project. First, for heuristic purposes this paper assumes that the right of humanitarian intervention exists. This assumption seems justified because it allows solving at least some of the questions that follow from the right’s presumed existence. Second, in this article emphasis is placed on the United Nations system, particularly its Charter and the Security Council. Finally, I acknowledge that the Security Council will be presented in simplistic terms. Obviously, the Council has a complex structure and it is formed of diverse members, each with their own agendas and concerns. Moreover, the Council members are unequal both in and outside sessions, while political bargaining takes place most of the time. Nevertheless, for present purposes, the Security Council is considered as a single actor. Yet, even though it will be argued that the Security Council is the best right-holder candidate for the right of humanitarian intervention, it should be self-evident that the individual members of the Council would not possess the right but that the Council as a whole would be the right-holder. The argument of this article is structured in the following way. The first section discusses a Hohfeldian typology of rights. Although the typology is not the only available one, it is useful in analyzing the questions that arise when the existence of the right of humanitarian intervention is posited. The second section focuses on the most plausible right-holder candidates as a precondition for determining the right’s characteristics in more detail. Thus, in the third section, the previous two issues are combined and it is argued that the right’s contents depend on the right-holder. The significance of this point is brought out in sections four and five, before general conclusions.

2. A Typology of Rights There are several ways to consider rights. For example, H.L.A. Hart’s famous division between special and general rights is one way of distinguishing between different rights.9 For present purposes, however, Hart’s division is less helpful. For Hart, general rights ‘are rights which all men capable of choice have in the absence of those special conditions which give rise to special rights’.10 It would ICISS, but if the answer to the question was positive, it would buttress the Commission’s report. 9. Herbert L.A. Hart, ‘Are There Any Natural Rights?’, 64 Philosophical Review (1955) 175-191. 10. Ibid., at 188.

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seem that the right of humanitarian intervention would be a special right, since it is neither desirable nor practical that the right of humanitarian intervention would be held by all. For one, would we feel comfortable if for example North Korea had a legal right to intervene in other countries just as long as the use of force was justified on humanitarian grounds? Second, if every actor had the right, what would happen to the Security Council that is charged with the maintenance of international peace and security? Hence, if not all possessed the right, it would be a special right, but such a conclusion appears to result in a predictable dead end. Moreover, Hart’s binary division seems too simplistic given Hohfeld’s nuanced work over three decades earlier.11 Those familiar with Hohfeld and his work are quick to note that his typology was first developed in an article already in 191312 and consequently developed further in its book version published in 1919.13 This was a time in the United States when public law was to an extent unrecognized, unknown, or perhaps even unwanted.14 Hohfeld’s typology was thus primarily aimed at analyzing private law relations, and one might object to my use of a tool that was designed for private law in dealing with questions related to public law. To answer possible objections, there is little new in public law ‘borrowing’ from private law. The locus classicus is perhaps Lauterpacht’s Private Law Sources and Analogies of International Law.15 It is not unusual to draw inspiration from the concepts and ideas of private law and then to apply them in the public – whether national or international – sphere. Moreover, I focus on distinguishing between different kinds of rights with the aim of pointing out that not all of them are from the same cloth. For this purpose, Hohfeld’s typology gives me something with which to ‘go on’, although it seemed necessary to slightly modify his original typology (as will be shown below). Hohfeld identifies a plurality of rights and considers their – as he puts it – ‘correlates’ such as duties which correspond with rights as claims. His typology allows for an extensive discussion on what kinds of rights exist and on what basis they differ. For the present purposes, this is advantageous because by using Hohfeld’s division it is possible to assess not only the right in question but also to give proper foundation for a deliberation about the consequences of the existence of the right of humanitarian intervention as this rather than that kind of a right. Hohfeld’s typology has two main dimensions. One is the distinction between rights in rem and in personam, or between multital and paucital rights as he calls 11. Naturally it is possible to have something interesting to say by using Hart’s typology, but it seems more justified to begin with an approach that is already initially more promising. 12. Wesley N. Hohfeld, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’, 23 The Yale Law Journal (1913) 16-59. 13. Hohfeld, Fundamental Legal Conceptions, supra note 7. 14. I thank Jan Klabbers for this insight. 15. Sir Hersch Lauterpacht, Private Law Sources and Analogies of International Law: With Special Reference to International Arbitration (Longmans, Green and Co. Ltd.: London, 1927).

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them. Multital and paucital rights differ as regards the group that holds a given right’s correspondent as well as in relation to the nature of the duty – positive action or omission – that may relate to a given right.16 In the event that a right implied a duty on others to commit a positive act, which could not be satisfied by a mere omission, the right would be paucital or in personam.17 A good example of such rights arises from contracts: if Anne owes Bill hundred dollars, Bill has the right to expect that Anne pays him this amount. Correspondingly, Anne has the duty to pay Bill, and this duty requires positive action. In contrast, property rights illustrate rights in rem or multital rights. Property rights imply duties on all other persons, including even future or hypothetical persons. These kinds of rights hold ‘not against some specific namable person or persons but rather, in the legal phrase, against the world at large’.18 Naturally, in ‘saying that “the whole world” has a duty to stay off my land, all I can mean, of course, is that any person in a position to enter my property has a duty to stay out’.19 Clearly, an omission suffices to fulfill the duty to stay out.20 The second dimension of Hohfeld’s typology includes his main contribution, namely that ‘the term “rights” tends to be used indiscriminately to cover what in a given case may be a privilege, a power, or an immunity, rather than a right in the strictest sense’.21 Thus, for Hohfeld there are four different kinds of rights. Rights in their strictest sense are best understood as claims, which imply correlating duties on others.22 The correspondents of the other three – rights as privileges, as powers, and as immunities – are ‘no-right’, liability, and disability.23 Some examples elucidate the differences between these rights and their correspondents. Rights as privileges24 refer to the possibility of doing something. Thus, if Anne gives Bill permission to use her car, if he so wishes and if she is not using it herself, 16. In other words, rights as claims imply duties on other actors. In addition to Hohfeld, see e.g. Timothy Dunne and Nicholas J. Wheeler, Human Rights in Global Politics (Cambridge University Press, 1999); Joel Feinberg, Rights, Justice, and the Bounds of Liberty: Essays in Social Philosophy (Princeton University Press, 1980). 17. Feinberg, Bounds of Liberty, supra note 16, at 131. This point, however, is contentious or at least debatable, because it might be nonsensical to distinguish between positive and negative acts in this context. After all, even an omission requires one to ‘act’ at least in the sense of choosing not to do something. 18. Ibid., at 134. 19. Ibid. 20. One might make the argument that not entering would require action too. For example, for me to avoid entering your property but to reach my destination on the other side of your land, I might have to take a long detour. 21. Hohfeld, Fundamental Legal Conceptions, supra note 7, at 12. 22. Ibid. See also Judith J. Thomson, The Realm of Rights (Harvard University Press, 1990) at 39-43. 23. Hohfeld, Fundamental Legal Conceptions, supra note 7, at 12. 24. Privileges are sometimes called ‘weak rights’. See e.g. Thomson, Realm of Rights, supra note 22, at 45-52.

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Bill has the right to use it but he has no duty to make use of the car.25 Clearly, Anne cannot complain if Bill actually takes the car, when Anne is not using it, but neither can Bill complain if the car is unavailable. In other words, Bill has the privilege to use the car, and Anne has a corresponding no-right against Bill taking the car, when she is not using it herself. Hohfeld’s right as power is ‘an ability to cause, by an act of one’s own, an alteration in a person’s rights, either one’s own rights or those of another person or persons, or both’.26 Again, property rights provide a fitting example: As a property owner, I have the power to give rights of passage or entry to others. In addition to powers, one could also possess ‘meta-powers’, a concept which Hohfeld himself did not use,27 but which Thomson defines as ‘the ability to cause oneself and others to acquire or lose powers’.28 Persons in positions of authority, for example judges, possess normally not only powers but also meta-powers in this sense. For instance, when passing judgment on the rightful owner of a piece of land, a judge exercises meta-powers by awarding property rights containing powers to one of the claimants. There is, however, another way to conceive meta-powers: a meta-power could also denote the ability to determine how a given right is to be used and what are its limits.29 For example, when a judge determines the rightful owner of a piece of land, she awards not only property rights to the claimant but also determines the limits to how those rights can be exercised, namely within the limits set by law. Moreover, the judge might set further limitations, if the law allowed and if the circumstances called for them.30 The correspondent of power is liability, which Hohfeld understood as ‘responsibility’, as the ‘opposite of immunity’, or as ‘subjection’.31 As an example, Hohfeld describes a letter in which A offers to sell a piece of land to B, thus creating a potential power to B and a liability to A, namely B has the power to impose obligations ex contractu on A and herself by accepting the offer, while A is liable to follow through with his offer.32 25. Hohfeld uses a salad example, where Anne would give Bill permission to eat her salad if he can. In this example, Anne could not complain if Bill eats the salad, but neither could Bill complain if Anne managed to hold so fast on to the plate that he could not eat it. 26. Thomson, Realm of Rights, supra note 22, at 57. 27. For instance in the earlier article published in 1913 one can see traces of the idea of ‘metapowers’ albeit with reference to an ‘abandoned object’. See Hohfeld, ‘Some Fundamental Legal Conceptions’, supra note 12, at 45ff. 28. Thomson, Realm of Rights, supra note 22, at 58. 29. I owe the second interpretation to Friedrich Kratochwil. 30. Here, naturally, a curious aspect of law is revealed, for it might appear that the law itself has powers and meta-powers, but pursuing this train of thought is best left for a project dedicated to such questions. 31. Hohfeld, Fundamental Legal Conceptions, supra note 7, at 27. 32. This is a simplified description of Hohfeld’s example, but it ought to illustrate the point. See Hohfeld, ‘Some Fundamental Legal Conceptions’, supra note 12, at 49-50.

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The last of Hohfeld’s four kinds of right is rights as immunities, which provide protection against rights as powers. To explain; ‘for X to have an immunity against Y is just for Y to lack a power as regards X’.33 Hohfeld himself puts it in an alternative manner: ‘an immunity is one’s freedom from the … power of “control” of another’.34 Fundamental human rights serve as examples. They provide protection from one’s state’s legal or physical abuse, or at least this is their purpose. In any case, immunities correlate with disabilities, namely with the absence of authority.35 There is, however, a fifth distinction that merits attention. According to Thomson, Hohfeld neglected a difference between privileges and liberties in his typology.36 Where Hohfeld saw the two as synonymous, Thomson distinguishes between privileges and liberties, because in her opinion liberties entail a claim of non-interference while privileges make no such claims. The earlier car example illustrates this idea better. In the example, Bill has the right to use Anne’s car, if he so wishes, and if Anne is not using it herself. Anne makes no assurances as to the availability of the car. Thus, Anne is in a position to frustrate Bill’s desire or need to use the car without breaking her promise by simply using the car all the time, or not using it when Bill would be unable to drive it anyway. It is this detail which urges Thomson to argue that Bill is not at liberty to use the car, and hence Bill’s right cannot be equaled with a liberty but with a privilege. She argues that we cannot say that a person ‘is at liberty to do a thing unless both he is under no duty at all to not do it (thus has a privilege against everyone doing it) and everyone else is under a duty toward him not to interfere with his doing it’.37 In other words, for us to be able to say that Bill has a right as liberty to use the car, Anne would have had to promise that the car is available whenever he would like to use it. Thus, rights as liberties may be described as ‘compound rights’, or rights that inherently contain other rights, which also imply a duty of non-interference. This last distinction between privileges and liberties may appear scholastic. Yet, as will be shown later, at least in relation to the present discussion on the right of humanitarian intervention, this distinction is worthwhile. In sum, the two dimensions of this Hohfeldian (but not Hohfeld’s)38 typology of rights can be brought together in a matrix as shown in Table 1. Since multital (in rem) rights and paucital (in personam) rights are not further types of rights, 33. 34. 35. 36. 37. 38.

Thomson, Realm of Rights, supra note 22, at 59. Hohfeld, Fundamental Legal Conceptions, supra note 7, at 28. Ibid., at 27 and ff. Thomson, Realm of Rights, supra note 22, at 53. Ibid., at 53-54. To underline, the proposed typology is not Hohfeld’s typology, because I have modified his original work by including Thomson’s distinction between rights as privileges and as liberties.

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such as claims or privileges, but two different versions of claims or privileges (and so on), the horizontal axis of the table is divided into multital and paucital. On the other hand, the vertical axis is divided into claims, privileges, liberties, powers, and immunities. Thus, there are ten different kinds of rights in this typology as is illustrated by the matrix in Table 1. With this typology of rights, the next step is to determine who the right-holders are in regards to the right of humanitarian intervention and which of the rights presented are relevant to the right-holders in question. “Version” of a Right Kind of Right

In rem or multital

In personam or paucital

Claim Privilege Liberty Power Immunity

Table 1: Modified Hohfeldian typology of rights.

3. Who are the Right-Holder Candidates? Having outlined my typology of rights, it is important to consider who would hold the right before moving on to determining the right’s ‘architecture’ in more detail. If the right exists, there must also be a right-holder, and in this case there are three main alternatives: 1) no one,39 2) the Security Council,40 and 3) ‘concerned’ actors whether unilaterally, multilaterally, or through regional organizations, or the General Assembly acting under the Uniting for Peace procedure.41 Given the contemporary political realities, the Security Council is the strongest candidate for a number of reasons. First, by signing and ratifying the UN Charter, UN member states have forfeited to the Security Council their right to 39. See e.g. Franck and Rodley, ‘After Bangladesh’, supra note 3. 40. This is perhaps the widest held position, even by some of the so-called legal restrictionists in cases where there is a threat to international peace and security. For a discussion, see e.g. Wheeler, Saving Strangers, supra note 3, at 40-48. 41. Terry Nardin, ‘The Moral Basis of Humanitarian Intervention’, 16 Ethics and International Affairs (2002) 57-70.

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use force except in self-defense.42 Second, the Council can use its discretion in determining which situations constitute a breach of or a threat to international peace and security, and hence it effectively determines its own jurisdiction, including when force can be used in order to maintain or restore international peace and security.43 Thus, in terms of the use of force except in self-defense – something that humanitarian intervention is not – Security Council authorization is required in order for it to be legal under the UN Charter. Finally, there are precedent cases which can be taken to confirm a Security Council ‘practice’ of humanitarian intervention, although the Council has never used the term itself. One of the clearest examples is Resolution 794, which dealt with the situation in Somalia and authorized the United States to take military action for humanitarian purposes under a Chapter VII mandate.44 Another example is Resolution 929, which authorized the French-led Operation Turquoise in 1994 to use ‘all necessary means to achieve the humanitarian objectives set out’ in relation to the genocide in Rwanda.45 The use of Chapter VII powers requires ‘the existence of any threat to the peace, breach of the peace, or an act of aggression’ as determined by the Council itself.46 Here, it is naturally highly relevant how the Council has interpreted the scope and meaning of these three concepts. An examination of Security Council resolutions reveals that there has been a significant shift since the early 1990s – undoubtedly due to the end of the Cold War and the increasing importance of human rights norms – by the Council to interpret also largescale internal humanitarian crises as constituting a threat to or a breach of international peace and security.47 In fact, one can note a significant change in the rhetoric that in turn has clear consequences on how the relevant issues are framed and subsequently dealt with. To give a few examples, the president of the Council stated in 1997 that a ‘massive displacement of civilian populations in conflict situations may pose a serious challenge to international peace and security’.48 Three years later, another president of the Council acknowledged that the Security Council ‘has the responsibility to address humanitarian issues relating to situations of conflict and to take appropriate action’.49 In the same document, the representative of France affirms that the Council has the 42. 43. 44. 45. 46. 47.

See Article 51 of the UN Charter. See e.g. Articles 34, 37, and especially Article 39 of the UN Charter. SC Res. 794, 3 December 1992. SC Res. 929, 22 June 1994. Article 39 of the UN Charter. Hannes Peltonen, Justified Non-Intervention? International Responsibility and Grave Humanitarian Crises (European University Institute: Florence, 2008). 48. United Nations Security Council, Statement by the President of the Security Council, UN Doc. S/PRST/1997/34 (1997). 49. United Nations Security Council, Maintaining Peace and Security: Humanitarian Aspects of Issues before the Security Council, UN Doc. S/PV/4109/2000 (2000).

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primary responsibility ‘to deal with situations in which violations of international humanitarian law and human rights threaten international peace and security’.50 This rhetorical change is reflected inter alia in the above resolutions concerning Somalia and Rwanda. Another example is the African Great Lakes region in 1996, where the Security Council was ‘[p]articularly concerned at the humanitarian situation and the large-scale movements of refugees and internally displaced persons, [and deeply] concerned at the obstacles to the efforts of all international humanitarian agencies to provide relief and assistance to those in need’. The Security Council determined ‘that the magnitude of the present humanitarian crisis in eastern Zaire constitutes a threat to peace and security in the region’.51 Although the protective provisions of Article 2.7 of the UN Charter continue to shield states from external interference, the Security Council is not bound by the rule of non-intervention while using Chapter VII powers. Thus, in a situation where the Security Council interprets its jurisdiction to cover grave internal humanitarian crises, it can use Chapter VII powers and authorize interventions carried out for humanitarian purposes. Here, further support is given by the Council’s mentioned practice as regards intra-state humanitarian crises as well as by the absence of any serious and consistent objections to this practice from the majority of states.52 Furthermore, in addition to Chapter VII rules, the protection and promotion of internationally recognized human rights – as outlined in the UN Charter and in various international human rights treaties – lends support for the conclusion that the Council is acting within its powers when intervening in internal crises. In contrast, the other two options (that no one or virtually anyone has the right of humanitarian intervention) are less convincing. Obviously, as there seems to be at least one actor, the Security Council, that arguably possesses the right of humanitarian intervention, it seems plausible to ignore the first option. As to the third candidate, Byers and Chesterman remind us that arguments alleging the legality of unilateral interventions require unwarranted assumptions about the

50. Ibid. 51. SC Res. 1078, 9 November 1996. Moreover, cyclone Nargis, which devastated Burma’s farmlands and left an approximate one million people homeless in May 2008, provides a more recent example. The Burmese government’s refusal to allow entry to the country by foreign aid agencies including the UN was considered to invoke a responsibility to protect (and thus to sanction a possible intervention with force if necessary) by at least France in the Security Council (a personal communication with Prof. Toshiya Hoshino, who was present at the Security Council session). 52. It is an empirical question whether there have been any consistent objections. Moreover, although perhaps from a purely theoretical perspective or from the Charter’s perspective it may not be relevant whether states object to Security Council practice, a consistent objection by a majority of states would surely indicate that no opinio juris supports the practice.

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international legal system.53 There are those who might claim that multilateral interventions are somehow ‘more legal’ than unilateral interventions,54 but as Michael Walzer aptly points out, multilateralism per se is not a real legitimating factor,55 much less a ‘legalizing’ one. Although unilateral and multilateral interventions without Security Council authorization might be legitimate, as will be discussed below, they do not wield similar legality as Council authorized action. In terms of legality, the Security Council is hence the best candidate for being the right-holder of the right of humanitarian intervention. That interventions bypassing the Security Council are not legal is quickly noted. First, there is no clear international treaty law which would support interventions without Security Council authorization. Second, one is hard pressed to find uncontroversial support for the argument that unauthorized humanitarian interventions are legal under customary international law. The only recent case, Kosovo, is too controversial to lend credibility to such claims, while it is equally doubtful whether the interventions in the 1970s or earlier were actually humanitarian, despite the allegations made to that effect from the 1990s onwards.56 The Kosovo case, however, highlights a point worth further attention, namely that interventions without Council authorization may still be considered legitimate. The Independent Commission on Kosovo concluded that NATO action was illegal despite being legitimate.57 NATO action was illegal both because it did not receive prior Security Council authorization, and because it was not a case of self-defense. Yet, for the Commission, it was legitimate because it was justified on moral and humanitarian grounds, because all (reasonable) diplomatic avenues had been exhausted, and because it resulted in liberating the majority population in Kosovo from Serbian oppression.58 Evidently, the Commission used a linguistic twist in order not to condemn NATO action in Kosovo or restrict available options in the future. Simultaneously, the Commission managed to outflank the legal/illegal dichotomy and come to a largely satisfactory conclusion corresponding to widely-shared sentiments, at least among various western 53. Michael Byers and Simon Chesterman, ‘Changing Rules About the Rules? Unilateral Humanitarian Intervention and the Future of International Law’ in Holzgrefe and Keohane (eds), Humanitarian Intervention, supra note 3, 177-203 at 178-79. 54. For example Finnemore argues that multilateralism is a legitimating factor. See Finnemore, ‘Constructing Norms’, supra note 3, at 180. 55. Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (3rd edn, Basic Books: New York, 2000) at 107. 56. For example, Wheeler counts the interventions in the 1970s (Bangladesh in 1971, and Cambodia and Uganda in 1979) as humanitarian, because he omits humanitarian motives from his threshold criteria. See Wheeler, Saving Strangers, supra note 3, at 55-136. 57. Independent International Commission on Kosovo, The Kosovo Report: Conflict, International Responses, Lessons Learned (Oxford University Press, 2000) at 4. 58. Ibid.

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actors and individuals. More importantly, the Commission’s report affirmed that unauthorized interventions were not legal and that Kosovo did not represent a case to the contrary, something that appeased many of the critics. This, however, confirmed that unauthorized humanitarian interventions might enjoy a certain degree of legitimacy.59 At least for some, particularly in the West, the Kosovo case strengthens arguments asserting the legitimacy of unauthorized interventions, or their rightness in the sense that they correspond with our conscience and understandings of what is just. Naturally, not all unauthorized interventions enjoy legitimacy, and even those cases that do enjoy it usually lack universal legitimacy. In the Kosovo case, as many have argued, the supposed legitimacy of NATO action arose in a time of exceptional circumstances, which required exceptional measures with or without the Security Council. Clearly, since it is possible that humanitarian crises continue to occur and that the Security Council is unable or unwilling to address them, the lesson to be drawn here is that the choice of options, which individual decision-makers have (in the few states able to pursue such an active role in foreign and military policy), is not categorically limited by the absence of authorization.60 Rather, the number of legal options that are available to actors changes, while the number of practical courses of action remain largely unchanged, much in the same fashion that legal prohibition does not prevent people from buying or selling drugs although such prohibition makes it more difficult and risky. If decision-makers decide to ‘follow their conscience’ despite lack of legal support and commence interventions without Security Council authorization, their action might still appear as legitimate in the eyes of their peers and relevant constituencies. In such cases, however, the decision-makers would risk taking illegal action knowingly. The downside is, of course, that such action might result in being both illegal and illegitimate. After all, although there is a chance that illegal acts are considered legitimate by some actors, and that decision-makers might be praised for their ‘rebellious’ course of action afterwards, in most cases the legitimacy of a given act is established only a posteriori.61 This might even be a fundamental characteristic of legitimization, because while the world remains 59. Clearly, the opposite is equally true, namely that Security Council authorized interventions might be considered illegitimate by at least some actors. Here one thinks of for example a counter-factual where the recent invasion of Iraq had been authorized by the Security Council. I owe this observation to an anonymous editor. 60. As exemplified by the second Gulf war: the absence of an undeniable Security Council authorization in 2003 did not exclude the use of force from the options that were available to the United States. 61. Since the Kosovo case has been discussed in this context, I shall use this as a further example. NATO’s bombing campaign lasted from March 24 until June 10 in 1999. NATO action, however, was legitimized only after the campaign had already ended. Here, the International Commission’s report played a central role. See supra note 57.

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the judge and jury for legitimizing international acts, it passes final judgment only ex post facto when all the ‘facts’ are in, and even then there would still be political and scholarly disagreement and lack of a universal Truth. In all of this, however, legal arguments will invariably play a role, even when a particular act is regarded as ‘blatantly’ illegal, since it is in the interest of those who support the action to muster as many and as varied justifications as possible (whether legal or otherwise) to support the act. Thus, the simple dichotomies of legal/illegal or legitimate/illegitimate ignore the shared language that constitutes both sides of the dichotomies and the ‘transposition’ of the justifications for the other side of a given dichotomy. To illustrate these thoughts, arguments for the legality of an act refer to it not being illegal (and vice versa), and arguments for legitimizing an act also refer to the legality of the act, at least with reference to it not being illegal. It seems unnecessary to delve into the details of legitimating justifications of unauthorized interventions for the purposes of my general argument in this article. There are several aspects that affect a decision on the legitimacy of a given act, and they are surely case-dependent and correspond to arguments similar to those made in the Kosovo case. In sum, under contemporary circumstances the Security Council is the best right-holder candidate and interventions without Council authorization are illegal. Unauthorized interventions also risk being viewed as illegitimate, although not necessarily. Thus, for the present purposes I will focus on the Security Council as the right-holder. Importantly, though, the right remains at the collective level and is not transferred to the individual members of the Council. Only when the Council acts together62 it can exercise this right much like the other rights and powers it has. Furthermore, in theory the Security Council has two possible ways of intervening: either with standing UN troops (made available to the Council in accordance with Chapter VII of the Charter) or it can authorize a third party to intervene on its behalf.63 In the purest form, the first option is practically impossible because UN member states have not contributed any standing troops to the Council’s use, which means that it remains invariably dependent on member states’ (ad hoc and voluntary) contributions. There is, however, a significant difference in whether the Council exercises its right directly or through a third party. For one, the act of authorization effectively establishes the third party’s right to intervene and creates a new right-holder. There are, then, actually two right62. Naturally, the Security Council has its own procedural and voting rules. A resolution requires at least nine votes out of fifteen and the non-use of a veto by any of the five permanent members of the Council, who also need to support a draft resolution for it to proceed to a vote. Thus, the Council does not need to be unanimous, but there is a certain threshold of collective action that is required for the Council to be able to act. 63. See e.g. Articles 48 and 53 of the UN Charter.

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holders that ought to be considered: the Security Council and any third party as authorized by the Council.64 The fact that the Security Council can transfer and give rights to other actors is highly relevant in determining what kind of right is in question and what the implications of such transfers are, as I will show in the following sections.

4. What Kind of a Right is It? Having established a Hohfeldian typology of rights (but not Hohfeld’s since I have built on his original theory) and two separate right-holders, I combine these two facets in determining what kind of a right each right-holder possesses. I begin with the Security Council and ask whether the Council’s right of humanitarian intervention is best characterized as a right as claim, as privilege, as liberty, as power, or as immunity. A process of elimination is sufficient to determine the answer to this question before proceeding to decide whether the right is more multital than paucital.65

4.1. What Kind of a Right Would the Security Council Have? It seems reasonable to exclude one option immediately; the Security Council’s right is not a right as immunity. As discussed earlier, immunities protect from powers. It is difficult to imagine what the relevant power would be if the Security Council’s right of humanitarian intervention were indeed a right as immunity, since it would surely imply immunity from the powers of the member states. Given that the member states have authorized the Security Council to act on their behalf in matters of international peace and security, this line of thinking seems unsound at best. On the other hand, privileges appear to be ruled out because they do not include guarantees of non-interference by other actors. Given the contemporary organization of international politics and the Security Council’s special position in it, it would be odd, and in contradiction with the UN Charter, if other actors could legally interfere with humanitarian interventions authorized by the Security Council (however, below I will show that the Council’s right does contain some aspects of a right as privilege). Thus, three kinds of rights remain: rights as claims, as liberties, and as powers. Certainly, the Security Council’s right has the characteristics of a right as claim, including a corresponding duty of non-interference by others, but the right also 64. I will not consider actors who might commit legitimate interventions, because the focus here is on the legal right of humanitarian intervention. 65. In the following I assume that some rights and their correspondents can be vested in the same subject. For instance, I argue that a right as power may create liabilities for the same subject. This, however, was not Hohfeld’s argument as far as I am aware.

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incorporates some elements of a right as privilege. Analogous to the earlier car example, one could say that UN members have assigned the Security Council the right to intervene in situations which breach or threaten international peace and security, that the Council is under no duty to intervene but can use its discretion in determining when and where to intervene,66 and that states cannot challenge a Council decision to intervene, at least not on the basis of an infringement of their rights. Likewise, in cases of non-intervention, states can voice their objections to Security Council decisions, but apart from addressing the Council itself, from taking the matter to the General Assembly under the Uniting for Peace procedure,67 or from attempting to bring the individual members of the Council to the International Court of Justice (ICJ),68 there appears to be no effective way to challenge the inaction of Security Council. Certainly, concerned states might take action by themselves and bypass the Council, but from the Charter’s perspective the only way to provide legitimacy to non-authorized enforcement action is to resort to the Uniting for Peace procedure: this allows the General Assembly to hold emergency meetings and make recommendations on questions relating to, for example, use of force when the Security Council’s permanent members are unable to reach consensus.69 Yet, recourse to the General Assembly is unlikely given the lack of such action during the past five decades. Naturally, the lack of previous action does not exclude future action through Uniting for Peace, but it seems improbable that the General Assembly would engage in direct confrontation with the Security Council. Similarly, the ICJ would not be dragged into conflict with the Security Council. As the Pan Am case illustrates, Security Council decisions can hardly be circumscribed, particularly when it is acting under Chapter VII powers, even if its decisions are part of a case brought before the Court by the disputing states. In the Pan Am case, the Court found that it could not order provisional measures against an earlier Security Council decision, because according to Article 103 of the UN Charter obligations arising from the UN Charter precede over any other obligations.70 The combination that the Security Council’s right of humanitarian intervention could be interpreted to contain elements of right as claim and as privilege encourages one to opt for the last remaining option, namely right as liberty. In 66. See Articles 24 and 39 of the UN Charter. 67. GA Res. 377 (V), 3 November 1950. See also Article 12 of the UN Charter. 68. This last option is highly unlikely. Moreover, one wonders whether even in theory it could be possible under any circumstances to attempt to bring a Security Council member before the ICJ for failure to vote ‘correctly’ on a resolution dealing with a threat to or a breach of international peace and security. 69. See supra note 67. 70. See Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom) (Provisional Measures, Order of 14 April 1992), ICJ Reports (1992) 3.

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Hohfeld’s original typology, the Council’s right would have been labeled either as claim or as privilege – or both – but in my modified typology the Security Council’s right can be described as right as liberty. This may be a scholastic point, but it nevertheless does capture the dual character of the right, while at the same time it resonates nicely with how we generally understand liberties. Thus, instead of describing the Security Council’s right of humanitarian intervention either as claim or as privilege, it can be called right as liberty, a right which inherently combines the characteristics of both. There is, however, a point which implies that the Security Council’s right is not simply a right as liberty but that the right is more complex and has a dual character. As was discussed earlier, the Security Council may authorize a third party to act in its stead. This fact indicates that the right is also a right as power, because through the authorization the Security Council creates the right to a third party. Thus, the Council can give other actors rights, a point which makes the Security Council’s right a power. Therefore, the Security Council’s right is best described as having a dual nature: it is a right as liberty and a right as power. Whether the Security Council possesses also meta-powers is less straightforward, since there are at least two distinct ways to understand meta-powers in this context. As was discussed earlier, meta-powers can denote either the ability to give powers to other actors or to regulate the use of rights granted to them. In the first sense, the Security Council does not possess meta-powers, or at least it does not exercise such meta-powers. In other words, the Council authorizes particular actors under particular circumstances, and the authorized party cannot authorize further actors since this would undermine the very purpose of the Security Council.71 On the other hand, and in the second sense, the Security Council does have meta-powers. This is because the Council regulates the use of those rights it gives to third parties. Even when the Security Council gives a carte blanche authorization to a third party, the right can only be exercised against a particular state or armed group. It is not the case that once an actor receives authorization from the Council, it can do whatever it pleases. Rather, the actor is to oblige with the ‘terms’ of the mandate and commit only those acts that it has been charged with in order to achieve the goals set by the Council.72 Moreover, the Council would always retain the possibility of revoking its earlier authorization. In other words, an authorized actor might quickly find its authorization cancelled, if it engaged, for example, in ‘renegade’

71. Whether in theory the Security Council could exercise such meta-powers is another question, but for all practical purposes the Council has not and undoubtedly will not exercise such powers even if it were theoretically possible. 72. Admittedly, the formal resolutions are not examples of micro-managing, but rather broad statements leaving the manner of execution to be decided by the authorized third party. Nevertheless, the Council may decide at any point that the authorized third party has failed in the tasks that were assigned to it.

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acts.73 In sum, it is important to note that the Security Council’s right as power would include meta-powers in the sense that the Council remains in a position to regulate the use of the right even when another actor acts in its stead. A final question remains to be settled in relation to the Security Council’s right, namely whether it is more paucital than multital. Although one could argue that the UN Charter supports the paucital interpretation, as it obliges UN member states to contribute to operations authorized by the Security Council,74 international practice demonstrates that such obligations remain theoretical and that all contributions are voluntary. Much more plausible is the argument that the Security Council’s right implies a duty of non-interference, which in turn can be fulfilled by mere omission and no positive action is required. Hence, given the lack of support for the Security Council’s right implying positive duties (at least in practice), one is inclined to interpret the right as having a multital character. There is an additional point supporting the multital interpretation. The right is to be exercised against a namable state, but the namable states are not predetermined. Certainly, the right is not to be exercised randomly but against states which face a grave humanitarian crisis. Theoretically speaking, because any state may be in this situation, and because some states may disappear while new ones are created, we must include all states as possible targets of humanitarian intervention. Exactly because it is impossible to predetermine against whom the right will be exercised, I argue that the Security Council’s right is more multital than paucital. For it to be otherwise, we should be able to actually name all those states against which the right could be applied. To summarize the Security Council’s right of humanitarian intervention, I have argued that the right is best understood as a dual-natured multital right. On the one hand, the right is a right as liberty, and on the other hand it is a right as power. In an alternative fashion one might say that the Security Council’s right consists of a bundle of rights, an idea which Carl Wellman has developed further in his Real Rights.75 For Wellman, a right is a complex of claims, liberties, powers, and immunities, and it has distinct moral and legal reasons and origins. Such rights ‘have practical implications, most notably the legal and moral duties they imply’.76 Thus, although we say that the Council’s right is a right in the singular sense, my discussion has already shown that the right has many faces. I have omitted, however, an explicit discussion in this section on the embedded ‘rights’ within this single right, namely and to give a few examples: the Council’s right to determine whether a grave humanitarian crisis exists, whether there is a threat to or breach of international 73. Here, however, one should note the so-called negative veto, namely the problem that a permanent member of the Security Council could veto the ‘ending’ of an authorization given in an earlier resolution. 74. See e.g. Article 43 of the UN Charter. 75. I am indebted to Martin Scheinin for this suggestion. 76. Carl Wellman, Real Rights (Oxford University Press, 1995) at 5.

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peace and security, whether there is a need for outside intervention, and who is to intervene and how. In other words, despite the fact that we commonly use the singular ‘right of humanitarian intervention’, at least in the case of the Security Council it denotes more than the legal right to intervene in a grave humanitarian crisis. A whole host of other concepts and systems need to be in place before one can use such a short-hand, if its use is to make any sense.

4.2. What Kind of a Right Would an Authorized Third Party Have? The Security Council may authorize others and thus ‘pass on’ its right of humanitarian intervention, and for this reason one should also consider what kind of right is ‘received’ by that third party.77 Since the Security Council does not have meta-powers in the sense of being able to pass on powers to others, the third party’s right differs at least in this respect. In the following, I treat the third party as a generic actor, which could be a single state, a coalition of states, or individual or multiple inter-governmental organizations. It seems unnecessary to distinguish between these possibilities in this context, because the right of humanitarian intervention, as granted by the Security Council, would surely remain the same regardless of the kind of actor receiving it. Similar to the previous section, I begin with a process of elimination. Given the previous discussion on the Security Council’s right, three kinds of right can be excluded immediately in relation to the third party’s right: rights as power, as immunity, and as a privilege. First, the authorized third party’s right cannot be a right as power: the Security Council does not have meta-powers in the sense that it can pass on powers to other actors. Second, the right would not be a right as immunity, because immunity denotes protection from another’s power. In this case, immunity could denote ‘protection’ from the Council’s authorization – i.e. the authorized third party would have a right to not intervene despite being authorized to do so – or protection against the Council interfering with the use of the transferred right. Neither of these views makes much sense, since the Security Council would hardly authorize an unwilling actor,78 while the whole purpose of the right of humanitarian intervention is to enable effective action and not give legal protection to the authorized actor in cases where the Council deems the authoriza77. As will be shown, it is not the case that a ‘packet’ is ‘sent’ by the Security Council, which is then ‘received’ by the third party, intact and unchanged – a point which should provide some food for thought. 78. Yet, one might ask to what extent the third party could be blamed for failing to act, but unfortunately a satisfactory answer to this question takes the present discussion too far off the mark. It is a difficult question, if for no other reason than because Security Council resolutions can impose legal obligations on member states, for instance by requiring them to enforce economic sanctions. Here, however, the member states would be required to refrain from doing something, i.e. to refrain from trade with the sanctioned state, whereas an authorization-cum-obligation to intervene would require positive acts on the part of some states.

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tion as problematic and wants to revoke it or change its terms. Last, the authorized third party’s right of humanitarian intervention is not a privilege, because others have an implied duty of non-interference in the execution of the right. Arguing intuitively that the authorized third party’s right is a right as a claim appears rational. If the right were a claim, however, there should be a corresponding duty. Yet, supposing that state X had been authorized by the Security Council to intervene in state Y, what could the corresponding duty of Y be with regards to X? It is difficult to imagine what the corresponding duty could be, because the options seem to resemble a duty to allow or welcome the humanitarian intervention. Such train of thought is, of course, implausible from a legal perspective. From a moral perspective one might find some support for the claim that state Y would retain its right to self-defense against the intervention, but even here one encounters problems. For instance, there is a reason for the intervention to occur that should denote morally condemnable acts by the intervened (why else would a morally justified intervention take place?), and therefore already the initial moral standing of the intervened is questionable. Be that as it may, such scholastic arguments would lack concrete effect and meaning in relevant situations. In sum, although it might make intuitively sense to view the right as a claim, the lack of a clear corresponding duty casts doubt on such interpretation. Given the above discussion, a right as liberty provides the best fit as to the kind of right an authorized third party would have. On the surface, it seems that the only significant difference between the right of the Security Council in comparison with that of an authorized third party is that the Council may pass on its right whereas an authorized third party may not, or at least this seems to be the understanding when authorizations are given. A closer examination, however, reveals that the right enjoyed through authorization is more a mixture between a right as privilege and as liberty than either in their pure form. This is due to certain general and particular limitations inherent in the authorized right. As to general limitations, it would always be implied that the exercise of the right would take place against a particular state and in a certain manner. Moreover, the right would remain valid only as long as exceptional circumstances prevailed and intervention was required or until the Security Council revoked its authorization. In addition, any authorization would include case-specific limitations, if no other limitations than which specific state should be targeted, and within which timeframe the right could be exercised. Admittedly, these limitations are usually not explicit, but they are tied to particular circumstances and there is an understanding – although tacit and vague – on how long the authorization remains valid. As the recent Iraq case shows, it is controversial – although ingenious – to argue that an authorization to use force given over a decade ago would still be valid.79 79. For example, the British Attorney-General, Lord Goldsmith argued that resolution 1441 (issued in 2002) revived the authorization to use force against Iraq, which was originally authorized

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Due to the specificity of the right, the authorized third party’s right of humanitarian intervention would be more paucital than multital. For instance, the right is held against a specific other (as specified by the Security Council) and not against the world at large. Second, the possession of the right implies certain positive acts that ought to be taken. In other words, authorization is given with the understanding that the authorized is willing and will exercise the right of humanitarian intervention.80 To summarize, the substance of the right of humanitarian intervention depends on the right-holder. As illustrated in Table 2, the Security Council’s right would be both a right as multital liberty and power, whereas an authorized third party’s right would correspond to a special or restricted paucital liberty. In the table, in order to bring out this special nature of the third party’s right, the ‘Third Party’ box is placed between ‘Liberty’ and ‘Privilege’. Before a final conclusion, the next section considers the implications of some of the points raised in this section with the help of the correlatives of privilege, liberty, and power.

Kind of Right

“Version” of a Right In rem or multital In personam or paucital

Claim Privilege

Security Council

Third Party

Liberty Power Immunity

Table 2: Summary of the kinds of rights by right-holder

in resolution 678 (1990) passed in response to the invasion of Kuwait. Since resolution 1441 found that Iraq was in material breach of the ceasefire conditions established in resolution 687 (1991), the authorization under resolution 678 could be reactivated if Iraq did not seize the ‘final opportunity’ granted in resolution 1441 and comply with the ceasefire conditions (e.g. with the demand to allow unrestricted arms inspections). See SC Res. 678, 23 November 1990; SC Res. 687, 3 April 1991; SC Res. 1441, 8 November 2002. The French, Russian, and Chinese denied that the resolutions entailed such ‘automacity’. See e.g. Gerry Simpson, ‘Law and Force in the Twenty-First Century’ in David Armstrong (ed.), Routledge Handbook of International Law (Routledge: New York, 2009) 197-209 at 206-07. 80. This point is discussed further in the next section.

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5. Correlatives of the Relevant Rights As already noted, in addition to distinguishing between different kinds of rights, Hohfeld discussed the correlatives of rights. The correlative of the right as claim is duty, while the correlatives of rights as privilege, power, and immunity are ‘no-right’, liability, and disability respectively.81 Multital and paucital notions do not have their correlatives because they represent two different versions of claims, privileges, powers and immunities. For the purposes of this article, it is sufficient to focus on the correlatives of the rights that the Security Council or an authorized third party would have, namely on the correlatives of rights as a privilege, liberty, and power. Hohfeld, however, did not distinguish between privileges and liberties as is done in this article, and hence he did not provide a correlative for liberties. Yet, liberties are composed of a right as privilege and a duty of non-interference by others.82 Hence, this discussion focuses on no-right and liability as the correlatives of privilege and power respectively as well as on the duty of non-interference. Hohfeld exemplified no-right thus: ‘the correlative of X’s right that Y shall not enter on the land is Y’s duty not to enter; but the correlative of X’s privilege of entering himself is manifestly Y’s “no-right” that X shall not enter’.83 In other words, Y has no rightful say regarding X and his entering (or not entering) his own (X’s) property. Extending this to the humanitarian intervention framework, it could be argued that right as a privilege correlates with other actors’ no-right with respect to whether the right-holder intervenes or not, and perhaps also how the intervention takes place.84 Yet, as my modified version of Hohfeld’s original typology suggested, a privilege (unlike a liberty) does not necessarily entail an assurance of non-interference, and thus the correlating no-right might not amount to a perfect duty of non-interference. To put it differently, the right of humanitarian intervention as a privilege denotes that other actors do not have a legal right to interfere with the right-holder’s intervention – the other actors have a no-right regarding the right-holder’s intervention. On the other hand, as argued above, the right of humanitarian intervention is best understood as a right as liberty, which is more complex than right as a privilege. Thus, inherent in the right is a duty of non-interference by other actors. There seems little reason to delve on this point, when the right-holder and the right-exerciser is the Security Council who decides to intervene, because other actors are not to interfere in the action taken by the Council. After all, member 81. 82. 83. 84.

Hohfeld, Fundamental Legal Conceptions, supra note 7, at 12. See the earlier discussion on this. Hohfeld, Fundamental Legal Conceptions, supra note 7, at 14. Here, of course, certain limitations come into play following the rules of international humanitarian law, as codified, for instance, in the Geneva Conventions.

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states have authorized the Council to act on their behalf in matters concerning international peace and security.85 In comparison, when the right-holder is an authorized third party, the issue of non-interference is less straightforward. For one, despite authorizing another party to act on its behalf, the Security Council would still retain its power to de-authorize the agent or pass further resolutions or take action itself. Thus, although other actors would be under a duty of noninterference, the Security Council would remain in a privileged position. The final correlative is that of power. According to Hohfeld, right as power is correlated with liability, which is understood as ‘responsibility’, as the ‘opposite of immunity’, or as ‘subjection’.86 Hohfeld’s example of innkeepers illuminates the idea: ‘Correlative to those liabilities are [sic] the respective power of the various members of the public. Thus, for example, a traveling member of the public has the legal power, by making proper application and sufficient tender, to impose a duty on the innkeeper to receive him as a guest’.87 In analogy, if the Security Council has the right of humanitarian intervention, the existence of the right as power might make states and relevant international governmental organizations liable to be charged with the right of humanitarian intervention. This liability, in turn, would incorporate certain duties, because once authorized by the Security Council, the authorized third party ought to intervene as instructed by the Council. In other words, authorization is given with the understanding that the authorized right-holder will exercise the right. Moreover, praise and blame would be accorded to the authorized actor(s), since the Security Council could wash its hands – to an extent – by authorizing a third party to act in its stead. In turn, the authorized agent would then be under certain obligation to intervene. Although states might have more say about their obligations than innkeepers, they would not be able to escape so easily the pressure created by the process of authorization.88 Lastly, there is a further aspect to liabilities as, for example, Wade L. Robison’s discussion on trust and the rule of law illustrates. As pointed out by him in relation to state troopers, ‘because the officer has such special powers … an officer also has a special liability to have a duty to ensure’ that for example evidence is properly collected and handled.89 By possessing powers, the power-holder may be under certain liabilities due to possession. Regarding humanitarian intervention and the Security Council’s right as power, the Council itself would be under some liabilities. For one, the Council would be under a moral liability to intervene in 85. 86. 87. 88.

See Article 24.1 of the UN Charter. Hohfeld, Fundamental Legal Conceptions, supra note 7, at 27. Ibid., at 25. Naturally, in practice authorization is given once it is clear that there are actors who are willing to take upon the responsibility. The point is, however, that the burden of proof shifts, and it is now the states who must justify why they are not ‘answering the call of duty’. 89. Wade L. Robison, ‘Trust and the Rule of Law’ (Rochester Institute of Technology, 2003), (visited 1 May 2009).

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grave humanitarian crises.90 The ICISS concluded similarly in its advocacy of the responsibility to protect.91 Moreover, as argued by Kofi Annan, there seems to be a certain tendency to accept that if a state is unable or unwilling to protect its citizens against extreme violence, the Security Council must assume responsibility.92 Further support for claims that external actors, such as the Security Council or a regional security organization, would be under liability to intervene, can be found both in Article 4 of the African Union Charter93 and the World Summit Outcome Articles 138 and 139.94

6. Conclusion The heuristic assumption that the right of humanitarian intervention exists revealed several insights. First, the discussion hopefully clarified better how and why the Security Council would be the most suitable right-holder and what it would entail. Granting the right to the Security Council would not exclude other actors from the possibility of gaining the right (momentarily), but it would require following a process in which the Council would authorize another actor. The Security Council would thus play a central regulating role. Second, a distinction was drawn between legal and legitimate acts. In this context, unauthorized interventions would not be legal but they could be considered legitimate. Thus, the debate on whether the right of humanitarian intervention should be limited to the Security Council, or whether other actors should possess the right even without receiving authorization, is mistaken, or at least useless, because the lack of the right of humanitarian intervention does not limit the choices available to powerful actors: Interventions not authorized by the Security Council could enjoy varying degrees of legitimacy, at least in the eyes of some actors, if not also in the eyes of the ‘world at large’. Clearly, the aim is not to encourage a proliferation of interventions but to remind concerned actors of their options. Moreover, this point serves to show what a hollow defense for inaction it would be to hide behind the lack of a universally recognized right of humanitarian intervention. Better defenses for inaction arise from the potential negative consequences of intervention or from the moral hazard of twisted 90. Naturally there might be various economic, (geo)political, or practical reasons why words would not turn into action, but ignoring the issue would not be an acceptable option. 91. ICISS, The Responsibility to Protect, supra note 1, at 13 and ff. 92. If State Unable, Unwilling to Protect Citizens against Extreme Violence, Security Council Must Assume Responsibility, United Nations Secretary-General, UN Doc. SG/SM/10000, SC/8444, at para. 6 (12 July 2005). 93. African Union, Constitutive Act of the African Union, Lome, Togo, 11 July 2000, in force 26 May 2001, OAU Doc. CAB/LEG/23.15. 94. United Nations General Assembly, World Summit Outcome, UN Doc. A/RES/60/1 (15 September 2005).

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incentives created by a fully recognized norm of humanitarian intervention as argued by Kuperman.95 Third, the modified Hohfeldian typology demonstrated that the right’s content depends on the right-holder. For the most part, the discussion on the right of humanitarian intervention has assumed that there is a single right, which a varied number of actors possess depending on the author in the relevant literature. It should be clear that the use of plural – rights of humanitarian intervention – would be more appropriate, even if the principal right-holder were the Security Council. The Security Council holds a privileged position, which both enables and restricts its courses of action. In relation to humanitarian intervention, whether conducted by the Security Council or by other actors, the Security Council would remain the last place where ultimate responsibility rests due to its position and powers. The previous point has two important corollaries. First, binary logic fails us in these kinds of questions. As I have hopefully demonstrated, the binary logic of there being or not being a right is less than helpful. Rather, a closer examination with the help of a simple question, which seems to have remained unasked until now (what kind of a right is it?), demonstrated that the issues involved are not only more complex than is usually considered but they also give some hope regarding the future with respect to showing what a shallow excuse it is to justify non-intervention on the basis of there not being a codified right to intervene. For instance, in such a case as Rwanda in 1994 the absence of Security Council authorization would surely not have hindered the legitimate use of the right of humanitarian intervention (even if it may not have been legal). The second significant corollary is that social things are not (like) inanimate objects. As I have shown, the Security Council would neither transfer the right of humanitarian intervention as a whole like a physical object nor would it chip off some of its right and place it in the hands of the authorized third party.96 Rather, more attention ought to be given to the relevant processes such as how does one become to ‘possess’ a right. The final main insight was that the right of humanitarian intervention per se does not imply a duty to intervene. If duties can be said to arise from the existence of the right of humanitarian intervention, they arise from an act of authorization by the Security Council. On the other hand, when the Security Council’s right of humanitarian intervention is viewed as right as power, the right implies 95. Alan J. Kuperman, ‘The Moral Hazard of Humanitarian Intervention: Lessons from the Balkans’, 52 International Studies Quarterly (2008) 49-80. See also Robert W. Rauchhaus, ‘Principal-Agent Problems in Humanitarian Intervention: Moral Hazards, Adverse Selection, and the Commitment Dilemma’, 53 International Studies Quarterly (2009) 871-84. 96. Likewise it would be pointless to look for where sovereignty ‘is’ in the European Union. Rather, it is more useful to ponder how sovereignty operates or acts within the EU, or what does it mean to be sovereign anyway.

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liabilities also on the Council itself.97 It is doubtful whether in its present form the Council could manage such responsibilities, and therefore a question arises in relation to what extent we can actually expect the Council to fulfill them. A Council reform, as well as some reliability regarding contributions to operations, would be necessary if the Council were granted a codified right of humanitarian intervention for that right to be meaningful.98 The issue of responsibility is central not because the right necessarily implies it but because the possession of the right requires its sensible and responsible use. Instead of wading in a debate over a right – or rights as argued here – the discussion seems to have taken a significant turn towards what is right at least since the ICISS report. Also here, however, one ought to pay closer attention to what it means to be responsible rather than simply assert responsibility.99 Nevertheless, at issue is the very structure and character of contemporary international politics. The legal versus legitimate question highlights the ‘invasion’ of law into traditional international (power) politics, although perhaps it is more a ‘rediscovery’ of law in politics rather than an ‘invasion’. Be that as it may, the questions and answers I have suggested in this article illustrate some of the limits of separating international law from international politics and vice versa.

97. Again, within this essay I have assumed that the right exists for heuristic purposes. 98. Whether it is better not to codify the Security Council’s right of humanitarian intervention in the absence of these reforms is another question. A further point which was not discussed in detail was that the Security Council’s right would be a collective right, something which certainly complicates the picture further. 99. On my take on this issue, see Hannes Peltonen, ‘Modelling Collective Responsibility: The Case of grave humanitarian crises’, 36 Review of International Studies (2010, forthcoming) 1-17.

‘The Nameless Rapture of the Struggle’: Towards a Marxist Class-Theoretic Approach to International Law Akbar Rasulov* ABSTRACT: We live in a time of extraordinary challenges, but also a time of great opportunities. The Washington consensus is dead. The global liberal empire is cracking under the weight of its own monstrous pretensions. The economic and ideological bankruptcy of New Finance Capitalism has been exposed so many times and in so many contexts that even its most ardent proponents no longer seem able to believe their own mantras. What can the forces of the Global Left offer by way of a new programmatic alternative in this context? How can they best contribute to the new processes of ideological and political contestation? This article attempts to answer these questions from the perspective of the leftwing international law project. As even its most passionate supporters would have to accept, one of the greatest weaknesses of the critical legal project historically has been its inability to move from the critical to the reconstructive stages of leftwing action. How can this weakness be best overcome? The answer offered in these pages begins with Marxism – in particular, the Marxist class-theoretical approach. The goal of leftwing international law scholars is to help the critical legal movement break out of its prison-house of conspicuous theoreticism and establish a system of durable political connections with the worlds of legal activism and diplomatic action. This article argues in favour of constructing a Marxist-style class-focused approach to international law and by way of a practical illustration offers a critical outline of how this project can be best accomplished. It explains what conditions need to be satisfied on the analytical and the ideological fronts for this enterprise to be successful and details a series of tenets and premises from which it must start. KEYWORDS: international legal theory, Marxism, critical legal studies, international law and capitalism, interdisciplinary approaches to the study of international law *

Law School, University of Glasgow. The writing of this essay has benefited from the various exchanges and conversations I had over the last three years with B. S. Chimni, John Haskell,

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1. Introduction Marx was right. Let this not upset you. The history of all known human societies is a history of class struggle.1 As the heavy dust clouds raised by the selfdelusionary triumphalism of New Finance Capitalism slowly begin to settle, the basic truth of this fundamental insight comes to be realized once more, in all its stark simplicity. Marx was right, and the times we live in as never before confirm the great historic promise of his theoretical legacy for the international law profession. The global capitalist empire under whose ever-expanding umbrella the international legal order evolved over the last 150 years has entered its deepest systemic crisis of the last half-century. The once seemingly bottomless toolbox of clever ideological devices by which it had secured its dominance has turned out to be filled with cheap dysfunctional gimmicks and random debris. The virtually unchallengeable hegemony which the neoliberal right asserted over the terms of the global political debate at the end of the Cold War has abruptly disintegrated, and Minerva’s favourite wildbird, at long last, is again breaking out of her golden cage. The greater the spontaneous unfolding of historical events, wrote Lenin famously, the more pressing becomes the ‘demand for greater consciousness in the … work of social democracy.’2 In these times of extraordinary openings, what can the Global Left offer by way of a new programmatic agenda? How can it take advantage of this newly formed historical conjuncture? How can it realize its historic mission of laying out the path from the ever-dreadful ‘realm of necessity’ into the ever-utopian ‘realm of freedom’?3 How can it contribute its voice to the newly revived processes of rethinking and ideological struggle? What can it do – what should it do – in order to accomplish these aims? What sort of a new critical project and what kind of a new utopian vision ought it try to develop? I do not claim I can answer any of these questions in full. The subject that I cover in these pages is much more modest in scope. It comprises, essentially, two main issues. First, how should leftwing international lawyers respond to the challenges of our times? Second, what sort of political posture and vocabulary should they develop in their day-to-day practices? Will it be better for the leftwing international law project to ally itself with some part of the UN technocracy? Or

1. 2. 3.

Duncan Kennedy, Robert Knox, Alejandro Lorite, China Miéville, Scott Newton, and Umut Özsu. John’s editorial suggestions on an earlier draft have been particularly helpful. So was participation in the 2009 Brown International Advanced Research Institute on Law, Social Thought, and Global Governance. Karl Marx and Frederick Engels, The Communist Manifesto (Verso: London, 1998) at 34. V. I. Lenin, What Is To Be Done? (Penguin: London, 1988) at 119. See Karl Marx, Capital, Vol. III (Foreign Languages Publishing House: Moscow, 1959) at 799-800.

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should it reach out instead to some segment of the ‘global civil society’? Will it be more effective to formulate the radical international law agenda in terms of a North-South divide or translate it into the language of the international human rights project? In the pages ahead, I try to outline one possible way of resolving these and a number of other related questions. Needless to say, I do not assert this to be the only answer one can imagine in the present circumstances. I do, however, believe that as far as programmatic visions go, the one I advocate here deserves at least to be given some serious theoretical attention. The remarks which I offer below purport to expound one particular version of a Marxist theory of international law. They are not intended to provide a comprehensive overview of everything that can or, indeed, needs to be said today about the general significance of the broader Marxist theoretical tradition for contemporary international legal studies.4 My objective in these pages, rather, is limited to a much narrower task – the articulation of the most basic constituent elements of what can eventually be developed into a workable analytical framework for leftwing international law practitioners derived from what can be roughly described as the classical Marxist tradition. I do not claim – nor would I believe anyone who does – that we can yet know for sure what this analytical framework ought to be in each one of its numerous dimensions. Much more theoretical work needs to be done before we arrive in that position. But every journey must begin somewhere.

* A few words about what comes below. Section 2 provides a brief overview of what I understand to be the most important theoretical challenge confronting the leftwing international law project today. It describea the general ideological context which frames this theoretical challenge and on this basis sets out the general case in favour of constructing an explicitly Marxist approach to international law. Building on the foundations thus laid, Section 3 then offers a general synopsis of the three main analytical blocks from which the particular kind of Marxist approach to the study of international law which I advocate in these pages can be constructed. One does not have to agree with every step of the argument that I make in Section 3 to be able to grasp the general programmatic vision which comes after it in Sections 4 and 5, but it would certainly help to have at least followed its basic sequence. If Section 5 is this article’s main programmatic statement, Section 3 is its essential theoretical foundation. 4.

A much better starting point for that can be found in Susan Marks (ed.), International Law on the Left (Cambridge University Press, 2008).

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To make the argument more accessible, each section presents a relatively selfcontained series of theses. That said, to go straight to Section 5 without even looking, say, at Section 2, would probably be a mistake. One last point: a few paragraphs earlier I described my project in terms of a ‘classical Marxist tradition’. What precisely should one understand by that? Briefly, the idea of there being more than one Marxist traditions has long enjoyed a certain degree of popularity among leftwing legal scholars.5 Susan Marks’s recent assertion in the opening essay of International Law on the Left that ‘[a]ny effort to take stock of what Marxism has to offer today must [necessarily] reckon with a tradition that … is … persistently plural’, in this context, can be said to represent a certain orthodoxy.6 One may agree with the ideological aspirations which it represents. But one may also question them.7 Pluralism, like syncretism, is hardly a self-evident virtue. One man’s diversity of opinion could well be another man’s Tower of Babel. To treat the phenomenon of pluralism as necessarily beneficent is, as Terry Eagleton observed, after all, an ‘industrial chaplain view of reality’.8 The view that I take here, while not necessarily in conflict with Marks’s position, holds, nevertheless, that however wide this ‘sea of Marxisms’ may be, one can still distinguish within it with a sufficient degree of analytical precision what historically constitutes the classical strand of the Marxist tradition. What are the principal features of this classical strand? To put it in a somewhat telegraphic form, the primary conceptual categories around which it arranges its analytical framework are the concepts of ‘class struggle’, ‘exploitation’, and ‘mode of production’. The principal critical operations in terms of which it organises its analytical work are the ‘commodity fetishism’ argument and the ‘derivation of the superstructure’ argument. The main ‘fields’ on which it concentrates its attention are ‘economics’ and ‘politics’. The primary epistemological assumption on which it bases all its discourse is ‘external realism’.9 5. 6. 7.

8. 9.

See, generally, B. S. Chimni, International Law and World Order (Sage: New Delhi, 1993); David Kennedy, ‘Critical Theory, Structuralism and Contemporary Legal Scholarship’, 21 New England Law Review (1986) 209-89. Susan Marks, ‘Introduction’, in Marks, International Law on the Left, supra note 4, at 1. On the ideological importance of the many-Marxisms thesis, for instance, in the context of the institutional development of the US CLS movement, see John Henry Schlegel, ‘Notes towards an Intimate, Opinionated, and Affectionate History of the Conference on Critical Legal Studies’, 36 Stanford Law Review (1984) 391-411 at 393-8. Terry Eagleton, After Theory (Verso: London, 2003) at 136. Although not necessarily expressed in exactly the same terms, this view has been generally espoused in most Marxist accounts of Marxism’s own intellectual history. See, e.g., Göran Therborn, ‘Dialectics of Modernity: On Critical Theory and the Legacy of Twentieth-Century Marxism’, 215 New Left Review (1996) 59-81; Alex Callinicos, Is There a Future for Marxism? (Macmillan: London, 1982); Perry Anderson, Considerations on Western Marxism (Verso: London, 1976).

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An archetypal illustration of a work produced in the classical tradition would be Das Kapital itself. Among the more recent examples, one can point variously to the writings of Evgeniy Preobrazhensky10 and Nicos Poulantzas,11 Ellen Meiksins Wood12 and Gerald Cohen,13 Robert Brenner14 and Susan Watkins,15 Hillel Ticktin16 and David Harvey,17 Göran Therborn18 and Stephen Resnick and Richard Wolff.19 Whatever impression the language of classicism may imply, the classical tradition in Marxism is, thus, a rather catholic field. It is not a species of dogmatism or theoretical fundamentalism.

2. The Nature of the Challenge We live at the end of an era. The Washington Consensus is dead. So, too, are the ‘Bush doctrine’, the Fukuyamian ‘end of history,’ and the buzzing Thatcherite culture of ‘there is no alternative’. With the global food crisis steadily escalating on an ever-greater scale, the golden age of the unquestioning faith in free-market deregulationism is dissolving as fast as the vulgar ideological order that propped it up all these years from Reagan and Thatcher to NAFTA and George Bush Jr.20 10. See, e.g., Evgeni Preobrazhensky, The New Economics (trans. by Brian Pearce; Clarendon Press: Oxford, 1965). 11. See, e.g., Nicos Poulantzas, Political Power and Social Classes (trans. by Timothy O’Hagan et al.; NLB: London, 1973). 12. See, e.g., Ellen Meiksins Wood, Democracy against Capitalism (Cambridge University Press, 1995). 13. See, e.g., G. A. Cohen, Karl Marx’s Theory of History (Clarendon Press: Oxford, 1978). 14. See, e.g., Robert Brenner, ‘The Social Basis of Economic Development’, in John Romer (ed.), Analytical Marxism (Cambridge University Press, 1986) 23-53. 15. See, e.g., Susan Watkins, ‘Shifting Sands’, 61 New Left Review (2010) 5-27. 16. See, e.g., Hillel Ticktin, ‘The Nature of an Epoch of Declining Capitalism’, 26 Critique (1998) 69-93. 17. See, e.g., David Harvey, The New Imperialism (Oxford University Press, 2003). 18. See, e.g., Göran Therborn, ‘The Prospects of Labour and the Transformation of Advanced Capitalism’, 145 New Left Review (1984) 5-38. 19. Stephen Resnick and Richard Wolff, Class Theory and History (Routledge: New York, 2002). 20. See Pedro Conceição and Ronald Mendoza, ‘Anatomy of the Global Food Crisis’, 30 Third World Quarterly (2009) 1159-1182; Jennifer Clapp, ‘Food Price Volatility and Vulnerability in the Global South: Considering the Global Economic Context’, 30 Third World Quarterly (2009) 1183-1196; Gopal Balakrishnan, ‘Speculations on the Stationary State’, 59 New Left Review (2009) 5-26; Jack Rasmus, ‘Speculative Capital, Financial Crisis and Emerging Epic Recession’, 37 Critique (2009) 31-49; Gary A. Dymski, ‘Racial Exclusion and the Political Economy of the Subprime Crisis’, 17 Historical Materialism (2009) 149-179; David McNally, ‘From Financial Crisis to World-Slump: Accumulation, Financialisation, and the Global Slowdown’, 17 Historical Materialism (2009) 35-83; Robert Wade, ‘Financial Regime Change?’, 53 New Left Review (2008) 5-21; Raghu Krishnan and Adrien Thomas, ‘Resistance to Neoliberalism in France’, 45 Socialist Register (2008) 295; Perry Anderson, ‘Jottings on the Conjuncture’, 48 New Left Review (2007) 5-37. See also more generally Hugo Radice,

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To be sure, that wild sense of an impending economic apocalypse that surfaced in some quarters, on the left as well as on the right, during the ‘grandes journées of September 2008’ has proved to be essentially unwarranted. The domino-style meltdown of Wall Street powerhouses has since been halted, the global financial system re-stabilised, and the international monetary crisis, for the most part, averted. Already by August 2009 a number of leading Western economies began officially ‘exiting recession’.21 Soon after, the IMF confirmed the resumption of global economic growth, predicting world output levels to grow by at least 4% over the following year.22 A little more than 15 months after the avalanchine implosion of the asset bubbles in the international financial markets seemed poised to upend the whole of the world economic system, global production and trade levels started ‘bouncing back’, safely forestalling a full-scale repeat of the Great Depression. Or at least that is what made the IMF news headlines. A slightly more attentive reading of the underlying economic indicators suggests a much more ambivalent image: not so much a bottoming-out of the global crisis as a complex redistribution of the crisis trends from one region of the world to another; not so much a reversal of the epic recessionary trends as a transmission of the recessionary momentum from one sector of the economy to another. To be sure, the larger banks did in the end manage, as Susan Watkins puts it, to ‘get away with it, politically’.23 In some cases, indeed, their shares have now risen higher than they had been before the crisis. But outside the banking industry the story seems much grimmer. Even in the North Atlantic region, the historical heartland of global capitalism, the patterns of economic recovery have at best remained patchy. In the wake of the collapse of all three of its major banks, Iceland – the whole economy, not just the ‘government’ – barely escaped bankruptcy.24 As

21. 22. 23.

24.

‘The Developmental State under Global Neoliberalism’, 29 Third World Quarterly (2008) 1153-1174; Gérard Duménil and Dominique Lévy, Capital Resurgent: Roots of the Neoliberal Revolution (trans. by Derek Jeffers; Harvard University Press, 2004). ‘France and Germany Exit Recession’, BBC News, 13 August 2009, (visited 22 February 2010). ‘World Economic Outlook Update’, International Monetary Fund, 26 January 2010, (visited 22 February 2010). Watkins, ‘Shifting Sands’, supra note 15, at 10. In assessing this remarkable turn of fortune for the banking industry, however, one must bear in mind that the rising tide, as it were, lift all boats: in 2009, more than 140 smaller-size banks ‘failed’ in the US alone. See ‘Notes from Editors’, 61/9 Monthly Review, February 2010, (visited 22 February 2010). Eric Pfanner, ‘Iceland is All But Officially Bankrupt’, The New York Times, 9 October 2008. Editorial, ‘Timeline: Iceland Economic Crisis’, BBC News, 2 February 2009, (visited 22 February 2010).

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of the early 2010, Greece seemed to be fast progressing down the same tracks.25 Britain, at least by some accounts, was hardly that far behind.26 Neither development, naturally, boded well for the stability of international currency markets, 27 and the spectre of a comprehensive global financial meltdown – this time caused by sovereign defaults – has once again returned to the horizon.28 Slightly further afield, every second government in Central and East European region has been forced to take out emergency loans from the IMF.29 Official unemployment figures, in the meantime, steadily reached into the double digits not only in the US, but also across many parts of the Eurozone, reaching the staggering 20% in Spain by November 2009.30 Characteristically, increase in female and youth unemployment rates in many cases conspicuously exceeded those for adult males, and overall more than 60% of all those who qualified as ‘employed’ for the purposes of the International Labour Organisation’s statistics in 2008 earned wages at the rate of two US dollars a day or less.31 Taking a few steps back, the IMF’s concept of the global economic recovery itself perhaps requires to be taken with a certain degree of scepticism. To be sure, the world output levels in 2010 may well rise by those 4% which the Fund promises. But decontextualised global projections of such kind often tend to hide more than they reveal. Take for instance Russia. In the first half of 2009 alone, the Russian GDP levels shrank by almost 10%, domestic demand fell by half, and industrial production levels by 40%.32 In the European Union, in the same year total output levels decreased by 10%; in Japan, by 12%; in the Baltics, by

25. Editorial, ‘Timeline: Greece’s Economic Crisis’, Reuters, 3 February 2010, < www.reuters.com/ article/idUSTRE 6124EL20100203> (visited 22 February 2010); Ambrose Evans-Pritchard, ‘Greece Loses EU Voting Power in Blow to Sovereignty’, The Daily Telegraph, 16 February 2010. 26. Editorial, ‘On Borrowed Time’, The Times, 19 February 2010; Ian King, ‘Worried about National Debt?’, ibid. 27. Larry Elliott, ‘Greece’s Financial Crisis Puts the Future of the Euro in Question’, The Observer, 7 February 2010; Steven Erlanger, ‘Euro Debt Crisis Is Political Test for Bloc’, The New York Times, 5 February 2010; Angela Monaghan, ‘Markets in Retreat after Britain Posts First-ever January Deficit’, The Daily Telegraph, 18 February 2010. 28. James Quinn, ‘Greece to Start “Spate of Sovereign Defaults”’, The Daily Telegraph, 24 February 2010. 29. Editorial, ‘The IMF Helps to Bail-out Striken Countries in Eastern Europe’, The Economist, 27 October 2008. 30. Global Employment Trends’, International Labour Organisation, January 2010, , at 38 (visited 22 February 2010). 31. Ibid., at 15- 22. 32. Watkins, ‘Shifting Sands’, supra note 15, at 11.

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14%.33 In Ukraine, total growth levels for 2009 registered at –14%; in Moldova, at – 9%; in Mexico, at –7.3%; in Armenia, at – 15.6%.34 To be sure, the People’s Republic of China (PRC) and the so-called ‘poorer countries across the global South’ that had been less integrated into the global markets did not, as many observers remarked, witness the same levels of output contraction in the wake of the global financial crunch.35 But the real meaning of this ‘decoupling’ has to be approached against the background of the much broader trends. Between March 2007 and March 2008, according to the UN Food and Agriculture Organization, the global price of traded wheat rose by more than 130%; rice, by more than 70%; soya, by more than 80%.36 And while in the eyes of some observers the PRC’s economy yet again seems to have proved itself invulnerable to whatever maladies afflict the global economic system otherwise, this impression is set to hold, at best, only for so long as the delayed effects of the shrinking markets for Chinese commodities are not absorbed in full. For, indeed, even if China’s share of the global export markets may have grown in relative terms, in absolute terms the levels of Chinese export trade have undoubtedly taken a plunge,37 a trend that has already left a strong impact on domestic labour markets.38 In the meantime, the mountain of global debt generated as finance ministers and central bankers around the world frantically shuffle through every trick in the neo-Keynesian book to help resuscitate global production and trade, has continued to grow at such a staggering rate that the idea of an inter-generational fiscal burden increasingly loses its metaphoric quality.39 And in exchange for what short-term benefits? Whatever the scale of the fiscal and monetary stimuli thrown at it by the public decision-makers, the global private sector seems to have simply absorbed everything that came its way. As the most recent OECD figures indicate, in high-income countries as well as in the big emerging markets, at the start of 2010, private sector financial balances stood to run up a surplus income 33. ‘Global Employment Trends’, supra note 30, at 38; Watkins, ‘Shifting Sands’, supra note 15, at 10. 34. ‘Global Employment Trends’, supra note 30, at 30 and 37. 35. Ibid., at 27-35; Watkins, ‘Shifting Sands’, supra note 15, at 11. 36. See Conceição and Mendoza, ‘Anatomy of the Global Food Crisis’, supra note 20, at 1159-60. 37. Editorial, ‘Fear of the Dragon’, The Economist, 7 January 2010. 38. Keith Bradsher, ‘China’s Unemployment Swells as Exports Falter’, The New York Times, 5 February 2009. 39. At the start of 2010, the level of public debt in Britain, for example, reached 170% of the projected government income for the coming fiscal year, or more than 60% of the GDP. See King, ‘Worried about National Debt?’, supra note 26. In Japan, the gross government debt figure registered at more than 200% of GDP. See Editorial, ‘Japan Is a Beacon of Hope to West’, The Daily Telegraph, 24 February 2010. For comparable US figures, see Michael Mackenzie and Gillian Tett, ‘Moody’s Warns US of Credit Rating Fears’, The Financial Times, 3 February 2010.

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at the rate of 7.4% of the corresponding GDP figures. Or, to put it more bluntly, despite whatever fiscal and monetary stimuli it receives, ‘the private sector is now spending far less than its aggregate income’ – a scenario which, if it continues to run for any longer, can only lead to a potentially uncheckable succession of sovereign debt crises.40 Has New Finance Capitalism finally lost all its political and economic purchase? However one looks at it, one thing seems to be certain: its ideological credibility as a model of ordering global economic and political affairs has entered a period of terminal decline. To continue in such circumstances to rely on the same intellectual framework which had enabled this model to emerge in the first place, it seems, would be, at best, highly imprudent. Even those who write op-ed pieces for The Financial Times have come to realize that.41 Whether one likes it or not, it appears, the time has arrived for international lawyers to do the same. For, indeed, however much it may seem to be ‘only’ an economic theory, in truth, free-market liberalism has never been just that. The teachings of Adam Smith are not a discretionary add-on attachment grafted onto a philosophically independent theoretical platform constructed from the combined legacies of Hobbes, Bentham, and Locke. They are part and parcel of the same general order of thought. Just like the Smithian theory of economics cannot make much sense without the Lockean theory of society, so too the latter cannot, in the final analysis, make much sense without the former.42 If one of the two has to be dropped, then so too must the other. What does it mean, though, to say that the Lockean theory of society must be discarded? The scale of the theoretical challenge presented to the international law profession by the current historical conjuncture, in the end, is as simple as it is monumental. A completely new theoretical consciousness needs to be created for the international law field, to help it transcend the bleak old horizons carved out by the founding fathers of liberal thought. It has to be created, rigorously and painstakingly, but not just on the level of the self-conscious theoretical discourse itself. It is the system of what Diego Lopez Medina has dubbed ‘pop jurisprudence’ – the spontaneously sustained common juristic sense, the professional doxa of the international law community – that ultimately matters far more.43 For, let us make no mistake about this: it is only through the intellectual and ideological 40. Martin Wolf, ‘The World Economy Has No Easy Way Out of the Mire’, The Financial Times, 24 February 2010. 41. See, e.g., Jean-Louis Beffa and Xavier Ragot, ‘The Fall of the Financial Model of Capitalism’, The Financial Times, 22 February 2008; Martin Wolf, ‘The End of Lightly Regulated Finance Has Come Far Closer’, The Financial Times, 16 September 2008. 42. For further elaboration of this argument, see Roberto Unger, Knowledge and Politics (Free Press: New York, 1975). 43. See Diego Lopez Medina, Comparative Jurisprudence: Reception and Misreading of Transnational Legal Theory in Latin America (SJD Thesis, Harvard Law School, 2001) [a copy on file with

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materials that circulate within the plane of ‘pop jurisprudence’ that the logic of international law’s practical reality – its ‘living law’, to use Eugen Ehrlich’s expression44 – receives its full articulation. And it is only via this articulation that all the various segments of the international law profession are able to give meaning to the terms by which they learn to situate themselves vis-à-vis each other and their day-to-day professional realities. Like all categories of university-based intellectuals, leftwing international law scholars – and most leftwing international lawyers today are university academics, a fact whose practical-social significance I will return to shortly – tend to underestimate the fact that the reality of every collective practice, be it international law scholarship or international law itself, is defined, in the end, far less by the contents of the collective self-consciousness that accompanies it than by the interpellative effects of its ‘stylized performative patterns’45 If the international law left does not succeed in changing the structures of international law’s habitus – the contents of its ‘pop jurisprudence’ – there will be no point in scoring any victories on the plane of the ‘high’ legal-theoretic debate. But where should one turn now in search for this new jurisprudential system? Where should one look for those basic building blocks from which one could assemble not simply a new way of abstract thinking about international law but a whole new analytical framework that would enable its users to produce concrete practical responses to concrete practical problems? As the title of this essay suggest, my answer to this question is: Marxism; in particular, the Marxist class-theoretic tradition. And here is why. Firstly, as even its fiercest opponents would readily admit, the leftwing international law project over the last thirty years has developed a truly remarkable track record when it comes to the practice of ideology criticism.46 It has debunked and demystified numerous areas and sub-areas of international legal relations and exposed countless ruses and biases permeating the contemporary international Harvard Law School library]. A later Spanish edition came out as Diego Lopez Medina, Teoria Impura del Derecho (Legis: Bogotá, 2004). 44. See Eugen Ehrlich, Fundamental Principles of the Sociology of Law (trans. by Walter Moll; Harvard University Press, 1936) at 493-506. 45. See Judith Butler, ‘Performative Acts and Gender Constitution: An Essay in Phenomenology and Feminist Theory’, 40 Theatre Journal (1988) 519-531. 46. Variously dubbed ‘critical international legal studies,’ ‘newstream,’ and the ‘new approaches to international law,’ the academic side of this development has attracted considerable commentary in international law literature in the last two decades. See, e.g., Nigel Purvis, ‘Critical Legal Studies in Public International Law’, 32 Harvard International Law Journal (1991) 81-127; Deborah Cass, ‘Navigating the Newstream: Recent Critical Scholarship in International Law’, 65 Nordic Journal of International Law (1996) 341-383; David Kennedy, ‘When Renewal Repeats Itself: Thinking against the Box’, 32 NYU Journal of International Law & Policy (2000) 335-500 at 483-97; B. S. Chimni, ‘Towards a Radical Third World Approach to Contemporary International Law’, 5/2 ICCLP Review (2002) 14-26 at 21-3.

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legal order and the corresponding sets of social practices that sustain them. It has brought to light and painstakingly documented a whole range of conveniently forgotten inconvenient facts about international law’s past, distant and near. But it has not, as we all know perfectly well, achieved nearly as impressive a set of results when it came to the ‘constructive side’ of its political enterprise. There has been a great deal of brilliant critical writing on various international law subjects coming from the leftist quarters in recent years. But there have been no serious large-scale programmatic statements. Many sceptical voices, but no constructive visions. Many subversive questions, but no utopias.47 The unique power of the Marxist tradition, seen against this background, I think, lies precisely in its long-proven potential to overcome exactly such kind of dead-end-street dynamics. Time and time again, from Georgi Plekhanov48 to Kwame Nkrumah,49 from Rosa Luxemburg50 to Catharine MacKinnon,51 it has been the classical Marxist tradition that has helped to inspire every grand political enterprise undertaken by the secular left anywhere in the world in the last one hundred years. True, the idiom of class studies has not been exceptionally popular in the broader tradition of critical legal writing in recent times.52 But forging weapons is never a popularity contest, and every explanatory theory that is designed to serve also as a practical guide for political action is inevitably going to be a weapon – theoretical, critical, ideological. True, a rather significant number of ‘programmatic visions’ that had been produced over the course of the last century under the rubric of the Marxist tradition have led to what at best can only be described as deeply regrettable outcomes. But the same could also be said of every other theoretical tradition, not least free-market liberalism.53 Only a very naïve person could seriously believe that the course of history can be pre-determined by an analytical tradition. To lay the responsibility for the emergence of the Gulag or the crushing of the Prague Spring at the doors of the Marxist tradition would be no less dubious than to 47. For (partial) exceptions, see David Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (Princeton University Press, 2004) at 327-57; B. S. Chimni, ‘Alternative Visions of Just World Order: Six Tales from India’, 46 Harvard International Law Journal (2005) 389-402. 48. Georg Plekhanov, In Defence of Materialism: The Development of the Monist View of History (trans. by Andrew Rothstein; Lawrence & Wishart: London, 1947). 49. Kwame Nkruman, Neo-Colonialism: The Last Stage of Imperialism (Heinemann: London, 1968). 50. Rosa Luxemburg, The Mass Strike (trans. by Patrick Lavin; Bookmarks: London, 1986). 51. Catharine MacKinnon, Towards a Feminist Theory of the State (Harvard University Press, 1989). 52. See Paddy Ireland, ‘History, Critical Legal Studies and the Mysterious Disappearance of Capitalism’, 65 Modern Law Review (2002) 120-140. 53. See John Newsinger, The Blood Never Dried (Bookmarks: London, 2006) at 34-6.

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blame the occurrence of the Opium Wars on the theory of free trade and the concepts of supply and demand. True, many canonical class-theoretic writings do not read very easily, even today, and the ideas advanced in them do not always seem to have a clearly identifiable practical dimension. But simplicity makes for an unqualified virtue only among the demagogues, the lazy, and the poor in imagination. True, in the field of contemporary international law theory the Marxist classtheoretic tradition for the most part has not even been tapped yet, and that, in the end, may be considered a cause not only for a profound hope, but also for a profound anxiety. For, of course, one might say, should it be performed ‘correctly’, a Marxist-style class-focused re-orientation of international legal studies can equip progressive international lawyers not only with a whole new metatheoretical framework, but also a highly practicable conceptual apparatus that includes both an extensive toolbox of micro-level analytical instruments and a highly reliable macro-level theoretical platform on which one can construct any number of counter-hegemonic strategies. Performed ‘correctly’, a class-analytic re-theorization of international law can supply the leftwing international law project with a virtually endless stock of new programmatic suggestions. It can grant it access to ideological horizons that hitherto its participants could only have dreamt about, breathing life back into the idea of a ‘radicalism with rules’ and making possible once again the vision of a radical international law theory that is neither despairingly nihilist in its general outlook, nor hopelessly utopian. But every successful performance requires a certain degree of training and experience. Without any previous practice in constructing an all-encompassing Marxist-theoretical project, what guarantees do we have that the journey we are about to set out on as international law theorists will not end in total disaster? What guarantees do we have that the tiniest mis-estimation of our institutional or intellectual potential will not irretrievably ruin everything we cannot afford today to have ruined, alienate at once all those potential allies and target communities without whom any idea of a practical reform becomes a meaningless fiction? I am afraid I do not have any better answer to this than that if these should indeed be our worst fears, then, I suppose, we have nothing to fear, really. The disaster has already happened. For, let us be honest with ourselves: where some three or four generations ago most of the practical momentum in the leftwing international law project was concentrated in the fields of international diplomacy and political activism, the vast majority of all leftwing efforts in international law today are limited to the field of academic practice. The ships of the New International Economic Order had ran aground in the early eighties, and the only notable achievement the international law left has managed to produce since then was an academic rebellion.

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Please do not get me wrong. None of this is intended to belittle what that generation has done or attempted to do – quite the contrary. Everything that I know about being a progressive international law scholar I have learned from them. Chances are, the same goes for all of us.. But the situation in which the leftwing international law project finds itself today is not made any better by this recognition. If we are to regard ourselves as the direct heirs of any one of those great political projects that unfolded in the past under the banner of the international law left, the basic truth we will have to confront before we move anywhere further with our work is that, quite simply, we have lost every connection our predecessors’ predecessors had had with the world of practical diplomacy and international activism. Every activist community, which four decades ago would have normally mobilized itself in terms of a leftwing vocabulary, has switched today to the language of ‘good governance’ and ‘human rights’. Where a mere thirty years earlier one would have found a whole array of different international trade union movements and anti-colonial coalitions, all seeking in one way or another to deploy concepts and arguments of an essentially international legal provenance, today one can only see a loose network of identitarian groups flanked by every shade of the neo-hippyist consumer-power movement. Things can no longer continue the way they are going today. The leftwing international law project needs to establish a network of durable political connections with the non-academic segments of international law’s ‘invisible college,’54 and it needs to do this fast. The Marxist class-theoretic tradition, while it cannot in itself guarantee the achievement of this goal, can equip the leftwing international law project with invaluable practical and theoretical insights as to how exactly it can proceed on this front. A considerable part of this, to be sure, comes from the fact that from its very inception the classical Marxist tradition has concentrated on developing only those kinds of theoretical knowledges, which could be immediately converted into practical instruments.55 But it is also true, that the classical Marxist tradition has also been simply ‘unmatched in its resources for self-reflection and self-correction,’ especially in what concerns the development of such practiceoriented knowledge-instruments.56 One does not need to go far to obtain a basic sense of what a Marxist-style reconceptualisation of international law would look like. A series of groundbreaking 54. Oscar Schachter, ‘The Invisible College of International Lawyers’, 72 Northwestern University Law Review (1977) 217-226. 55. That is to say that kind of theoretical knowledge that ‘is essential to practice, to the forms of practice that it helps bring to birth or to grow, as well as to the practice it is the theory of.’ Louis Althusser, For Marx (trans. by Ben Brewster; NLB: London, 1969) at 166. 56. Chimni, International Law and World Order, supra note 5, at 17.

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works that started to emerge over the last few years – from China Miéville’s Between Equal Rights57 to Hillel Ticktin’s ‘Political Economy and the End of Capitalism,’58 William Robinson and Jerry Harris’s writings on the transnational capitalist class,59 and Benno Teschke’s The Myth of 164860 – have accumulated a whole range of insights from which already now one can begin to develop the basic foundations of a Marxist-style class-theoretic approach to international law.61 How should this task be resolved in practice? What sort of theoretical stance should we take towards these insights? Should we simply combine them into one single whole? Or should we subject them to further theoretical ‘processing’? If the latter, on what terms and under the guidance of what ‘first principles’ should this processing be organised? Again, what I can offer on this count is at best only a provisional answer. But it appears to me that from the general Marxist point of view the development of a consistently Marxist approach of international law presupposes a certain number of basic theoretical conditions.62 The most important of them, in systemic terms, is the acceptance of the following general thesis as the principal point of all theoretical departures: In the social production of their existence, men inevitably enter into definite … relations of production appropriate to a given stage in the development of their material forces of production. The totality of these relations of production constitutes the economic structure of society, the real foundation, on which arises a legal and political superstructure and to which correspond definite forms of social consciousness. The mode of production of material life conditions the general process of social, political and intellectual life. … At a certain stage of development, the material productive forces of society come into conflict with the existing relations of production or – this merely expresses the same thing in legal terms – with the property relations within the framework of which they have operated hitherto. From forms of development of the productive forces 57. China Miéville, Between Equal Rights (Brill: Leiden, 2005). 58. Hillel Ticktin, ‘Political Economy and the End of Capitalism’, 35 Critique (2007) 67-77. 59. William Robinson and Jerry Harris, ‘Toward a Global Ruling Class? Globalization and the Transnational Capitalist Class’, 64 Science & Society (2000) 11-54. 60. Benno Teschke, The Myth of 1648 (Verso: London, 2003). 61. For other important recent contributions, see Umut Özsu, ‘The Question of Form: Notes on Dialectics and International Law’, 23 Leiden Journal of International Law (2010) (forthcoming); Robert Knox, ‘Marxism, International Law, and Political Strategy’, 22 Leiden Journal of International Law (2009) 413-436; Bill Bowring, The Degradation of the International Legal Order? (RoutledgeCavendish: London, 2008); B. S. Chimni, ‘International Institutions Today: an Imperial Global State in the Making’, 15 European Journal of International Law (2004) 1-37. 62. See Evgeny Pashukanis, ‘The General Theory of Law and Marxism’, in Piers Beirne and Robert Sharlet (eds.), Pashukanis: Selected Writings on Marxism and Law (trans. by Peter Maggs; Academic Press: London, 1980), 37-131 at 40-54. See also, more generally, Louis Althusser, Essays in Self-Criticism (trans. by Grahame Lock; NLB: London, 1976) at 163 et seq.

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these relations turn into their fetters. Then begins an era of social revolution. The changes in the economic foundation lead sooner or later to the transformation of the whole immense superstructure.63

Put differently, the development of a consistently Marxist approach to international legal studies must begin, in effect, with the production of a general systematic account explaining the basic inter-relationship between the historical patterns structuring the global division of labour (and the corresponding extraction of surplus value) and the corresponding institutional forms of the international legal order – in particular, with a view to establishing the latter’s causative contribution to the burgeoning contradiction between the immanent logic of the global productive forces and the corresponding system of the global relations of production.64 To account for the general patterns of this basic inter-relationship in the present historical conjuncture from a specifically Marxist-jurisprudential point of view, however, requires the development of a certain set of analytical instruments whose function should be to enable not only the generation of ‘empirical descriptions’, but also full, theoretically comprehensive explanations of the broader structural inter-linkages between the general formal fragmentation of the international political arena (multiplicity of states, plurality of adjudicatory procedures, etc.) and the ever-increasing substantive integration of the global economic domain.65 How exactly have these two apparently so dissimilar patterns arisen? What sort of a historical logic has necessitated their emergence in that particular form in which they exist today? Most importantly, how do they relate to, reinforce, and condition one another? Put differently, how does the geopoliticization of the international ‘political’ processes help to displace, and in some cases palliate, the various kinds of social tensions that arise out of the objective ‘economic’ logic of the global class conflict? How does the particular form which this geopoliticization has taken in the last several decades, not least through the medium of the international law discourse, impact on the systemic manageability of the corresponding regimes of ‘economic’ exploitation between classes, nations, and regional groupings? 63. Karl Marx, A Contribution to the Critique of Political Economy (Progress Publishers: Moscow, 1977), at 20-1. The logical implications of this extremely dense statement commonly regarded as the nutshell summary of the whole of theory of historical materialism have been traced out by many different commentators. For a classical starting point, see Georgi Plekhanov, Selected Philosophical Works, Vol. II (Progress Publishers: Moscow, 1976) at 231-2. 64. ‘A Marxist analysis of law [must show] that a reasonably systematic relation exists between the law and the relations of production, with the latter more or less determining the former.’ Mark Tushnet, ‘Marxism as Metaphor’, 68 Cornell Law Review (1983) 281-90 at 281. 65. See B. S. Chimni, ‘An Outline of a Marxist Course on Public International Law’, 17 Leiden Journal of International Law (2004) 1-30 (observing the fundamental significance of the constraining effect of the former logic on the historical development of the latter).

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To resolve a task of such magnitude in an analytically rigorous manner, the first job, it appears to me, that will have to be completed by way of theoretical production should be a systematic re-calibration of those general legal and legaltheoretical concepts that lie at the core of the common ideational framework behind the orthodox international legal discourse – ‘state’, ‘international organization’, ‘customary law’, ‘global civil society’, ‘foreign direct investment’, ‘transnational corporation’, and so on and so forth. The central point behind the exercise is to preempt the strategic disadvantages of counter-disciplinarism. Taken in its ‘standard’ form, the Marxist theoretical tradition does not connect well with the analytical habitus of the international law profession. It fails to map onto the system of conceptual spaces lined up within the latter’s framework in such a violent fashion that, at best, it tends to miss the logic of what in Foucaultian terms we could describe as its fields of ‘presence’, ‘concomitance’, and ‘memory’;66 at worst, to break this framework completely. As the history of various critical-legal-theoretical enterprises repeatedly shows, prospects like this should not be taken lightly. International law has a remarkable capacity to discipline its purported challengers in the cruellest possible way when they stop taking its enunciative traditions seriously.67 The task facing the Marxist theoretical project with regard to these general legal and legal-theoretical concepts, consequently, appears to be essentially twofold. In the first place, the corresponding elements of the Marxist ‘indigenous’ theoretical apparatus need to be re-organised and fine-tuned so as to facilitate the effective transplantation of the relevant concepts in question. In the second place, the concepts themselves need to be recalibrated in such a way as to enable their analytical accommodation within the broader Marxist epistemological framework, constructed as it has been on the basis of a completely different ontological theory.68 66. See Michel Foucault, The Archaeology of Knowledge (trans. by A. M. Sheridan Smith; Routledge: London, 2002) at 64-5: ‘The configuration of the enunciative field also involves forms of coexistence. These outline first a field of presence (by which is understood all statements formulated elsewhere and taken up in a discourse, acknowledged to be truthful, involving exact description, well-founded reasoning, or necessary presupposition) … Distinct from this field of presence one may also describe a field of concomitance (this includes statements that concern quite different domains of objects, and belong to quite different types of discourse, but which are active among the statements [included in the given discursive formation], either because they serve as analogical confirmation, or because they serve as a general principle and as premises accepted by a reasoning, or because they serve as models that can be transferred to other contents, or because they function as a higher authority …) … Lastly, the enunciative field involves what might be called a field of memory (statements that are no longer accepted or discussed, and which consequently no longer define either a body of truth or a domain of validity, but in relation to which relations of filiation, genesis, transformation, continuity, and historical discontinuity can be established)’. 67. Kennedy, ‘Thinking against the Box’, supra note 46, at 460. 68. For a brief overview of the latter, see Althusser, Essays in Self-Criticism, supra note 62, at 40-

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What sort of a practical attitude should guide this process of recalibration? The new analytical apparatus that will be built as a result of this re-calibration will become one of the most important practical instruments in the hands of the leftwing international law community. Whatever knowledge-generative exercise in which the leftwing international lawyers will engage – be it the explanation of the basic distributive impact of the broader TRIPS regime on the development of Third World economies or the disciplining power of the various ‘quality assessment exercises’ on the politics of the international law academia69– whether or not it will be performed effectively to a large degree will depend on the internal consistency of this apparatus. At the same time, and precisely for the same general reason, the new conceptual framework will need to be made not only internally stable in abstract theoretical terms but also easily masterable in terms of its everyday practical potential. Without this, the scale of discursive output will become so modest as to make the political effects of the leftwing international law discursive interventions effectively negligible.

3. Re-Theorizing International Law through the Prism of the Marxist Class-Theoretic Approach How do class relations influence the development of international law? How should the phenomenon of the global class struggle be understood in the context of the contemporary international relations? There are three sets of basic theoretical insights which the classical Marxist tradition provides about this subject. The first set centres around the idea of structural overdetermination; the second, around the question of the transnational class formations; and the third, around the notion of international law as a site of class struggle.

3.1. Structural Overdetermination A good way to understand the general idea behind the concept of structural overdetermination is to start with the following quote from Nicos Poulantzas: [R]elations of power do not exhaust class relations and may go a certain way beyond them. Of course, they will still have class pertinency, continuing to be located, and to have a stake, in the terrain of political domination. But they do not rest 93; Poulantzas, Political Power and Social Classes, supra note 11, at 12-33. 69. For an introductory overview of the latter question in the context of British academia (the only one with which I happen to be sufficiently well acquainted in practice), see Anthony Bradney, ‘The Quality Assurance Agency and the Politics of Audit’, 28 Journal of Law and Society (2001) 430-442; Douglas W. Vick et al., ‘The Perceptions of Academic Lawyers Concerning the Effects of the United Kingdom’s Research Assessment Exercise’, 25 Journal of Law and Society (1998) 536-561.

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on the same foundation as the social class division of labour, and are neither a mere consequence nor homologues or isomorphs of that division; this is so most notably in the case of relations between men and women. [C]lass division is not the exclusive terrain of the constitution of power, [however] in class societies all power bears a class significance.70

At first look, the basic notion behind the concept of structural overdetermination resembles the general idea of intersectionality made popular in recent years by a number of feminist critical scholars.71 In fact, though, the two concepts are fundamentally different. To begin with, it is a general tenet of the Marxist tradition that in order to understand the deeper historical meaning of any given social phenomenon one must always seek to understand it in terms of its causal determination by the dynamics of the underlying class struggle. Whatever role other elements of the social reality may play, for Marxists, it is class struggle which constitutes the fundamental ‘motor of history’.72 ‘The history of all hitherto existing society is the history of class struggle.’73 To say that every historically existing social phenomenon is informed by the logic of the underlying class struggle, however, does not mean, as the Poulantzas quote above shows, that from the point of view of the Marxist theory of history and society all social events have to be understood to have been shaped solely by the terms of their respective class struggle components. Race relations, gender relations, cultural traditions, territory, ideological constructs, institutional regimes all play an important causative role in complexifying the event-determinative effects of class struggle. In many cases, they also help to determine the immediate forms which this struggle takes and thus unquestionably contribute to the formation of the broader patterns of historical development and social reality. The terms on which they do so, however, are, from a systemic point of view, neither arbitrary nor historically contingent. Unlike in the theory of intersectionality, in the Marxist tradition of structural overdetermination the ‘overlapping’ of the event-formative pressures issuing from race, gender, and class logics does not proceed in an unstructured, random fashion. The degree of influence that can be expected to be shown by the non-class factors is itself understood to be a precisely determined social event – determined, that is, by the current state of the corresponding class relations. Put differently, unlike intersectionalists, overdeterminist Marxists do not simply hold that everything is determined by everything else. Their claim, rather, is that 70. Nicos Poulantzas, State, Power, Socialism (trans. by P. Camiller; Verso: London, 2000) at 43. 71. For a locus classicus on this topic, see, e.g., Kimberle Crenshaw, ‘Mapping the Margins: Identity Politics, Intersectionality and Violence against Women’, 43 Stanford Law Review 1241-1299. 72. See Althusser, Essays in Self-Criticism, supra note 62, at 47-51. 73. Marx and Engels, The Communist Manifesto, supra note 1, at 34.

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the terms on which other social factors overdetermine the effects of class struggle are themselves determined, in the last instance, by the logic of class struggle.74 More abstractly, the basic thrust behind the Marxist concept of structural overdetermination can be described as the principled rejection of any theory which suggests that any given social object, event, or process can be legitimately reduced in analytical terms to some other ontologically distinct object, event, or process lying at its core.75 The task of a Marxist commentator from the point of view of the structural overdetermination theory, thus, is never to treat any part, domain, or aspect of social reality as a mere symptom or homological reflection of some other, more ontologically privileged part, domain, or aspect, be it class struggle, economic relations, or the dialectical march of the Weltgeist. The idea, rather, is in all situations to seek to explain the given object in such a way that does not flatten out its irreducible historical complexity, while at the same time recognising that the terms on which this complexity has come to be formed – the conditions, that is, of its historical possibility and sustainability – are ultimately themselves determined by the logic of the underlying patterns of global class struggle. What exactly the idea of making such a recognition may mean in practice I will return to in Section 3.3. For now, let me just reiterate two basic theses: (i) for Marxists history and society are causally overdetermined fields; (ii) the exact pattern of this overdetermination itself is not a random historical occurrence, but one that is fully determined, in the last instance, by the logic of the underlying class struggle.

3.2. Transnational Class Formations In most Marxist circles today it is taken to be essentially self-evident ‘that capitalism has always been a transnational system.’76 One only needs to turn to The Communist Manifesto to see the strength of the authority behind this view: The need of a constantly expanding market for its products chases the bourgeoisie over the whole surface of the globe. It must nestle everywhere, settle everywhere, establish connections everywhere. [T]hrough its exploitation of the world market [it has] given a cosmopolitan character to production and consumption in every country.77

74. More generally on this subject, see further Althusser, For Marx, supra note 55, at 100-16; Poulantzas, Political Power and Social Classes, supra note 11, 13-15; J. K. Gibson-Graham et al., ‘Towards a Poststructuralist Political Economy’, in J. K. Gibson-Graham et al. (eds), Re/ Presenting Class: Essays in Postmodern Marxism (Duke University Press, 2001) 1. 75. Stephen Resnick and Richard Wolff, Knowledge and Class (University of Chicago Press, 1987) at 2-3. 76. W. Tabb, ‘Globalization Today: At the Borders of Class and State Theory’, 73 Science & Society (2009) 34-53 at 35. 77. Marx and Engels, The Communist Manifesto, supra note 1, at 39-40.

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And yet what does it mean exactly to say that capitalism, by its very nature, has always been a transnational system? What impact does this idea have when it comes to explaining the logic of the formation of social classes as a historical process? If the capitalist mode of production by its very design is supposed to have always been cosmopolitan in scope, so too, by definition, it follows, must be the ontological basis underlying its general class structure. And yet what does it actually mean to speak of the subject of class formation in cosmopolitan and transnational terms? According to the general Marxist theory of class, there are three basic points, I think, that need to be borne in mind in order to start answering such questions. 3.2.1. The Conditions for the Emergence of Class Divisions Every class, according to the general Marxist tradition, constitutes, ultimately, a purely historical phenomenon. That is to say, social classes do not come into existence spontaneously ‘of their own accord’ or as a result of some transcendental ontological inevitability. It is an important element of the broader Marxist doctrine that human societies have not always been divided into classes, nor do they necessarily have to be. What creates the objective conditions required for the emergence (and continuous sustainability) of class divisions, from the Marxist point of view, is the establishment within the respective social context of a general system for the social division of labour based on the principle of extending the logic of private property relations to the ownership of the primary means of production. The three elements are analytically independent from one another – one can have a system for the social division of labour that has nothing to do with property relations or is not articulated in terms of who owns what means of production – which means that it is their simultaneous emergence in the same socio-historical context that provides the necessary impulse for the emergence of class relations. The moment the logic of private property relations comes to be extended to the ownership of the primary means of production and a corresponding system for the social division of labour takes form on that basis, what follows from a Marxist theoretical point of view is the emergence of a regime of economic exploitation – that is to say, one part of the society, the exploiters, starts to live off another part of the society, the exploited, and what differentiates the one from another takes place primarily in the field that Marxists call the ‘economy’. (I will explain the meaning of putting the quotation marks around the word ‘economy’ in Section 3.3.) It is this sort of division – between the exploited and the exploiters – that in the Marxist tradition provides the archetypal context for the understanding of the idea of class.

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Without the privatization of the primary means of production, there would be no economic exploitation.78 Without economic exploitation, there would be no exploiters and no exploited – and, thus, no classes. The moment, consequently, the rule of private property is abolished in the domain of productive relations, the central historical precondition for the existence of class divisions – in the Marxist sense of the word – disappears. 3.2.2. The Primacy of Class Struggle over Class Identities As Marx observes in The German Ideology, ‘[t]he separate individuals form a class only insofar as they have to carry on a common battle against another class.’79 Put differently, from the traditional Marxist point of view, ‘classes do not firstly exist as such and only then enter into a class struggle’ – they arise in the very process of that struggle itself.80 As in Saussurean semiotics (and to a lesser extent Schmitt’s theory of the political), the logic of the relation, in other words, always remains ontologically primary vis-à-vis the participant elements of that relation.81 It is the process of the class struggle, which creates the corresponding classes and sub-classes, not the other way around.82 People do not obtain their collective identities independently from their intercourse with one another, and the latter is always determined by the logic of their productive relations. Or, to phrase it somewhat more generally, we become what we are in terms of our class membership solely because of those objective positions which we come to occupy in the context of our productive relations with one another, not for any other reason, be it our education, descent, or size of disposable income.83 3.2.3. Class Structure as a Product of the Material Objectivity of Economic Relations In the light of everything that has been said so far, it follows that from a Marxist point of view the question of the objective existence of any given class formation depends ultimately neither on the immediate contents of its members’ shared 78. See Roemer’s argument in infra n.55. 79. Karl Marx and Frederick Engels, The German Ideology (ed. by C.J.Arthur; Lawrence & Wishart: London, 1999) at 82. 80. Nicos Poulantzas, Classes in Contemporary Capitalism (trans. by David Fernbach; NLB: London, 1978) at 14. 81. See Jonathan Culler, The Pursuit of Signs (Routledge: London, 2002), 44-5; Carl Schmitt, The Concept of the Political (trans. by G. Schwab; University of Chicago Press, 1996). 82. ‘Class identity becomes legible as a potential effect of [class struggle], rather than merely its origin or ground. Commonality and community [are] produced, not simply expressed, through political mobilization.’ Gibson-Graham, ‘Towards a Poststructuralist Political Economy’, supra note 74, at 19. 83. See Cohen, Karl Marx’s Theory of History, supra note 13, at 73-6.

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consciousness, nor on their capacity for undertaking coherent group action, but solely and exclusively on the objective structure of the historically created system of productive relations in which they participate.84 ‘It is not the consciousness of men that determines their existence, but their social existence that determines their consciousness.’85 There exists, in the end, ‘no need for there to be [any] “class consciousness” or autonomous political organizations for the class struggle to take place.’86 What brings the disparate social actors together into a single class formation, thus, is not their ‘collective spirit’ or their inclination towards obtaining a common institutional framework, but the material objectivity of their shared economic positions.87 How exactly should one understand this last sentence? According to the basic Marxist theory, the essential character of every historically given class-centred system for the social division of labour derives ultimately from the corresponding system of the practically implemented relations of ownership dominant within that society – that is to say, relations of ownership in the sense of Eugen Ehrlich’s concept of the ‘living law’,88 rather than the classical formalist-positivist concept of legality – the actually observed ‘customary’ law-in-action, if you will, rather than the formally posited system of legislative ordinances.89 84. See Erik Wright, ‘Rethinking, Once Again, the Concept of Class Structure’, in Erik Wright (ed.), The Debate on Classes (Verso: London, 1998), 269-348 at 278-300. 85. Marx, A Contribution to the Critique of Political Economy, supra note 63, at 21. 86. Poulantzas, Classes in Contemporary Capitalism, supra note 80, 17. 87. See Wright, ‘Rethinking, Once Again’, supra note 84, 280-8. The word ‘objectivity’ in the last phrase signifies that the position in question has to be understood in the strictly functionalist sense, not psychologistically. See Cohen, Karl Marx’s Theory of History, supra note 13, at 278-96. 88. ‘This then is the living law in contradistinction to that which is being enforced in the courts and other tribunals. The living law is the law which dominates life itself even though it has not been posited in legal propositions. …Who would judge our family life or the life of our societies by the law-suits that arise in the families or in the societies? …The living law is not the part of the content of the document that the courts recognize as binding when they decide a legal controversy, but only that part which the parties actually observe in life.’ Ehrlich, Fundamental Principles of the Sociology of Law, supra note 44, at 493-7. For a general overview of the concept of ‘living law,’ see also David Nelken, ‘Law in Action or Living Law? Back to the Beginning in Sociology of Law’, 4 Legal Studies (1984) 157-174. 89. The distinction suggested here is important insofar as it helps reveal the essential source of that infamous ‘problem of law as a constitutive factor’ (see Tushnet, ‘Marxism as Metaphor’, supra note 64, at 281; Cohen, Karl Marx’s Theory of History, supra note 13, at 217-8) which has occupied Marxist scholars for such a long time. In its simplest form, the problem can be formulated as follows. According to the classical Marxist tradition, law constitutes an integral element of the social superstructure. Its internal structure and content are, therefore, determined by the corresponding structure and content of the economic base, i.e. by the systemic logic of productive relations. The systemic logic of productive relations, in its turn, however, is determined ultimately by who owns the primary means of production. Ownership is a legal category. If a legal regime is thus ultimately determinative of the fundamental structure of productive relations, how can one say then that the economic logic determines the legal order?

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Put differently, every class-centred system for the social division of labour is defined, in the final analysis, by the general manner in which the different members of that society relate, firstly, to the corresponding totality of the various means of production (including land) distributed across that society; and, secondly, to the various forms of material output produced through the deployment of these means of production.90 Seen through the prism of these two relational structures, every historically known human society, it follows, can be divided, roughly, into three basic parts or groups of economic actors. The first group includes all those members of the given society who through their direct labour actually produce the basic material foundations required to ensure the physical survival and reproduction of that social unit as a whole (food, shelter, roads, etc.). The second group, in contrast, includes all those who, while existing side by side with the labouring producers, contrive to live off the latter’s productive activities by systematically expropriating some part of the total material output they produce. (In some social scenarios, such expropriations tend to proceed violently; in others, the violent element remains generally sublimated. What matters, ultimately, however, is the fact of the systematicity of the expropriative act rather than its immediate outward form.)Finally, the third group includes all those remaining members of the given social unit who without engaging in any immediately productive labour do not at the same time appropriate any part of the total material output for themselves but only help the second group to organize and continually reproduce the established state of affairs between it and the first group in return for a certain payout.91 In standard Marxist usage, the third group is traditionally described as the middle class.

As the distinction suggested above shows, this sense of circularity which so troubles Cohen and Tushnet derives, ultimately, from the simple lack of conceptual precision in distinguishing between what in reality are two radically different social phenomena. It is only if we understand ‘law’ in its Ehrlichian sense that it will have to be recognized, as Tushnet insists, as ontologically constitutive vis-à-vis the economic base. Taken in the more traditional formalist-positivist sense, ‘law’ remains, just as the classical Marxist tradition has always insisted, a completely superstructural phenomenon. (For a similar explanation, but couched in terms of a differentiation between ‘real economic ownership’ and ‘legal ownership,’ see also Poulantzas, Classes in Contemporary Capitalism, supra note 80, at 18-9.) 90. The theoretical foundations of this argument are further elaborated in Resnick and Wolff, Class Theory and History, supra note 19, at 8-10 and Erik Wright, Classes (Verso: London, 1985) at 64-98. 91. ‘[I]n all societies, one part of the population interacts with nature to produce a quantity of output. The total quantity of output always exceeds the portion that is returned to this part of the population (the workers) for its consumption and reproduction. This excess is the ‘surplus’. A second part of the population immediately receives this surplus from the producers. Finally, a third part of the population obtains distributions of portions of the surplus from the second part.’ Resnick and Wolff, Class Theory and History, supra note 19, at xi.

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Generally, the more sophisticated the level of the productive forces92 employed in the given productive context becomes, the greater also tends to become the general gap between what the labouring producers ultimately end up producing and what they practically require to retain as a group to enable their own immediate physical survival and reproduction. In Marxist usage, the name which is normally given to this gap is ‘surplus value’ or ‘surplus product’. The logic by which the surplus product comes to be separated from the labouring producers and becomes distributed across the rest of the society forms accordingly, in Marxist understanding, the chief defining criterion by which the corresponding system of productive relations is characterized in terms of its basic mode of production.93 Seen from this angle, the principal defining characteristic of the capitalist mode of production lies in the fundamental separation in terms of the practical legal reality (Ehrlich) of the general right of ownership over all socially distributed means of production from the actual regime of their physical use and possession by the labouring producers. Insofar as this separation comes to be successfully enforced in practice, it becomes possible, as Marx shows in the third volume of Capital, for the various participants of the given productive system to start treating the removal of the surplus product from the labouring producers as if it were some form of a rent payable by the non-owning labourers to the non-labouring owners of the corresponding means of production for the right to use the latter’s property.94 In time, as the degree of the specificity of the produced output reaches ever higher levels – computer chips, not bread; mobile telephones, not boots – and the in92. That is to say, the historically produced combination of the existing instruments and means of production and the corresponding technological knowledge and what today is called human capital. 93. In practical terms, the idea of the mode of production represents, of course, an entirely abstract category. None of the historically known human societies has ever organized its productive processes solely in terms of one single mode of production. All of them have rather tended to adopt more than one distinct modes of production across different areas of their life. The particular combination of productive modes which each historically given human society has adopted in its corresponding system of production in Marxist usage is called the social formation. For further elaboration, see, e.g., Callinicos, Is There a Future for Marxism?, supra note 9, at ix; Poulantzas, Political Power and Social Classes, supra note 11, at 15 ‘The social formation itself constitutes a complex unity in which a certain mode of production dominates the others which compose it. … The dominance of one mode of production over the others in a social formation causes the matrix of this mode of production … to mark the whole of the formation.’ The immediate practical implication of this distinction for the purposes of the present analysis can be found in Poulantzas, Classes in Contemporary Capitalism, supra note 80, 22: ‘[A] concrete society (a social formation) [always] involves more than two classes, in so far as it is composed of various modes and forms of production.’ For further investigation of the relationship between the concepts of the mode of production and social formation, see also Erik Olsen, ‘Social Ontology and the Origins of Mode of Production Theory’, 21 Rethinking Marxism (2009) 177-195. 94. Marx, Capital, Vol. III, supra note 3, at 770-92.

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ability of the individual labourers to exchange effectively the retained segment of the final product they produced for whatever other products they may need in order to satisfy their physical and social needs reaches an ever greater intensity, the vector of the transactional relationship switches. The whole of the material output produced by the labouring producers becomes now appropriated by the non-labouring owners en bloc in exchange for a modest monetary compensation roughly equivalent in abstract terms to the size of that original segment of the final output that the labourers required to retain in the first place. Thus is born the mechanism of waged labour and the basic algorithm of the capitalist mode of production is completed. At what stage does exploitation enter the picture? So long as the labouring producers do not themselves acquire the right of ownership over the sociallydistributed means of production, i.e. those means of production which, unlike their labour-power, exist ‘outside their own bodies,’ it becomes possible for the non-labouring owners not simply to disengage en masse from the actual productive process, but to start earning their livelihood essentially as rentiers.95 To the extent to which the material well-being of this rentier elite comes then to depend on its ability to prevent the labouring producers as a group from terminating this state of affairs, one can speak in this context of the emergence of a regime of economic exploitation.96 Insofar as the practical operation of this regime of exploitation requires the rentier elite to resort to the services of another group of people who are neither rentiers themselves nor part of the productive labour force, one can also speak in such conditions of the corresponding emergence of the middle class. 3.2.4. Marxist Theory of Class Formation In sum, according to the classical Marxist tradition, the general logic of class formation is ultimately driven by two factors: (1) the state of the disparities in

95. See Poulantzas, Political Power and Social Classes, supra note 11, at 26-7. 96. ‘In Marxian exploitation one class appropriates the surplus labour performed by another class through various mechanisms. The income of the exploiting class comes from the labour performed by the exploited class. There is thus a straightforward causal link between the poverty of the exploited and the affluence of the exploiter. The [latter] benefits at the expense of the [former].’ Wright, Classes, supra note 90, at 65. ‘If producers have differential ownership of the means of production then a regime of competitive markets is sufficient to produce exploitation … as predicted by classical Marxism. … In this analysis, coercion is still necessary to produce Marxian exploitation and class. However, it suffices for the coercion to be at the point of maintaining property relations and not at the point of extracting surplus labour directly from the worker.’ John Roemer, ‘New Directions in the Marxian Theory of Exploitation and Class,’ in John Roemer (ed.), Analytical Marxism (Cambridge University Press, 1986) at 81-113 at 93.

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the practical-legal ownership of the primary means of production and (2) the corresponding modality of the extraction of surplus value. Under capitalism, the members of one part of society – the working class – get to retain full practical-legal ownership only over their own ‘intrinsic’ labour power. The ownership of all the other primary means of production is assumed by another part of society – the bourgeoisie. Whatever socially valuable product the working class ends up producing invariably gets appropriated by the bourgeoisie in return for wage-like payments generally set at the level required to ensure the basic survival and reproduction of the working class as a social entity. To enforce and organize this regime of productive relations, a third part of the society – the middle class – is ‘hired’ in return for a certain segment of the extracted surplus value which also regularly takes the form of wage-like payouts but which does not for all that put the middle class on the same social board as the working class. Considering that whatever disparities in the material well-being between the three groups come to arise in such conditions all derive from the uninterrupted continuation of the private regime of ownership over the socially distributed means of production, the basic relationship between the three groups can be said, in Marxist terms, to be economically exploitative in nature and each one of the three groups concerned, furthermore, can be said to constitute a social class, that is to say, a relatively stable social entity whose members are objectively endowed with a common set of economic interests even if in some cases they may not necessarily be aware of it. 3.2.5. Transnational Class Formations The existence of a wide-ranging system of the worldwide division of labour based on the underlying disparities in the practical-legal ownership of the socially distributed means of production is a fact which today hardly requires any extensive demonstration. The same goes for the corresponding patterns in the appropriation of surplus value and the basic dependence of this state of affairs on the continuous preservation of a necessarily globalized regime of exploitation and waged labour.97 Seen from this perspective, the basic reality of the structural 97. See further Walden Bello and Mara Baviera, ‘Food Wars’, 61/3 Monthly Review (2009), (visited 22 February 2010); Hillel Ticktin, ‘A Marxist Political Economy of Capitalist Instability and the Current Crisis’, 37 Critique (2009) 13-29; Sanjay Reddy and Camelia Minoiu, ‘Real Income Stagnation of Countries 1960-2001’, 45 Journal of Development Studies (2009) 1-23; Jennifer Jihye Chun, ‘Legal Liminality: The Gender and Labour Politics of Organising South Korea’s Irregular Workforce’, 30 Third World Quarterly (2009) 535-550; Gay Seidman, ‘Labouring under an Illusion? Lesotho’s “Sweat-free” Label’, 30 Third World Quarterly (2009) 581-598; Kathy Le Mons Walker, ‘Neoliberalism on the Ground in Rural India: Predatory Growth, Agrarian Crisis, Internal Colonization, and the Intensification of Class Struggle’, 35 Journal of Peasant Studies (2008) 557-620; Pem Davidson Buck, ‘Keeping the Collaborators on Board as the Ship Sinks: Toward a Theory of

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separation of the global economic arena into the transnational capitalist class (TCC), the transnational working class (TWC), and the transnational middle class (TMC) can hardly be put into question. But how exactly should one understand the ontological status of each of these class formations in more practical terms? Have the TCC and the TMC replaced the historically much more familiar phenomena of national bourgeoisie and national middle class? Does the emergence of the TWC suggest that the workers of all countries have at long last united and now rattle their chains in unison? To turn to the first question first, the main thing which needs to be established about each of these three class formations is that, firstly, none of them exists as a self-enclosed, reified social entity. Secondly, none of them, furthermore, exists to the exclusion of, or in an opposition to, the corresponding national or regional class formations. Take the TCC, for instance. Judging by the trajectory of the underlying evolution in the class relations dynamics worldwide and the respective patterns of surplus value extraction, the TCC, in the Marxist sense of the term, represents a fully verifiable social phenomenon. It consists, in the first instance, of the owners of the various socially distributed means of production employed in transnational productive contexts, and it is embodied, as a rule, in the form of various transnational corporations and private financial institutions.98 Inasmuch as the transnational productive process, however, does not in itself automatically supplant all other types of productive processes occurring on a smaller scale (and transnational corporations do not automatically replace all other forms of corporate entities), the TCC, being a structural object-effect only of the transnationally organized system of productive relations, does not automatically replace national or regional-based capitalist class formations. From the point of view of productive relations, it takes shape on a somewhat different level of organizational abstraction. And while it would certainly not be incorrect to infer that to the extent to which differently scaled organizational models (versions of capitalism) are bound sooner or later to come into conflict with one another thus leading inevitably to the differently scaled capitalist class formations getting into one another’s way, it most certainly does not follow, as some of the writing on the subject seems to imply, that the concept of the TCC represents a physically distinct group of social forces which necessarily exists ‘in competition with naFascism and the U.S. “Middle Class”’, 20 Rethinking Marxism (2008) 68-90; Kim Moody, ‘Harvest of Empire: Immigrant Workers’ Struggles in the USA’, 45 Socialist Register (2008) 315; Stephanie Barrientos and Sally Smith, ‘Do Workers Benefit from Ethical Trade? Assessing Codes of Labour Practice in Global Production Systems’, 28 Third World Quarterly (2007) 713-729; Mike Davis, Planet of Slums (Verso: London, 2006); John Crabtree, ‘The Impact of Neo-liberal Economics on Peruvian Peasant Agriculture in the 1990s’, 29 Journal of Peasant Studies (2002) 131-161. 98. Robinson and Harris, ‘Toward a Global Ruling Class?’, supra note 59.

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tionally based capitals.’99 The same group of people who form a national-based capitalist class formation – say, the shareholders in a medium-sized supermarket chain – can as easily also become active members of the TCC by investing in Nike, Nestle, or the Barclays Bank. That they may thus end up occupying what Erik Olin Wright dubbed ‘contradictory class locations’100 is an entirely separate issue. One thing which they would not be in this case is members of a materially distinct social collectivity. The same logic mutatis mutandis holds also for the TMC and the TWC. Every empirically observable pattern of surplus value extraction worldwide increasingly confirms the formation of these two classes in the global economic arena. None of these patterns, nevertheless, suggests in any meaningful sense that either of them comprises a collection of the ‘transnationally oriented fractions’101 of the respective national class formations. For, indeed, the idea of identifying class structures on the basis of the underlying ‘transnational orientations’, in the final analysis, represents nothing other than a return of the essentially idealist habit of prioritizing consciousness over objective social dynamics. From the point of view of historical materialism, however, the causal relationship between the two is supposed to be exactly the opposite. The forms of collective consciousness carried by a typical investment consultant in New York or Dubai or an oil baron in Moscow may be overlaid with any number of nationalist, quasi-nationalist, or cosmopolitan patterns. None of this, in the end, from the Marxist point of view, is going to settle the question of their class membership. Just as one cannot, in Marx’s words, ‘judge an individual by what he thinks of himself,’ so, too, one cannot judge the objective character of the relations into which social agents enter by the ‘ideological forms in which [they] become conscious’ of them.102 It is solely by virtue of the objective position they come to occupy within the general system of economic production that lawyers, bankers, media magnates, illegal migrant workers, agricultural labourers, and even high-profile oil barons ‘obtain’ their class identity in the Marxist sense of the term. One does not need to reside in London or Monaco, to speak fluent English, or to interact constantly with partners living abroad to become a member of a transnational class formation. Insofar as one’s contribution to the historically existing processes of socio-economic production in which one currently participates creates effects, however minuscule, beyond one’s immediate geo-economic vicinity, one ineluctably becomes part of one or the other of the three transnational classes. 99. William Robinson, ‘Global Capitalism: The New Transnationalism and the Folly of Conventional Thinking’, 69 Science & Soceity (2005) 316-328 at 318. 100. Erik Wright, ‘A General Framework for the Analysis of Class Structure’, in Wright, The Debate on Classes, supra note 84, 3-43 at 24-8. 101. Robinson, ‘Global Capitalism’, supra note 99, at 318. 102. Marx, A Contribution to the Critique of Political Economy, supra note 63, at 21.

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The words ‘contribution’ and ‘effects’ are, of course, the key words here. As the extent of one’s contribution to the system of global economic production changes, so, too, does the ‘degree’ of one’s participation in the respective transnational class formation. It would be difficult for an average independent barber in a small village in India to become anything but a member of the local petty bourgeoisie. But his neighbour working in a local call centre can as easily turn out to be a member of the national middle class as of the TMC: the more foreign businesses outsource their customer support services to that call centre, the more pronounced his participation in the TMC structures becomes.103 Still, one should be careful not to over-emphasize too much this sense of socio-ontological relativity. Most economic agents’ relationship to the class formations in which they participate is essentially stable. All media magnates and hedge fund investors are virtually invariably members of the TCC. All sweatshop labourers are virtually invariably members of the TWC. All policy advisers and analysts working in the banking and financial sectors virtually always belong in the TMC. Where things start getting a little messy is when one starts dealing with that ‘contradictory class positions’ phenomenon mentioned earlier – a midlevel manager in a supermarket chain moonlighting as a small-time investor in the stock market – but even this, ultimately, only requires a series of essentially minor analytical adjustments.104 The primary patterns themselves remain fundamentally clear. Neither the TCC, nor the TMC, nor, especially, the TWC represents a formally organized social entity. None of them is ideologically fully self-conscious. None of them is internally coherent in organizational terms. The TCC alone is split in a whole variety of different ways, the classic divide between the transnational industrial capital and the transnational finance capital being only the most prominent one. In the final analysis, nevertheless, for the purposes of our present discussion, none of this ultimately matters. Why? Because, as I have mentioned earlier, to build a genuinely consistent Marxist theory of international law we need to develop ‘only’ a general account explaining the systemic inter-relationship between the internal logic of the international legal domain and the corresponding logics of global productive relations, the global division of labour, and the worldwide extraction of surplus value. We do not need to do any of this by reimagining everything that happens in the field of international relations as if it were produced by the actions of the transnational class formations themselves. 103. For a fundamentally different take on the concept of the transnational classes, see Leslie Sklair, The Transnational Capitalist Class (Blackwell: Oxford, 2001); Robinson and Harris, ‘Toward a Global Ruling Class?’, supra note 59. 104. The debate on peasantry in the late 19th-early 20th century Marxism provides a good indication of the actual scale of the underlying theoretical problematic and its possible solution. See, e.g., Georg Lukacs, A Defence of History and Class Consciousness (trans. by Esther Leslie; Verso: London, 2000) at 86-93.

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A Marxist theory of international law cannot be created by simply replacing one set of allegedly primordial actors, Westphalian nation-states, from whose interactions all international legal phenomena are imagined to derive with another such set, be it the transnational class formations or North/South-style geopolitical camps. The basic, most fundamental objective underlying the Marxist class-theoretic enterprise in contemporary international law, thus, is not limited simply to cancelling out the ontological centrality of the Westphalian statal form in the broader international legal-theoretical discourse. The ultimate aim, rather, is to undo the idea of an ontologically central subject in international legal theory altogether. Recall once more the second principal tenet of the general Marxist theory of class reviewed earlier. It is the logic of the social intercourse which produces collective (including corporate) formations. All social intercourse, in the final analysis, is an intercourse between people. To construct a genuinely consistent Marxist-theoretical account of international law, it follows, we must construct it in terms of a cast list which includes ultimately only human individuals – not classes, not families, not states, nor any other type of hypostatized social entities, but only disparate human individuals whose actions and motivations, to be sure, will always be informed and overdetermined by any number of broader socio-historical factors and collective processes, but who, in the end, still always remain nothing more and nothing less than human individuals. That said, let us be clear about this: the idea of rethinking international law as a phenomenon created between people should not in the present context be taken as an invitation to return to subjective voluntarism, liberal humanism, or any other form of idealist philosophy. As numerous Marxist and non-Marxist commentators have repeatedly pointed out, ‘Man himself,’ in the end, constitutes nothing more than a purely historical phenomenon, an ontological category that is neither self-evident nor self-sufficient, but which requires, therefore, always to be explained not only in terms of what conditions were necessary to enable its emergence but also in terms of what conditions enable its analytical sustainability.105 105. See Louis Althusser, The Humanist Controversy and Other Writings (trans. by G. M. Goshgarian; Verso: London, 2003) at 259: ‘[For Marx, already in The German Ideology] Man has ceased to be a fundamental rational category that renders History intelligible; on the contrary, Man is [a] hollow notion which … is by its very nature incapable of explaining anything whatsoever, but has itself to be explained, that is, reduced to what it is: the religious impotence of a ridiculous “wish” to take part in a History that does not give a damn about the petty bourgeois who want to lay down the law in it. A vain, empty discourse, Man is, in essence, the diversionary tactic of a reactionary ideology.’ See also Michel Foucault, The Order of Things (Routledge: London, 2002) at 422: ‘[The concept of ] man is a recent invention …which began a century and a half ago and … has made it possible for the figure of man to appear [as] the effect of a change in the fundamental arrangements of knowledge.’

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But let us leave this question aside for now. The role of the ‘human element’ in the constitution of the international legal process is a subject covered in Section 4 below. For the time being, let us simply register this thought and put it on the proverbial table alongside the concomitant distinction between analytical categories – the instruments of cognition – and ontological facts – the objects that require to be cognized. As an analytical category, classes represent a primary heuristic instrument in Marxist-theoretical discourse. As ontological facts they represent only a particular way in which people relate to one another. That is to say, they constitute the object-effects of a certain form of socialization, but not intrinsically existing transcendentally guaranteed social entities.106

3.3. International Law as a Site of Class Struggle There has been a great deal of discussion so far that involved the use of the term ‘economic’: ‘economic exploitation,’ ‘shared economic positions,’ ‘economic interests’, etc. Any reader, however sympathetic or inattentive, in such circumstances should be tempted to conclude that, however gratuitous or baseless the various Marxist luminaries may have claimed it to be, the classical charge of vulgar economism which its opponents have so regularly raised against the Marxist tradition is most probably fundamentally justified.107 To what extent would this be a correct conclusion? To be sure, it would be effectively impossible to deny that from the traditional Marxist point of view every class formation represents, first and foremost, an essentially economic phenomenon, and that the process of class struggle, therefore, must, by definition, be understood as an essentially economic process. Nevertheless, as every attentive student of Marxism would be able to confirm, the concept of the Economic which underlies the general Marxian theory does not, in fact, carry the same ideational content as the similarly labelled concept that is commonly used in mainstream liberal discourse. Put differently, what Marx and his (more intelligent) followers have in mind when they use the term ‘economic’ is not at all identical with what the likes of Paul Samuelson and John Maynard Keynes speak about when they deploy the same label.108 The terminological patterns may be the same, but the ideational constructs are not. In a nutshell, from the general Marxian point of view, the basic ontological horizon within which the reality of economic relations takes place is not – unlike in the liberal economic usage – understood to be limited only to the areas 106. For further development, see also Althusser, The Humanist Controversy, supra note 105, at 263-4. 107. See, e.g., Plekhanov, Selected Philosophical Works, supra note 63, at 251-82; Althusser, For Marx, supra note 55, at 201-13. 108. For a good summary of that conception, see, generally, Paul Samuelson, Economics (10th edn) (New York: McGraw-Hill,1976).

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of commodity manufacturing, circulation, distribution, and finance. Rather, it is conceived to be fully coextensive with the whole totality of all social relations arising in the process of production and reproduction of social formations, i.e. the process by which ‘the means of existence of these social formations’ – the material conditions for the continuation of social life – are created and recreated. In practical terms, what this includes is not only those productive relations that surround the production and consumption of food, clothes, and the means of transportation, but also those relations which arise in the process of the production and reproduction of the labour force itself, including its educational capital and skills – as well as, by logical implication, all those relations which determine how different members of the given society become divided into – or as Marx put it, ‘subsumed under’ – different sets of productive relations.109 Proceeding from this basic premise, it follows then that to propose from a Marxist point of view that the process of class struggle constitutes in its essence a fundamentally economic process is effectively tantamount to asserting that the reality of the global class struggle extends ultimately to every dimension and field of the global social intercourse – since, unlike in the sphere of intimate life, all social relations which take place in the global social arena are inevitably rooted in the processes of material production. ‘No matter how valid and useful the theory of [socio-historical] factors may have been in its time, it [simply] does not stand up to any criticism today,’ wrote Plekhanov already as far back as the end of the 19th century.110 Not only is it the case, that the classical Marxist tradition has never aimed to reduce the phenomena of politics, law, ethics, art, etc. to just so many formal projections of some hidden ‘original substance’ called the ‘economy,’ but it has actually always considered the whole ontology of social life, from which the liberal-bourgeois tradition has extrapolated these conceptual categories, through the prism of a completely different set of ontological taxonomies and epistemological historiographic assumptions. Every set of social relations which is anyhow related to the processes of material production belongs, according to the classical Marxist tradition, firmly in the domain of the ‘economic life’. The same set of social relations, when viewed from an epistemic perspective which privileges the examination of its immanent power-domination elements, however, can be considered also as part of the general domain of politics. If any one of these power-domination elements entails the active use of any socially sustained system of beliefs or truth-propositions, it

109. See Karl Marx, ‘Introduction to a Critique of Political Economy’, in Marx and Engels, The German Ideology, supra note 79, at 124-39. See also Poulantzas, Classes in Contemporary Capitalism, supra note 80, at 18-21. 110. Plekhanov, Selected Philosophical Works, supra note 63, at 227.

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can also be further conceptualised as part of the general domain of ideological production – and so on and so forth.111 Put differently, from the point of view of the classical Marxist tradition, every social relationship can – and, indeed, if we take the idea of structural overdetermination to its logical conclusion, needs to – be analyzed and categorized from a whole multiplicity of different perspectives. Being an ‘economic fact’ or a ‘political fact’ represents, thus, nothing more than an analytical condition. It is certainly not an ontological state. What exists in empirical reality, from the Marxist point of view, is only one single undifferentiated totality of the social intercourse. In fact, that is precisely what the idea of the dialectical approach – or as Slavoj Žižek calls it, the parallax view – reflects.112 ‘In dialectics’, writes Lukacs, ‘as opposed to “metaphysics” … the definite contours of concepts (and the objects they represent) are dissolved’ because the very notion of the dialectical cognition of reality implies that the ontological constitution of the latter represents, in the end, not some pre-existing ‘one-sided and rigid’ Cartesian-style causality but a historical interaction between the cognising subject and the cognised object.113 Unlike liberal-bourgeois thought, the Marxist tradition does not, thus, treat the ideas of ‘economy’, ‘politics’, ‘law’, ‘art’, etc., as though they were somehow reflective of some objectively verifiable essences. The only objectively verifiable essences that can be said to exist from the Marxist-theoretical point of view are what Marcel Mauss used to call ‘total social facts,’114 i.e. facts which in the final analysis have neither a primarily economic nor a primarily political, legal, cultural, libidinal, etc., character. ‘Economy’, ‘politics’, ‘law’ – all these terms, from the classical Marxist point of view, ultimately represent nothing more than just so many historically convenient labels of description, symbols that in the end say far less about the inherent objective characteristics of those phenomena which they purport to describe than about the various historically determined analytical focuses which the describers in question have brought to their studies of those phenomena.

111. See Poulantzas, State, Power, Socialism, supra note 70, at 36: ‘It is not true, as Foucault or Deleuze would have it, that relations of power are, for Marxism, “in a position of exteriority vis-à-vis other types of relation: namely, economic processes …” The economic process is class struggle, is therefore relations of power.’ 112. Slavoj Žižek, The Parallax View (MIT Press: Cambridge MA, 2006). 113. Georg Lukacs, History and Class Consciousness (trans. by R. Livingstone; Merlin Press: London, 1971) at 3. 114. See Marcel Mauss, The Gift (trans. by W. D. Halls, Routledge: London, 2002), at 3-4: ‘In these “total” social phenomena, as we propose calling them, all kinds of institutions are given expression at one and the same time – religious, juridical, and moral, which relate to both politics and the family; likewise economic ones, which suppose special forms of production and consumption.’

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Or, to quote Lukacs again: The intelligibility of objects develops in proportion as we grasp their function in the totality to which they belong. This is why only the dialectical conception of totality can enable us to understand reality as a social process. For only this conception dissolves the fetishistic forms necessarily produced by the capitalist mode of production and enables us to see them as mere illusions which are not less illusory for being seen to be necessary. … They can all be seen as ideas necessarily held by the agents of the capitalist system of production. They are, therefore, objects of knowledge, but the object which is known through them is not the capitalist system of production itself, but the ideology of its ruling class.115

* A question inevitably arises at this point: to be sure, all this sounds like a fine piece of theoretical argument, but what does it have to do with the leftwing international law project? What is the immediate practical significance of all these ideas from the point of view of international legal practice? The answer, if you have come thus far in the argument, I hope, should not be very difficult to identify. If we take all these ideas that are outlined above seriously, if, that is, we put them all together and articulate them as parts of one single, internally coherent framework, it seems to me that the most obvious conclusion that will flow will be the following: even though classes do not themselves possess the quality of social agency, even though in the eyes of the positivist legal analysis they cannot be regarded as subjects of international law, from the Marxist point of view, international law still represents one of the main arenas for the conduct of the global class struggle – and thus, by implication, for the constitution of the global class structure and the formation of the respective transnational class configurations. Furthermore, if this line of reasoning should on any, even the most general level prove correct, it would follow then that every categorical proposal for an across-the-board elimination of the external autonomy of the international legal practice must, as a matter of general strategic consideration, be unreservedly rejected and dismissed as fundamentally misguided. If the domain of international law constitutes an arena of class struggle, then it has to be treated exactly the same way in which every other domain of such nature is treated: not under the rubric of any ‘principled’, aprioristic, sweeping postulates, but on the basis of purely pragmatic, utterly contextual determinations. As Lukacs famously observed, from the Marxist point of view, the whole problematic of legal action ultimately comes down to ‘a mere question of tactics, 115. Lukacs, History and Class Consciousness, supra note 113, at 13-4.

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… a question to be resolved on the spur of the moment, one for which it is scarcely possible to lay down general rules as decisions have to be taken on the basis of immediate expediencies.’116 Or, as a more recent commentator puts it, the only general prescription which holds true across the board for a Marxist legal professional is the principle of ‘principled opportunism’.117 Let there be no ambiguity about this: the argument that I advance here is not that the leftwing international law project should adopt the stance of liberal legalism. It certainly goes without saying that any call for a categorical juridification of the global normative standards which in terms of their substantive effects are more likely to benefit the TCC than the TWC should be actively rejected on strategic grounds. That much is beyond doubt. What is also beyond doubt, however, is the ‘brute historical fact’ that the forces of the Global Right today possess far greater stocks of general political capital than do their counterparts on the Global Left. They have access to considerably larger cadre pools, exercise much more effective control over the transnational ideological apparatuses, and can afford to commit much greater organizational and institutional resources to every ideological struggle they get involved in. Any categorical merger between the ‘legal’ and the ‘openly political’ forms of social intercourse in the international arena, under such circumstances, it follows, will inevitably enable them to capitalize on their ‘extra-legal’ advantages much more effectively than their leftist rivals, which means that over a long enough time line it is going to benefit their interests far more than it will the interests of the Global Left. If only for this reason alone, advocating a posture of international legal nihilism at this stage in the world-historical development, it seems, should be regarded as an essentially reactionary political enterprise. That said, one must also show caution not to slip at this point uncritically into a culture of vulgar juridical instrumentalism. The idea that international law can and should be regarded as a site/medium for the conduct of the global class struggle, correct as it is on its own terms, should not be allowed to conceal the fact that the use of the legal form itself can have far-reaching ideological effects, not all of which are progressive in nature. As numerous commentators from Pashukanis118 to Poulantzas119 observed, the ‘abstract, formal and general character’ of the legal process (and the modern legal discourse in general) not only helps its participants to learn to imagine their lives as unfolding in an essentially ‘continuous and homogeneous space-time’ – it 116. Ibid., at 264. 117. Knox, ‘Marxism, International Law, and Political Strategy’, supra note 61, at 433. 118. See Pashukanis, ‘The General Theory of Law and Marxism’, supra note 62. In its more general formulation, the argument can also be glimpsed in Lukacs’s seminal exploration of the ‘commodity structure’ modality of social intercourse. See Lukacs, History and Class Consciousness, supra note 113, at 83ff. 119. See Poulantzas, Political Power and Social Classes, supra note 11, at 130-1.

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also helps to interpellate120 them as abstract individuals formally free and equal to one another: It consecrates, and thus helps to establish, the differential fragmentation of agents (individualization) by elaborating the code in which these differentiations are inscribed and on the basis of which they exist without calling into question the political unity of the social formation. [It helps] the agents ‘loosen’ and ‘free’ themselves from their territorial-personal bonds [thus] fulfilling the key function of every dominant ideology: namely, that of cementing together the social formation under the aegis of the dominant class.121

4. The International Law Profession: The Cadres and What They Decide To accept that it is the course of the global class struggle which ultimately determines the trajectory of global politics does not, of course, require one to deny the importance of what the writers of old used to call the ‘human element’. Indeed, inasmuch as it is always human activity which in the final analysis provides the basic ‘material’ from which History is ‘made’, it follows inevitably, as Plekhanov famously put it, that the human element cannot but take the central place in the Marxian analytical framework.122 Class struggles are never initiated or sustained of their own accord. It is always concrete living men and women who wage them and give them their material reality through their actions. No historical circumstances, however general they may be, can be realised without being created and maintained by human activities. If a Marxist-style class-analytic re-theorization of international law is to become a successful enterprise, it follows then, one of the primary theoretical elaborations that it will have to develop will have to be a lucid, practically viable account of the general role of the ‘human element’ in the production not only of the broader international legal discourse as a whole, but also of the various specific international legal regimes. What are the main conditions that will have to be satisfied in the pursuit of this enterprise? In the first place, quite clearly, one would have to bear in mind the traditional dangers of vulgar voluntarism. International law is not what international lawyers make it.123 It is not the end-product of what international 120. On the concept of interpellation, see the sources listed in infra n. 135. 121. Poulantzas, State, Power, Socialism, supra note 70, at 86-8. 122. Plekhanov, Selected Philosophical Works, supra note 63, at 293. 123. Cf. Martti Koskenniemi, ‘Between Commitment and Cynicism: Outline for a Theory of International Law as Practice’, in Collection of Essays by Legal Advisers of State, Legal Advisers of International Organizations and Practitioners in the Field of International Law (United Nations: New York, 1999) 495-523 at 523.

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lawyers want it to be, nor even of what they teach others to believe it to be. Each of these factors may under some circumstances play a certain contributory role, but none of them, in the end, can be regarded as primarily determinative of international law’s substantive and formal development. International lawyers do, quite obviously, produce the history of their own profession and its collective imaginary constructs. But they do not do this through the means of their own choosing and normally they do not do it consciously.124 As Marx himself repeatedly pointed out, there can be, ultimately, no such thing as ‘pure human will’ – if only because there can also be no such thing as an ‘abstract human individual’.125 All human beings in history have belonged to one or another definite social setting, a setting in which they have been grounded and by which they were conditioned, disciplined, and psychologically moulded. To understand the historical role and significance of any given individual from a Marxist-theoretical point of view, it is necessary, thus, to elucidate first the general social position which this individual occupies in their immediate social setting. And the essential logic of all large-scale social settings, according to the Marxist theory, derives, as explained earlier, from the underlying pattern of class relations. As a question of its principal practical priorities, it follows, therefore, that the Marxist class-theoretic approach to international law, before it proceeds to any other large-scale programmatic projects, must develop first some form of a general class-theoretic account of the international law profession itself, that is to say, a basic characterization of the typical distribution (subsumption) of the various segments of the broader international law profession across the existing global class structures, including not least the practitioners of the Marxist class-theoretic approach themselves. For let us not turn away from this fact: a vast majority of those who would describe themselves today as ‘leftwing international lawyers’ firmly belong in the world of professional academia. No movement could ever have had such a strongly pronounced socio-institutional bias in its composition and not become influenced by the corresponding class-positional practices. The longer you wear the same mask, the more it becomes a part of your face. The longer the leftwing international law movement remains confined to the professional quarters of academic life, the more fundamentally the logic of its political practices will be deformed by that most classical academicist vice of all, the culture of self-lionization – that peculiarly middle-class Napoleonic-style neurosis which commonly manifests itself in the form of a vulgar liberal-humanist delusion declaring that in the end it is always the theories expounded by university professors which somehow determine the score line in every grand historical 124. See Kennedy, ‘Thinking against the Box’, supra note 46, at 420-41. 125. See Marx and Engels, The German Ideology, supra note 79, at 122.

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struggle. If only one managed to articulate the right theories on the right pages at the right time, a single stroke of the pen would suffice to make up for all the countless setbacks suffered in other fields of political struggle. Needless to say, an attitude of such kind is not only profoundly dubious in general socio-theoretical terms. It is also profoundly counterproductive. We live today in a time of extraordinary challenges, but also a time of extraordinary opportunities. If the leftwing international law project is to prove itself in any meaningful sense worthy of them, it must find a way to break out from its prison-house of professional academicism. The first and the most obvious step in this enterprise should be a reversal of its long-established culture of conspicuous theoreticism. Even if we could agree on nothing more at the moment, our first common goal today should be to bring an end to the tradition of writing in an unnecessarily inaccessible style that has spread like wildfire in some segments of the purportedly leftwing legal-scholarly discourse in recent years.126 For let us make no mistake about this: the only scenario under which the leftwing international law project is going to make a difference outside its own narrow circle is if it finds a way to connect to the world of non-academic practitioners and activists. Politics is a game that requires Luthers and Lenins, not Heideggers and Hegels. Hegel wrote Phenomenology of Spirit.127 Lenin produced ‘What Is to be Done?’128 and ‘April theses’.129 The way forward does not lie with ruminating on the imponderable wonders of the ineffable, but with the production of easily communicable, analytically accessible statements that will enable the forging of durable coalitions with the most practically active segments of the broader international political arena. And yet as the search for our new ‘April theses’ begins, let us remind ourselves once more that a vast majority of leftwing international lawyers today are professional academics. For however unflattering this idea may seem to our sense of selfesteem, legal academics are not on the whole any good at fighting what Antonio Gramsci called the ‘wars of manoeuvre’. Even on those ideological fronts which 126. The examples are numerous, but as typical representations consider, inter alia, Thanos Zartaloudis, ‘Notes on the General Economy of International Law and Governance’, 31 NYU Review of Law & Social Change (2007) 679-694 ( ‘in a general economy [of ] law and politics … difference becomes de-differentiated, always in order to avoid answering the question of what is actually different in difference’); Patrick Hanafin, ‘Constitutional (U)Topology: the (Dis)Appearance of Ireland’, in Peter Fitzpatrick and Patricia Tuitt (eds.), Critical Beings: Law, Nation and the Global Subject (Aldershot: Ashgate, 2004) 101-118; Ed Morgan, ‘The Other Death of International Law’, 14 Leiden Journal of International Law (2001) 3-24. 127. G.W.F. Hegel, Phenomenology of Spirit (trans. by A.V. Miller, Clarendon Press: Oxford, 1977). 128. See supra note 2. 129. See Vladimir Lenin, ‘The Tasks of the Proletariat in the Present Revolution’ (1917), (visited 22 February 2010).

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we ourselves have historically helped to create, we only ever tend to be good at conducting the ‘wars of position’, which basically means ‘cold wars’ and ‘trench warfare’.130 In everything else, we are virtually universally hopeless, which is to say, in effect, that if the leftwing international law project as it exists today should proceed about its business in a reasonably successful fashion – if, in other words, it is to attempt what all other strategically-motivated movements do, namely, take advantage of its principal strengths while neutralizing its principal weaknesses – one of the first things its members should begin considering is shifting their attention away from the ‘hot topic’ manoeuvre games and embracing the art of positional ideological warfare. Put differently, if our intention today is to achieve any form of lasting political success, then our first and most basic goal as scholarly agents must be to start producing writings which will engage directly with every fundamental doctrinal question in contemporary international law; writings, that is, which are not expected to become remarkable as individual pieces, but only as parts of a general system, a library, a canon of integrated knowledge, a single overarching framework, if you will. Writings, to put it differently, that will communicate to their readership the availability of a stable leftwing alternative on every leading doctrinal problem. Writings, in other words, from which one will be able to draw one day nothing less than a full-fledged system of ideological trenches cutting across the whole battlefield of the international legal struggle, rather than just a random collection of peculiarly shaped foxholes smattered across its discursive hinterland. But let us not forget also what was said earlier about the logic of class formation. Every historically known human society tends to divide into three main class categories: the class which produces the material foundations of that society’s life; the class which expropriates most of the produced material output in its favour; and the class which is ‘hired’ to help ensure the continuation of this state of affairs. All professional academics, whether or not they are ready to admit this in the open, ultimately fall in the third category. To be sure, Oliver Wendell Holmes was right: general patterns never decide concrete outcomes.131 Whoever has any doubts that this rule also extends to class politics should look again at Marx, Engels, and Lenin’s own examples. Still, most middle class intellectuals, directly or indirectly, tend to become the ideological footsoldiers of the dominant class. Ignoring this fact and the structural limits it imposes on the range of strategic possibilities open to the leftwing international law project today cannot, however we are going to look at it, be a very wise strategy. 130. Further on the ideas of the warfare of manoeuvre and positional warfare, see generally David Forgacs (ed.), A Gramsci Reader (Lawrence & Wishart: London, 1988), at 222-30. 131. Lochner v. New York, 198 U.S. 45 (1905), at 76 (Holmes J, dissenting).

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History is neither a time-bomb, nor a clockwork mechanism, nor even a miserly pendulum. It has no telos and whenever it moves it does so only unevenly and not at all smoothly. Marx was definitely right when he suggested historical materialism as the most fitting theoretical framework for explaining the general logic of socio-historical development. The events of 1989 may have cast a deep shadow over this insight, but even the deepest shadows can dissolve over time – that much is certain. What is not certain is how soon this is going to happen in any given case, and at how high a price. What can leftwing international law scholars do today to help speed up this process in the domain of the international law discourse? By joining every major ideological front within their reach by producing policy statements, textbooks, and beginners’ guides; by intervening in every area of the doctrinal legal debate (not just the ‘hot topic’ ones); by reshaping the landscape of ‘pop jurisprudence’ and ‘pop political theory’ not only among the readers of various esoteric peer-reviewed journals, but also among the broader international law-minded public. True, to accomplish a task of such magnitude can never be an easy affair. The best we can count on is hardly more than a slim chance. But, realistically, could one ever expect anything more? True, we are neither – to use Duncan Kennedy’s famous line – the ‘Trotskys of Tort,’ nor the ‘Castros of Contract’.132 We have no army of well-disciplined supporters to rely on and no larger-than-life charismatic organisers to help create it. The leftwing international law project today for the most part consists of a loose network of fairly marginalised (in socio-professional terms) academics scattered between various centre-left universities across a handful of metropolitan locations. Its resources are meagre. Its political weight outside the close quarters of the ‘new stream of international law scholarship’ borders on negligible. But sometimes a single straw can break a camel’s back. One only needs to know where to place it.

5. In Lieu of a Conclusion: Where to from Here? An easily identifiable assumption, popular in fact, if not in explicit pronouncement, has come to shape the common theoretical horizon of international legal studies over the last century. Constructed around a fetishistic hypostasis of what is alleged to be the Westphalian statal form, it proposes that the analytical apparatus of Marxist class theory has nothing of value to contribute to international law. To be sure, on the national level, it is conceded sometimes, the Marxian class analytic may still occasionally prove useful. ‘Inside the state’ one can still find some traces of class antagonisms, and the lions can still be told apart from the 132. Duncan Kennedy, ‘First Year Teaching as Political Action’, 1 Law and Social Problems (1980) 47-58 at 53.

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lambs. But ‘outside the state’, on the murky parched planes of the international arena, no such traces are to be found. The jukebox of international politics can only ever play tunes written by one tribe of tunesmiths – sovereign states and their faceless technocratic proxies, international organizations. This assumption, I am sure you understand, is completely and utterly groundless. But it is not, for all that, politically inconsequential or ideologically innocent. It helps to obfuscate the historical nature of the global political process and to divert our attention away from its ultimate origination in the global division of labour. As we set out to investigate the complex system of causal inter-relationships between international law and the structure of the broader international political system, it serves to occlude our sight of the long-term historical processes that structure the field of global economic production and determine the general range of the corresponding juridical forms in terms of which this field is organized and the system of institutional regimes and processes by which its exploitative dynamics is maintained. As a result, it helps to dilute our awareness not only of the essential historicity of international law’s past but also of the essential artificiality of its present; to naturalize what is, in effect, a fundamentally contingent system of global social relations, and through that to deceive every man and woman who has ever felt in any way short-changed by it about their collective capacity for emancipatory struggle. What can we do to overturn this reactionary ideological trend? At an earlier point in this article, I mentioned Marxism’s remarkable track record in bridging the gap between the critical and the reconstructive projects and promised I would say more about it when I got to the conclusion. I will be frank. I do not know everything that needs to be done to complete this bridging exercise in the context of the contemporary leftwing international law project. But I have a few suggestions. The list is not comprehensive and there is no immediate sequence or hidden hierarchy between the different entries. But here they are. See what you make of them.

5.1. Internal Front: Theoretical Work If only for the purposes of developing its own internal self-understanding, it seems to me that the leftwing international law project must begin today by developing a new account of the historical place of the international law profession in the reproduction of the existing global social formation. Why? In order to help understand our own ideological and social context so as to be able to identify more effective and more efficient future strategies. The starting objective is to locate the international law profession within the existing global class structure, explain its socio-political function in terms of its role as a particular species of TMC technocracy, and to the extent possible uncover the whole logic of its complex relationship with the different factions

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of the global hegemonic bloc – a logic which both expresses the international law profession’s overall dependence on the hegemonic bloc and at the same time helps to mediate its contradictions with it. Foucault’s work on the relationship between truth and power133 – but also the logic of governmentality134 – and Bourdieu’s work on symbolic capital135 and the logic of practices within structured fields of cultural production136 offer a number of useful points of departure in this task. So do David Kennedy’s Thinking against the Box137 and Anne Orford’s Embodying Internationalism.138 For reasons already mentioned above (see the end of Section 2), it seems to me we must also develop a new epistemological attitude towards the phenomena of statehood, treaty-making, international organizations, and customary international law. It is important to do so not only because the discourse of international law is still primarily conducted in terms of these categories – which means that if one wants to be heard by the rest of the international law community one needs to master this language – but also because a truly dialectical approach to international law, as already indicated (see Section 3.3), cannot resolve simply to replace one set of allegedly primordial actors (states) with another equally mystified set (classes) (see Section 3.2.5). The point, in other words, is to develop a theoretical framework which, while still enabling its practitioners to ‘speak’, if need be, in terms of a subject-centric conception of international law, will also allow them, for the purposes of their own ‘internal’ understanding, to conceptualize the existing international legal system in terms of a higher-order structure of social relations. States, international organizations, courts, NGOs, ‘peoples’ – each of these phenomena, from a Marxist point of view, ultimately constitutes a particular condensation of social relations, a mediation of the underlying political contradictions all of which have ultimately a strongly pronounced class basis, rather than a reified self-enclosed static entity. To understand international law as a system of relations involving these phenomena taken as actors, consequently, requires us to be able to conceive of it as a structure of higher-order relations occurring between lower-order systems of relations. Put differently, it requires us not only to grasp the historical meaning of international law as a semantic order of reification (in the Lukacsian sense of the word), but 133. See Michel Foucault, Power/Knowledge (translated by Colin Gordon et al.; Harvester Press: Brighton, 1980). 134. See Michel Foucault, Security, Territory, Population (translated by Graham Burchell; Palgrave Macmillan: New York, 2007). 135. See Pierre Bourdieu, Language and Symbolic Power (translated by Gino Raymond and Matthew Adamson; Harvard University Press: Cambridge, MA, 2001). 136. See Pierre Bourdieu, The Field of Cultural Production (translated by Richard Nice et al.; Columbia University Press: New York, 1993). 137. See Kennedy, ‘Thinking against the Box’, supra note 46. 138. See Anne Orford, ‘Embodying Internationalism: The Making of International Lawyers’, 19 Australian Yearbook of International Law (1998) 1-34.

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also to identify the exact internal structure by which the constituent reificatory acts behind it operate and express the general mechanics by which the resultant imaginational outcomes take hold. Alongside the general theory of the commodity structure,139 an important intellectual instrument that can help us in developing this kind of understanding can be found in the theory of structural causality, that is to say, the theory which tries to operationalize in the context of the contemporary global political conjuncture not only the concept of structural overdetermination but also the ideas of ‘historical contingency’, the ‘derivation of the state’, and the ‘relative autonomy of the law’.140 Very little work has been done on this front so far, especially in the area of international law. Yet, any suggestion that a significant knowledge-productive progress can be possible in the absence of such a theory, it seems to me, is simply unsustainable. We must begin to rewrite the history of international law by tying it in with the history of the underlying patterns in the evolution of the global relations of production. Consider, for example, the whole series of doctrinal debates and contestations that erupted on the eve of the 2003 invasion of Iraq.141 From a Marxist classtheoretic point of view, the primary goal in deciphering the historical significance of these contestations as phenomena of international legal practice would be to explain them not as a series of ‘pure legal facts’ generated by, for instance, the inherent indeterminacy of the corresponding legal materials or the ambiguity of the traditional interpretative processes, but as an overdetermined superstructural manifestation of the general state of the global relations of production and the various contradictions that shook the global hegemonic bloc from bottom to top in the late 1990s and early 2000s. As Robert Brenner and Giovanni Arrighi have argued, the principal source behind these contradictions can be traced to the steady build-up of productive overcapacity in the manufacturing sectors of the leading capitalist economies since the end of World War II and the resulting system-wide over-accumulation of capital which triggered the onset of a prolonged economic downturn across most of the capitalist world.142 The way in which the problem of over-accumulation was resolved by the turn of the century – essentially, through an ever-increasing financialization of the global-economic space driven in part by an attempt to induce a system-wide rise in consumption levels absent a corresponding rise in 139. See Lukacs, History and Class Consciousness, supra note 113, at 83-110. 140. Further on the concept of structural causality, see Fredric Jameson, The Political Unconscious (Routledge: London, 2002) at 8-42. 141. For a good starting point on this front, see, e.g., Matthew Craven et al., ‘“We Are Teachers of International Law”’, 17 Leiden Journal of International Law (2004) 363-374. 142. See Robert Brenner, The Economics of Global Turbulence (Verso: London, 2006); Giovanni Arrighi, Adam Smith in Beijing (Verso: London, 2007).

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real wages – inevitably led to a profound split and conflict between the industrial and the financial fractions of the TCC. Having co-opted the international political agenda in the late 1980s, the much more cosmopolitan and mobile financial fraction entered a period of spectacular institutional advancement in the 1990s. This led to a considerable strengthening of its relative power position vis-à-vis all the other segments of the global hegemonic bloc, but in particular its primary partner-rival, the forces of transnational industrial capital. The latter, on the other hand, over the same period not only witnessed a comparatively much less impressive rate of institutional and political advancement, but also suffered a series of very significant setbacks in terms of its economic performance that only further highlighted its fundamental susceptibility to a much more territorialized logic of power relations as well as vulnerability to pressure from organized labour. The combination of these three factors, predictably enough, led the industrial fraction to develop a much more pronounced pattern of reliance on the respective nation-state apparatuses. The resulting divergence of trajectories inevitably led to a gradually intensifying conflict of interests with regard to the most optimal model of geopolitical structuration143 that was only partially mediated by the deployment of various administrative apparatuses on the national level and the decentralized quasi-Westphalian institutional structures on the international level. If profit is to be understood as a function of the strength of one’s power bases, then what essentially happened in the late 1990s in this context can be explained in terms of a gigantic scramble for power bases, ‘hard’ and ‘soft’, institutional and ideological alike, between the two primary fractions of the TCC, the various elements of the TMC - in particular the technocratic elites behind the international financial institutions and the latter-day clergymen of the global civil society, the international human rights NGOs - and the various elements of the TWC. As on so many other occasions in modern history, the conflict over the determination of the general rules for the transboundary use of armed force became at this point one of the principal indices of the course of global class struggle. The rapid re-legitimization of the culture of armed interventionism and the concomitant switch to a much more militarized version of the globalization project that took place around the turn of the millennium – the switch that gave international lawyers not only the infamous neo-Reaganite ‘Bush doctrine’, but also the Kosovo-inspired ‘responsibility to protect’ doctrine – appear, in other words, to have derived far less from the surface patterns of the essentially contingent historical events such as the attacks of 11 September 2001 or the election of George Bush, Jr., than from the much deeper underlying processes that threatened 143. See Harvey, New Imperialism, supra note 17, at 118-9.

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a comprehensive destabilization of the global hegemonic bloc at the start of the new century: a global economic stagnation produced as a consequence of the general over-accumulation of capital across the advanced economies; the redistribution of economic control points from the North Atlantic region to the newly emerging East Asian financial and industrial centres; an ever-intensifying pauperization of an ever-increasing proportion of humanity outside the North Atlantic region; the inevitable switch from the ‘economic growth is always also an economic struggle’ model of expansion to the ‘economic struggle is the only way to economic growth’ alternative; a rapidly snowballing governance legitimation deficit created in large measure thanks to the various technological breakthroughs from mobile telecommunications to the world wide web, whose combined effect was to lower the previously prohibitive entry costs to the ‘marketplace of public discourse and informational messages’.144 Faced with a pattern of rapidly intensifying competition and a concomitant crisis of profitability, different segments of the global hegemonic bloc resorted to mutually contradictory political strategies, aimed invariably not so much at finding a general resolution to the challenges confronting the global hegemonic bloc as a whole as at discovering a more or less effective way of resolving the immediate problems confronting the given segment of the bloc, if need be, at the expense of all the other segments. The resulting process found by the start of the new century the emergence of a relatively consistent systemic split between, on the one hand, the forces of transnational industrial capital supported in their endeavours by the national military-industrial complexes of the North Atlantic region and the transnational oil corporations and, on the other hand, the forces of the transnational finance capital supported to a large extent by the Bretton Woods technocracy. The latter consistently encouraged a complete dismantling of all domestic and international regulatory measures that could produce any form of protectionist dynamics in the global markets, thus inevitably pushing for a systematic downgrading of the nation-state as a site and instrument of governance processes. The former, by contrast, turned out generally to be much less opposed to the idea of a strong state – so long, of course, as the states in question would be thoroughly ‘re-educated’ in the ways of the inalienable investor rights. The conflict between the two trajectories, naturally, was not absolute. No one supported the deregulationist project pure and simple. After all, the forces of the transnational finance capital also had a certain residual interest in maintaining the nation-states’ general law-enforcement capacity, if only for the sake of safeguarding whatever anti-protectionist regimes would then be created to suit their interests. Similarly, most elements of the industrial fraction found that their immediate economic interests would be much more effectively served by 144. See further Robinson, ‘Global Capitalism’, supra note 99.

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the weakening of the government interventionist potential in those markets into which they sought entrance. But the trend, nonetheless, was still there. And, like most such trends, unless counteracted, sooner or later, it was bound to produce a policy explosion. In the domain of international law, that explosion was reflected in connection with two major events. First, the 2003 invasion of Iraq and the subsequent failure to produce an even remotely coherent international legal remedial action in response to what has been widely understood as an unambiguous violation of the preexisting legal rules. Second, the collapse of the Doha round at the WTO. The catalyst in both cases appears to have come from the increasingly crude attempts by the US governmental elites, acting against the background of the gradually growing rift between the financial and the industrial fractions, to extract what, in effect, were racketeer-style ‘protection payments’ from their West European, Middle Eastern, and East Asian allies.145 What role did international legal concepts, doctrines, and discourse play in all of this? How did the political splits between the Western and the non-Western states generated by the intra-imperialist contradictions between the different segments of the global hegemonic bloc translate into a corresponding split within the domain of the international legal process? Which rhetorical tropes became proxies for which political projects? Which doctrines and concepts – ‘sovereignty,’ ‘the right to democracy,’ ‘the United Nations,’ ‘imperialism’ – became attached to which agendas? Which segments of the international law profession were drafted in by the opposing elements of the historical bloc more regularly and why? These are the questions that stand most prominently today before the Marxist theoretical project in the field of international legal history.

5.2. External Front: Ideological Work On the front of external policy intervention, it seems to me, our first task today should be to induce a systematic reorientation of every debate related to matters of international law towards the glaring class inequalities in the distributional consequences of various international legal regimes. Did the decision of the WTO panel in the Biotech Products case146 make it more difficult for governments around the world to maintain protective measures against foreign trade in genetically modified organisms? What sort of general distributional consequences did this produce across the various elements of the global class structure? Considering the disparities in political/informational access capacities, what meaning can be attributed in this context to the fact that in formal political terms the decision

145. Arrighi, Adam Smith in Beijing, supra note 142, at 254-9. 146. European Communities – Measures Affecting the Approval and Marketing of Biotech Products, WTO Panel, 29 September 2006, WT/DS291/R, WT/DS292/R, and WT/DS293/R.

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was articulated on the supranational level? And how in the same context can we then interpret the fact that the losing party to the case – the European Communities – chose not to appeal the panel’s decision? Most agents sympathetic to the leftwing international law cause will generally agree that most international legal regimes most of the time are biased in favour of one or another element of the global hegemonic bloc in a way which can hardly be dismissed as insignificant. The challenge confronting the leftwing international law project, therefore, is to show why exactly these biases are not, in fact, insignificant, but much more importantly how exactly they tend to manifest themselves, or, in other words, how the ‘tilt’ mechanism generally works.147 As of yet, the Marxist tradition has developed no analytical instruments tailor-fitted for this task. See, however, Section 5.3 below. To facilitate a more effective articulation of these tilts as well as to help communicate their essential illegitimacy more effectively, another important element that needs to be developed by the leftwing international law theorists is a new non-liberal (asymetric) conception of global justice – that is to say, a conception of justice that is derived not from some ill-informed quest for ‘neutral bi-partisanship’, but from the ‘biased’ perspective of the TWC. Several decades ago, the anti-colonial movement managed to achieve an essentially similar goal in the context of the colonialism debate by arguing that between the exploiting and the exploited nations it is the latter that, by ‘justice’, ought to be given more rights (not least the right to use military force) and that putting the metropolitan powers and the colonial peoples on the same level in this context would be the highest form of injustice. How difficult should it be to achieve the same in the context in which the interests of the foreign investors clash with those of the exploited labourers? As a continuation of the same enterprise, it follows that we must also begin deconstructing every fuzzy universalist category – such as ‘peoples’ rights,’ ‘international community,’ or ‘good governance’ – with a view to exposing the pervasive class bias encoded into their construction and practical deployment by various international institutions. Proudhon: whoever invokes humanity, cheats. Schmitt: behind the most ardent appellations to universalism, one will always find the most inhumane forms of political violence.148 Nietzsche: a penchant for transcendentalism is the way of deception and an indispensable condition for the rule of clergy.149 Still, it is living human individuals who ‘make’ history. In the context of our interaction with other schools and movements within the international law 147. Wythe Holt, ‘Tilt’, 52 George Washington Law Review (1984) 280-288. 148. Schmitt, The Concept of The Political, supra note 81, at 54. 149. See Friedrich Nietzsche, Twilight of the Idols and The Anti-Christ (trans. by R.J. Hollingdale; Penguin: London, 2003), at 49, 149-50. More generally, see also Friedrich Nietzsche, On the Genealogy of Morality (translated by Carol Diethe: Cambridge University Press, 1994).

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profession, we must also apply the Marxist class analytic to further drive home the point about the profoundly elitist nature of the international lawmaking process – but also to uncover the ideological biases of what Myres McDougal called the community of authoritative decision-makers. If only for the sake of injecting a healthy dose of scepticism into the general image of the international law profession held by the lay public, it may be a good idea to start documenting the various mechanisms of political co-optation of international civil servants, foreign office diplomats, international law publishing houses, and even international law textbook-writers.150

5.3. External Front: Doctrinal Work In what direction should our discursive interventions proceed in the context of the contemporary international legal doctrinal debate? In the first instance, it seems to me, the idea of international law as an active constitutive site for the reproduction of the global social formation suggests that we should turn our attention in the direction of the traditional distributive impact analysis of the kind once advocated by Duncan Kennedy under the heading of ‘leftwing law and economics’:151 ‘Each rule of the game, even if stated in a way that “applies to all players,” can be analyzed for its impact on the chances of all players. … Lowering the height of the [basketball] hoop … affect[s] the relative “ability” of each player.’152 It is not that no other factor is relevant in determining the ‘outcome of the game’. Rather, ‘the point is that each [factor] has significance in practice only within the [background] framework of legal rules. If you can’t strike at all (public employees), the size of the strike fund is irrelevant.’153 How do international legal regimes affect the distribution of power, welfare, and income in the global political arena? The most self-evident way in which international law becomes implicated in such distributions is by outlining which tools, tactics, and techniques of violence, coercion, and intimidation the ‘international community of states’ is going to allow different actors to use against one another at different stages within their interactive trajectory. Think Paragraph 4 of the Decolonization Declaration (no armed force is to be used against colonial peoples when they struggle for independence)154 or Article 50(1)(c) of the 2001 150. A number of important insights have been made on this front in Kennedy, ‘Thinking against the Box’, supra note 46; Koskenniemi, ‘Between Commitment and Cynicism’, supra note 123; and Orford, ‘Embodying Internationalism’, supra note 138. 151. See Duncan Kennedy, ‘The Stakes of Law, or Hale and Foucault!’, XV Legal Studies Forum (1991) 327-366; Duncan Kennedy, ‘Distributive and Paternalist Motives in Contract and Tort Law, with Special Reference to Compulsory Terms and Unequal Bargaining Power’, 41 Maryland Law Review (1982) 563-658. 152. Kennedy, ‘The Stakes of Law’, supra note 151, 328. 153. Ibid., 331. 154. Declaration on the Granting of Independence to Colonial Countries and Peoples, UN GA Resolu-

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ILC Articles on State Responsibility (resort to countermeasures may not involve the application of reprisals prohibited by humanitarian law).155 A far less obvious way is by determining the structure of strategic alternatives (the list of trajectories) made available to each subject in each given situation. Think, as an illustration, of Principle VI in the UN GA’s Resolution 1541 (a colonial people can have only three scenarios in its pursuit of the ‘full measure of self-governance’).156 An even less obvious way is by addressing the various background factors that affect the construction of the relative power positions occupied by each subject. Think, for example, of the way in which Principle III of the Helsinki Final Act affects the relative chances of secessionist movements in Eastern Europe by depriving them of any access to external military help.157 In the second instance, the idea that the main object of the class-analytic approach must be to reveal the logic by which the global social formation maintains the conditions necessary for its reproduction implies that we must also focus on what, after Althusser and Foucault, could be called the subjectivizationalinterpellatory analysis,158 that is to say, the analysis of the various ways in which international legal regimes, institutions, doctrines, and practices help men and women around the globe to ‘arrive,’ so to say, into certain positions within the global class structure and not others. Through its discursiveness and characteristic texture, law-regulation obscures the politico-economic realities, tolerating structural lacunae and transposing these realities to the political arena by means of a peculiar mechanism of concealmentinversion. It … gives expression to the imaginary ruling-class representation of social reality and power [but also] assigns the places [that different social actors] must occupy. 159

tion 1514 (XV), 14 December 1960. 155. Articles on Responsibility of States for Internationally Wrongful Acts, International Law Commission, 2001, (visited 22 February 2010). 156. Principles which should guide Members in determining whether or not an obligation exists to transmit the information called for under Article 73e of the Charter, UN GA Resolution 1541 (XV), 15 December 1960. 157. The Final Act of the Conference on Security and Co-operation in Europe, Declaration on Principles Guiding Relations between Participating States, 1st CSCE Summit of Heads of State or Government, 1 August 1975, (visited 22 February 2010). 158. See Louis Althusser, Lenin and Philosophy, and Other Essays (translated by B. Brewster; NLB: London, 1971), at 127 et seq.; Michel Foucault, Discipline and Punish (translated by A. Sheridan: Vintage: New York, 1995). See also Warren Montag, ‘“The Soul is the Prison of the Body”: Althusser and Foucault, 1970-1975’, in Jacques Lezra (ed.), Depositions: Althusser, Balibar, Macherey and the Labor of Reading (Yale University Press, 1996) 53-77. 159. Poulantzas, State, Power, Socialism, supra note 70, at 83.

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As a phenomenon that simultaneously belongs in the order of economic relations, politics, and ideology, law, like all other ideological constructs, in many cases functions less by prescription and proscription than ‘by moulding personality’: it subjects the amorphous libido of new-born human animals to a specific social order and qualifies them for the differential roles they will play in society. [It teaches people about] what exists, who they are, how the world is, how they are related to that world. [It also teaches them about] what is possible, providing varying types and quantities of self-confidence and ambition, and different levels of aspiration. [It teaches them] what is right and wrong, good and bad, thereby determining not only conceptions of legitimacy of power, but also work-ethics, notions of leisure, and views of interpersonal relationships, from comradeship to sexual love. [Finally, it teaches them to accept as inevitable] harassment and terror [but also the] isolation of grievances and conflicts.160

What sort of theoretical resources can we draw on in pursuit of this enterprise? In the area of the distributive impact analysis, the most promising way forward I think lies with the work of John Commons, Robert Hale, and Wesley Hohfeld.161 To be sure, none of these scholars operated within an explicitly Marxist frame of reference (least of all Hohfeld). But this does not in any way undermine the relevance of their insights into the ‘inner workings’ of the legal form. True, neither Hale, nor, moreover, Hohfeld, had an exceptionally well-developed theory of society. But trying to learn from someone does not mean lionising every one of their achievements. When it comes to developing a micro-level juridical theory, the Halean tradition, especially in Duncan Kennedy’s adaptation of it, offers, to my mind, a far more effective analytical toolbox than any other jurisprudential theory.162 And Hohfeld's investigations into the logic of legal entitlements to this day provide the best decoding tools for deciphering the objective regulatory potentials of every positively existing legal regime, domestic or international. Which particular doctrinal questions should the leftwing international law project focus its attention on in the first order? Once again, I do not have all the answers. But the five topics offered below can be used as a quick sketch of an initial roadmap: -– The general formative logic behind the transnational spread of national legal forms, especially in the fields of corporate law, labour law, and the law of property. 160. Göran Therborn, What Does the Ruling Class Do When It Rules? (Verso: London, 2008) at 172 and 222-5. 161. See John Commons, Legal Foundations of Capitalism (Macmillan: New York, 1924); Robert Hale, ‘Force and the State: a Comparison of “Political” and “Economic” Compulsion’, 35 Columbia Law Review (1935) 149-201; and W. N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (Yale University Press, 1919). 162. See sources cited in supra note 151.

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Although he is certainly not a Marxist theorist, Diego Lopez Medina’s recent work in the area of what he calls ‘international general jurisprudence,’ it seems to me, offers the most helpful starting point on this front.163 The class politics of the recent collapse of the Doha round considered as a superstructural manifestation of the intra-imperialist contradictions within the global hegemonic bloc. Which elements of the bloc backed which parts of the reform agenda? What was the basic distributive impact of the failure of the new round of negotiations? The basic socio-political reality of various international organizations and the socalled ‘global civil society’ taken as the institutional manifestations of the global imperial state apparatus. Nicos Poulantzas’s later writings, but also B. S. Chimni’s work on the subject as well as the various writings by James Gathii and Antony Anghie, offer a very helpful starting platform on this question.164 The progressive degradation of the systemic ideological potential within the contemporary international legal discourse. A number of recent studies have explored several aspects of this question.165 Much more work, however, still remains to be done, not least with regard to investigating the ‘fate’ of the ‘customary ideological terrains’ occupied by the Marxist tradition. The idea of neo-decolonization. If there can indeed exist such a phenomenon as phenomenon of neo-colonialism, there must, by implication, also exist some space for a neo-decolonization. How should this concept be understood in practice? What sort of an operative logic should be given to the project of neo-decolonization in contemporary international law? What should it focus its efforts on and how should it articulate its agenda?

Here are, then, my starting theses – my basic programmatic vision of where the Marxist class-theoretic approach to international law should proceed to and how. 163. See Lopez Medina, Comparative Jurisprudence, supra note 43. See also Duncan Kennedy, ‘Three Globalizations of Law and Legal Thought: 1850-2000’, in David Trubek and Alvaro Santos (eds.), The New Law and Economic Development (Cambridge University Press: 2006), 19-73. 164. See Poulantzas, State, Power, Socialism, supra note 70; Chimni, ‘International Institutions Today’, supra note 61; James Gathii, ‘Good Governance as a Counter-Insurgency Agenda to Oppositional and Transformative Social Projects in International Law’, 5 Buffalo Human Rights Law Review (1999) 107-174; and Antony Anghie, ‘Time Present and Time Past: Globalization, International Financial Institutions and the Third World’, 32 NYU Journal of International Law & Policy (2000) 243-290. 165. See, e.g., Susan Marks, The Riddle of All Constitutions (Oxford University Press, 2000); Kennedy, Dark Sides of Virtue, supra note 47; Gathii, ‘Good Governance’, supra note 164; Balakrishnan Rajagopal, International Law from Below (Cambridge University Press, 2003); Scott Newton, ‘The Dialectics of Law and Development’, in Trubek and Santos, The New Law and Economic Development, supra note 163, 174-202.

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Here is, in other words, where the struggle for the future of the leftwing international law project can be started. Here is where the trenches can be dug. Let us begin if you are not afraid.

The Law’s Farewell to the Nation State? Kaarlo Tuori* ABSTRACT: The time and space relations and conceptions which are distinctive of modern society and culture have also imbued the law. However, the time and space of law are undergoing profound changes, many of which are related to phenomena of globalisation or de-nationalisation. The polycentricity of sources of law, self-regulation and a budding pluralism of legal systems challenge many of the assumptions about law, state, and society in the ‘hidden social theory’ of legal thinking. The world of the law can no longer be conceived of under the dichotomy of municipal and international law. Transnational norm-giving and norm-application in, for instance, EU law or human-rights law, have detached themselves from international law, as conceived through the black-box model, based on such dichotomy. Those normative and institutional structures – such as lex mercatoria, lex sportiva, and lex digitalis - which have been generated by globalised social systems themselves, without support from international treaty law, have moved even further away from nation state control. These developments attest to law’s growing fragmentation and to late modern legal pluralism. But fragmentation is countered by harmonisation and the pursuit of coherence. It may be at its core, the globalisation of law equates with the globalisation of modern law’s deep structure or – to put it in Klaus Günther’s terms – the formation and spread of a universal legal code that facilitates communication across the boundaries between legal orders, legal cultures, and legal systems. KEYWORDS: Legal pluralism, globalisation, interlegality, fragmentation, harmonisation.

1. The Law of the Nation State All historical types of law are characterized by a specific temporality and spatiality. This holds also for modern law, although in legal theory modern law is often presented in universalist, atemporal and ahistorical terms. However, a change *

Professor of Jurisprudence, University of Helsinki, Director of the Centre of Excellence in Foundations of European Law and Polity. This article has been written as part of a Centre of Excellence project.

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might be at hand: globalisation might force legal theorists to be more attentive to the law’s temporal and spatial coordinates. The time and space relations and conceptions which are distinctive of modern society and culture have also imbued the law. Typical of the development of modern law is its increasing instrumentalization, its employment as a means to realise the objectives of the political legislator. Instrumentalisation is anchored in a linear conception of time where past, present, and future are detached from each other and where social actors conceive of the future as an open temporal horizon. The acceleration of time, another distinctive feature of modern temporality, also finds its expression in law. The positivity of modern law, its dependence on explicit decisions, enables its continuous changeability; this possibility is seized by the instrumentally-oriented legislator. However, modern law also possesses features that temper the pace of change: the legal-cultural foundations of law slow down the unremitting surface-level movement, initiated, first of all, by the legislator. What is central to the space relations of modern society, in turn, is the severance of its local ties, society’s expansion beyond the community based on relationships between those present; the conclusion of social relations, not only between those present, but also between those absent. Expressed in Ferdinand Tönnies’ terms, development has led from Gemeinschaft to Gesellschaft. The extended spatiality of modern society is manifest in the formation of nation-states, accompanied, at the cultural level, by a double abstraction of the state, as Quentin Skinner puts it: the conception of the state as an entity separate from both (the rest of ) society and the person of the ruler.1 Modern law has been law of the nation-state. The modernisation of law, its differentiation as positive law, and the emergence of the nation-state were parallel and interdependent processes. Modern law has received its positive character from the decisions made by state institutions: the legislature and the courts. Even when norm-formation has bypassed the legislature, as has been the case in customary law, social norms have only acquired legal status after the courts have acknowledged their legal relevance. Furthermore, the state’s coercive machinery has been an indispensable presupposition of modern law: it has guaranteed the execution of court decisions and, thus, the law’s realisation. The territorial validity of legal norms has, as a rule, accorded with state borders. The dependence between law and state has been reciprocal. Modern, positive law would not have been possible without the legislative, adjudicative, and administrative bodies of the state; but nor would the modern state have been conceivable without support from the law. The state has relied on law as an instrument in organising its institutional structure and in implementing its political decisions. The law has provided the state with a source of legitimacy 1.

Quentin Skinner, ‘The State’ in Terence Ball, James Farr and Russel L. Hanson (eds), Political Innovation and Conceptual Change (Cambridge University Press, 1989) 90-131.

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as well. In this sense, Rechtsstaatlichkeit can be characterised as an internal telos of the modern state. But the expansion of modern law’s spatial horison has not stopped at the borders of the nation-state. Modern law includes a branch whose spatial dimension exceeds the boundaries separating nation-states from each other: international law. But international law, too, has in many respects been tied to the nation-state. The voluntas of international law has been essentially the voluntas of the nation-state. On the basis of their internal sovereignty, nationstates have retained control over the municipal legal order, and its application and execution; internal sovereignty has involved the exclusivity of the state’s legal system. External sovereignty, for its part, has allowed for the states to participate in the international system. The traditional view defines the states as exclusive subjects and objects of international law. Norm-formation in international law has been based on bi- and multilateral treaties between nation-states, and international customary law has had its origin in state practice. The legal effects of international treaties have been confined to states as well. In accordance with its generally accepted premise, international law has not intruded into the internal domain of nation-states but merely regulated inter-state relations; what transpires within state boundaries and under what norms has been of concern only to the sovereign nation-state. State sovereignty has included the power to decide on the relationship between domestic and international law. Whether this adheres to the monistic or the dualistic model has depended on the constitutional choice of each individual state. William Twining has fittingly talked about a black-box model as the way the relationship between municipal and international law has been conceived.2 In this conception, both national legal orders and international law are treated as self-contained and self-sufficient normative wholes. The law’s primary principle of differentiation has been of a territorial nature. The link with the nation-state is most obvious at modern law’s surface level: the lawgiver and the courts of the nation-state have produced the institutional surface-level legal normative material, while state borders have determined its territorial significance. Modern legal culture, developed and articulated significantly by legal scholarship, has procured the necessary pre-understanding of legal actors and functioned as a tradition in the philosophical-hermeneutical sense of the concept. Legal culture, too, has possessed distinctive nation-state features, but at this level of the law, links with the modern form of polity have not been as self-evident as on law’s surface. International law has been a special case with regard to the territorial differentiation of legal culture, too. The discourse of international law has been international discourse; this would not have been pos2.

William Twining, Globalisation and Legal Theory (Northwestern University Press: Evanston Illinois, 2000) at 51.

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sible without shared traits in the legal-cultural pre-understanding of discussants coming from different states. The widening of spatial horizons, typical of the modern era, has characterised development of the legal culture, too. Legal culture has transformed itself from a tradition (in the historical-sociological sense of the concept) towards an expert system. Expert systems strive for universalism. Expertise does not acknowledge state borders; it is the same on either side of the border. In addition, similarities in the legal cultures of the Western world derive from the heritage of Roman law, which has left its traces not only on Romano-Germanic legal orders but on common law as well. A part of this heritage consists of the division of law into distinct fields, which in Continental European legal cultures still organises legal normative material. Systematisation begins with the distinction between private and public law. Private law is further differentiated into property law, the law of obligations, and family and inheritance law. Public law, in turn, is divided into national and international public law. Corresponding to public international law, the branches of private law may include private international law. Despite its Roman law roots, when applied and modified in accordance with modern law, this systematisation manifests the perspective of the nation-state legislator; it purports to arrange the municipal legal order of the nation-state. Two fields of law cut across state borders – public and private international law – but their location in the system of law is determined from the nation-state perspective as well. Both of them regulate relationships between nation-states or their legal orders. International private law comprises the rules of choice determining what norms are applied to an issue bearing on more than one nation-state municipal legal order. Private international law itself is part of the municipal legal order of the respective nation-state. And when states opt for either the monistic or dualistic model in the relationship between municipal law and public international law, they also define the latter’s place in the law’s system. In the Romano-Germanic legal family, the foundations for modern law’s general doctrines and principles of systematisation were laid during the 19th century. Here the role of the German Historical School and the subsequent conceptual legal science (Begriffsjurisprudenz) was crucial. Systematisation has not, of course, remained stuck in the positions of the 19th century, and new branches of law with their own general doctrines have been added to the system. However, branches such as labour law, environmental law, or social law have not shaken the system’s nation-state premises. It is the welfare state that has engendered new fields of law such as these, and the welfare state, if any, has been a project of the nation-state. Regulations typical of the welfare state have problematised the basic distinction between private and public law but they have not undermined the nation-state perspective underlying the law’s divisions.

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Modern law is autonomous law: as a legal order it is detached from other sets of social norms and as legal practices from other social practices. This makes it possible to examine – in the manner of Niklas Luhmann – the law as a sub-system of society, structured around its closed communicative network and relying on its specific legal code. But such an autonomous law could not have emerged without the support of modern society and modern culture. These extra-legal presuppositions have included the nation-state.3 Modern society, with the nation-state as an integral part of it, has not only constituted modern law’s extra-legal environment, it has also in a sense been effective within the law itself. Law and legal doctrine always give expression to some conception of the surrounding society. Sociologists have discussed the extent to which their conception of society has confined social relationships and processes within the boundaries of the nation-state.4 One of the main tasks of critical jurisprudence is to reveal, or reconstruct, the implicit social-theoretical assumptions of legal theories – both dogmatic theories and ‘reflexion theories’5 trying to capture the law’s unity. Presumably, modern law’s attachment to the nation-state is detectable in the social-theoretical premises of legal theories too. The interplay between will and reason, voluntas and ratio, provides one perspective on the internal tensions and dynamics of law. Modern law’s ties to the nation-state have set their mark on its voluntas and ratio, as well as their mutual relations. The law’s primary voluntas has been that of the nation-state legislator. The problem of disciplining the voluntas has derived from the connection between law and politics, the law’s instrumentalisation in the service of the nation-state legislator’s political aims. The constitution, on the one hand, opens for the politically determined voluntas access to the law and thus establishes the law’s positivity, but, on the other hand, it also imposes not only formal but even substantive restrictions on this voluntas. The constitution has been a nation-state constitution, which has crowned the hierarchical structure – Stufenbau – of the nation-state legal order and provided it with its formal unity. The legal order’s hierarchical structure has been matched by hierarchical relations between the state organs furnished with norm-giving powers. Furthermore, the institutional Stufenbau of the judiciary applying the law has proffered an additional guarantee for the legal order’s formal unity. * The idea of a late or second modernity, adopted in many contemporary social diagnoses, is essentially based on the observation that modern society’s temporal 3. 4. 5.

Niklas Luhmann, Law as a Social System (Oxford University Press, 2004). Ulrich Beck, Der kosmopolitische Blick oder: Krieg ist Frieden (Suhrkamp: Frankfurt am Main, 2004). The term is used by Luhmann, supra note 3, at 458, of legal theoretical representations of law.

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and spatial transformations have entered a qualitatively new phase. The increasing acceleration of time, due to novel information, communication, and transportation technologies and their social consequences, has also launched a new round in the liberation from space, questioning the significance of state borders in determining the territorial dimensions of social processes and relations.6 The virtual space of the Internet represents the latest phase in the conquest of space. If modernisation is linked to temporal and spatial changes – to the acceleration of time and the expansion of space – the globalisation narrative is but a sequel to the modernisation narrative. The further acceleration of time and the further expansion of space have repercussions in the law, too. I shall discuss them, first, in fields traditionally included in the nation-state’s internal sovereignty, and then turn to legal aspects of globalisation. However, such a distinction between internal and external may be artificial, even misleading: many of the developments eroding the state’s internal sovereignty possess an international or transnational dimension.

2. The Fragmentation of the Nation-State’s Legal Voluntas The democratic legislator of the nation-state has employed the law as a means for achieving its political aims. It has adopted a linear and, with regard to the future, open conception of time, and conceived of society as a political project realisable in time. Such a notion of politics and law implicitly assumes that the temporality of politics and law corresponds to the temporality of other social sub-systems. In our late modern era, this assumption turns out to be increasingly problematic. Modern society is a functionally-differentiated society, and no guarantees exist for the match of different sub-systems’ temporal structures. The dynamics of temporal acceleration has not affected all sub-systems similarly. The rhythms of politics and law have lingered after, for instance, rapid changes within the economy; here we have one important explanation for the state’s (and the law’s) withdrawal from management of the economy.7 The crisis of politics involves a crisis of the law as a medium; as a means of social engineering. Legal regulation by state organs is increasingly reactive in character; instead of actively directing the functioning of other sub-systems, it responds to already realised development. The traditional concept of the state, coined by German 19th century state law theory, was based on three elements: state territory, state people, and state power.8 But it implied a fourth dimension, too: that of state organisation. For 6. 7. 8.

Helmut Rosa, Beschleunigung. Die Veränderung der Zeitstrukturen in der Moderne (Suhrkamp: Frankfurt am Main, 2005) at 338 ff. Ibid., at 391 ff. Georg Jellinek, Allgemeine Staatslehre (first published 1900, O. Häring: Berlin, 1914) at 394 ff.

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Carl Friedrich von Gerber, for instance, the necessity of state organisation ensued from the state’s free will (state power) as the basic idea of state law: this presupposed state organs that expressed and concretised the state’s will.9 State organs did not possess a separate legal subjectivity, or their own will; they merely gave shape to the will of the state as a unitary legal person. This legal person could not have but one will; an internally contradictory state will was as implausible a thought as the internally contradictory will of an individual legal subject, a natural person. Norms of competence defined the confines within which state organs were authorised to articulate the state’s will. Fundamental norms of competence, such as those confirming the separation of legislative, executive, and adjudicative powers, were included in the organisational part of the constitution. Norms defining the Stufenbau of the legal order and the hierarchical structures of the judiciary and the administration were supposed to secure unity of state will. The formal unity of the legal order possessed an institutional support in the unity of state organisation. Recent developments have contested the assumption of unitary state will and organisation and, consequently, the unity of the legal order. The law’s voluntas can no longer be automatically identified with the voluntas of the democratic legislator. Democratic lawmaking procedure, culminating in deliberations within the representative body, requires time which the velocity of social change does not always permit. The early modern classics of political theory and philosophy already considered the executive the most rapidly reacting department of state. The legislator is primarily oriented towards the future and the judges towards the past. By contrast, the executive functions in the present, responding immediately to urgent internal and external challenges facing the state.10 The increasingly rapid pace of social processes and the incapability of the slowly functioning representative mechanisms to attend promptly to sudden regulatory needs constitute a backdrop to the growing significance of delegated legislation and emergency powers.11 Delegation of legislative powers and the narrowing role of the representative body entail that lawmaking is deprived of those elements of discursive ratio which, in Habermas’ ideal-typical democratic Rechtsstaat, are purported to impose procedural constraints on the voluntas and its instrumental reason.12 The resulting democratic deficit cannot be remedied by attaching surrogate discursive elements to the norm-giving of the executive; the very reason for delegating Carl Friedrich von Gerber, Grundzüge des öffentlichen Rechts (first published 1865, 3rd edn, Bernhard Tauchnitz: Leipzig, 1880) at 231 ff. 10. William Scheuerman, Liberal Democracy and the Social Acceleration of Time (The John Hopkins University Press: Baltimore and London, 2004) at 38-42. 11. Ibid., at 105 ff. 12. Jürgen Habermas, Between Facts and Norms (translated by William Rehg, Polity Press: Cambridge, 1996) at 157-168. 9.

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legislative powers to the executive often lies in time pressures which do not allow for discursive deliberation of legislative issues. Delegated legislation not only endangers the discursive features which political democratisation has added to formation of the law’s voluntas. It may also threaten the unity of the legal order. Constitutions contain provisions on delegation of legislative powers and on the the legal order’s hierarchical structure, its Stufenbau. It could be argued that such provisions ensure the legal order’s unity despite the mounting significance of delegated legislation. However, this unity depends on unity of state organisation. The executive branch of the state no longer constitutes such an integrated whole with its clear relations of competence and a seamless hierarchy of control as was assumed by German late constitutional state law doctrine or Max Weber’s contemporary theory of bureaucracy. Following models from the private sector, public administration has adopted new types of non-hierarchical organisational structures, as well as new types of non-legal management and control mechanisms (New Public Management). The reforms have enhanced the functional independence of administrative agencies, also as regards their norm-giving. Public administration’s increased independence has allowed for new kinds of contact with relevant private organisations. Administrative management of society is no longer based merely on legally binding orders and money allocation; vertical power relations have, to a great extent, been replaced by horizontal co-operation, such as exchange of information and joint informal deliberations with private actors. The borderline between legally binding and non-binding management has been blurred; unequivocally obligatory hard law has been complemented by various forms of soft law. According to traditional democratic and constitutional theory, society is expected to influence the administration through the representative body and the government politically responsible to that body. Parliamentary mechanisms have been supplemented by direct connections between administration and society. This has made the boundary between public and private more porous and led to a new kind of intertwining of state and society. It has also further augmented the independence of individual administrative units – the segmentation of public administration, as it has also been called. In an empirically-oriented scrutiny, it may be more appropriate to portray administrative agencies as representatives of their respective fields of action – e.g. healthcare, education, or the economy – rather than of unitary state will. In his analysis of the Weimar political system, Carl Schmitt depicted a pluralist state which was ‘totalitarian from weakness’: a state whose unity was threatened by the strategic decision-making of interest-based associations.13 The 13. Carl Schmitt, ‘Weiterentwicklung des totalen Staates in Deutschland’ in Carl Schmitt, Verfassungsrechtliche Aufsätze (first published 1933, Duncker & Humblot: Berlin, 1958) at 359-365.

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contemporary expression disaggregated state14 also alludes to a situation where the agencies’ bonds of allegiance with the private organisations of their field may be stronger than their ties to other agencies. Continental public law doctrine seems to be moving towards rejecting the unity of state will and the state’s legal personality even as legal fictions. Concepts such as ‘administrative contract’ and the acceptance of state organs as parties to legal proceedings may be tokens of impending doctrinal change. Privatisation, a salient feature in public administration’s development in recent decades, has also contributed to organisational fragmentation. The concept of privatisation may be employed in both a broad and a narrow sense. It may be used to cover a large variety of the novelties in public administration’s internal or external relations, borrowed from the private sector: non-hierarchical forms of organisation, ‘soft’ mechanisms of internal management and control (e.g. result budgeting, contractual relations between administrative units, New Public Management) and the use of private law or non-legal steering instruments. In its narrow sense, ‘privatisation’ connotes the transfer of public administration’s tasks to private organisations. Such a transfer may include norm-giving powers, too. In legal-theoretical debates, the fragmentation of legal norm-giving has been examined through the concept of polycentricity. The concept has been given various definitions, but most notably in Danish contributions it has been linked to the doctrine of sources of law.15 The doctrine of legal sources determines the participants in the continuous discourse on the contents of the legal order and the legal practices which contribute to production and reproduction of legal norms. ‘Polycentricity’ refers to a multiplication of sources of law and to the problematisation of traditional doctrine; legal discourse has acquired new participants, and interventions in this discourse by diverse participants cannot be accorded such an unequivocal weight as has been previously assumed in, for instance, Scandinavian legal theory. Polycentricity can also be manifest in different actors’ adherence – and even obligation to adhere – to divergent doctrines of legal sources. Thus, local officials in social and health care may be legally obliged to comply with the instructions of local self-governing authorities, but these instructions do not necessarily enjoy the same legal significance in courts where decisions on social benefits can be appealed. Phenomena attesting to the polycentricity of legal sources have led some Scandinavian discussants to doubt whether doctrine can in general any longer be codified in the fashion proposed in the 1980s by, for instance, Alexander Peczenik.16 14. Anne-Marie Slaughter, A New World Order (Princeton University Press, 2004). 15. Henrik Zahle, ‘The Polycentricity of the Law or the Importance of Legal Pluralism for Legal Dogmatics’ in Hanne Petersen and Henrik Zahle (eds), Legal Polycentricity. Consequences of Pluralism in Law (Ashgate: Aldershot, 1995) 185–200. 16. See e.g. Juha Karhu, ‘Perusoikeudet ja oikeuslähdeoppi’, 5 Lakimies (2003) 789-807.

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Polycentricity is related to another pertinent topic in present legal-theoretical and legal-sociological debates: self-regulation. ‘Self-regulation’ refers to normgeneration by or with the co-operation of organisations established by the actors in the social field under regulation. The economic sector offers plenty of examples, such as good banking practice, defined by the Finnish Bank Association, good auditing practice, defined by the Chamber of Commerce, or the rules of the Helsinki stock market, approved by the company owning it, to use examples drawn from my own nation-state. The list could be extended with examples from other social fields, such as the anti-doping rules of national sports associations, or codes of conduct concerning data protection. It should not come as a surprise that the concept of self-regulation, too, has been used in different senses and that different forms and types of self-regulation have been discerned. Researchers have debated whether the concept should be confined merely to voluntary self-regulation by social actors. In its action programme for the simplification of legislation, the European Commission has included in self-regulation the practices, common rules, common codes of practice, and voluntary agreements which economic and social actors, NGOs, or organised groups voluntarily adopt in order to guide and organise their activities. In the examples given above, anti-doping rules clearly represent such self-regulation. In addition to ‘pure’ self-regulation, the European Commission examines co-regulation where public authorities and the relevant actors jointly and within the framework of legislation agree on more precise rules. In Finland, good book-keeping practice is defined by a board where both the authorities and private actors are represented. Co-regulation manifests the fragmentation of public administration and the networking of administrative units and private organisations. Even other criteria for classifying self-regulation could be conceived; for instance, the legal bindingness of norms, i.e. their location on a line leading from non-binding soft law to binding hard law. Given the blurring of the boundaries between soft and hard law, this might, though, be a difficult task. Self-regulation and the polycentricity of legal sources question the assumption of unity of state will expressing itself in the law. But they do not necessarily sever the ties that connect law to the nation-state. The normative doctrine of sources of law always adopts the perspective of a particular legal actor, usually that of the judge. The judge epitomises the state’s standpoint, and if polycentricity of legal sources is suggestive of a disruption in the state monopoly of legal normproduction, polycentricity does not yet extend to the law’s application, nor can we yet speak of a pluralism of legal systems. Self-regulation may also be based on explicit legislative authorisation by the state, in which case it can, in fact, be categorised as delegated legislation. Thus, in Finland, the Act on Commercial Banks explicitly refers to good banking practice and the Act on Auditing to good auditing practice.

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If the system of self-regulation includes not only norm-generation but a mechanism for norm-application, too, a further step away from state-dependence has been taken; a step from the polycentricity of legal sources towards the pluralism of legal systems.17 In the light of this criterion, the Finnish cases of self-regulation in banking or auditing would not yet amount to a pluralism of legal systems: violations of good banking or auditing practice fall to the jurisdiction of state courts. By contrast, violations of the rules of the Helsinki stock market are dealt with by its Disciplinary Board, and sanctions for violations of national anti-doping rules are decided upon by the national sports associations. In private law, especially contract law, arbitration is a procedural alternative to court proceedings. However, if the law to be applied is that of the nation-state, arbitration does not meet the criteria of self-regulation with regard to norm-generation. Even self-regulation that includes sanctioning or dispute-solving mechanisms (thus giving expression to a pluralism of legal systems) usually maintains a link to the state. In most cases, the state provides the ultimate guarantee that self-regulation works and corrects its excesses. For example, the decisions of the Disciplinary Board of the Helsinki stock market may be appealed before an administrative court, while the Supreme Court of Finland has considered itself competent to examine an appeal against suspension imposed by a national sports association for violating anti-doping rules.18 Moreover, in cases defined in the municipal law on arbitration, arbitration awards may be contested before a state court. And even if access to the court is denied, the arbitration procedure remains dependent on the same extra-legal prerequisite as modern law in general: the state’s coercive machinery, which ensures execution of the award. Max Weber famously defined the state through its monopoly on the legitimate use of violence. This appears to be the last ingredient of sovereignty that a modern state obstinately clings to. It is true, though, that even here we can point to the privatisation of security services and the outsourcing of military functions. Nevertheless, the execution of legal decisions has, as a rule,19 remained within the exclusive power of the state. This also accounts for the control that state courts exercise over non-state forms of adjudication. If execution of decisions taken within self-regulating systems is not ensured by the coercive machinery of the state, self-regulation may remain ineffective, unless it is able to rely on surrogate mechanisms securing implementation. 17. With the concept of legal system I refer to the whole formed by the law’s two dimensions: the legal order and legal practices. The independence of a legal system presupposes, in addition to a distinct normative order, specific practices establishing and applying legal norms. The possibility of such practices, in turn, requires that the norm order includes secondary norms regulating recognition, change, and application of primary norms. 18. Supreme Court of Finland Case KKO 1998:12 19. Exceptions to this rule exist too, such as private prisons in the USA.

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To sum up, it seems premature to speak of loosening ties connecting the law to the nation-state and of crumbling state legal sovereignty. However, the polycentricity of sources of law, self-regulation and a budding pluralism of legal systems undoubtedly challenge many of the assumptions about law, state, and society in the ‘hidden social theory’ of legal thinking. Kelsen’s hierarchy of legal norms is a corollary of the state’s hierarchical institutional structure, while the divisions employed in the law’s systematisation have been based on separation of state and society (public / private law) and on classification of state functions (the sub-fields of public law). It is increasingly difficult to build the law’s unity on grounds that presuppose a link between the law and the state, as well as the unity of state will and state organisation. State courts appear to have retained their central role, but this does not necessarily guarantee law’s unity, either. The judiciary has not been spared the fragmentation characteristic of the state’s organisational development in recent decades. Fragmentation has assumed different institutional forms in different legal systems; Finland has courts with general jurisdiction, administrative courts, special courts, such as the Labour Court, and various board-like tribunals, particularly in the field of social security. The judiciary’s hierarchical structure does not suffice to secure the unity of adjudication, when the judiciary is divided into multiple hierarchies with overlapping and partially unclear and contested jurisdictions. Thus, the alleged normative and institutional fragmentation of international law into semi-independent regimes has its counterparts in municipal legal systems.

3. Transnational Law The most serious challenges to links between law and state arise from legal relationships transcending nation-state boundaries. Phenomena questioning the state’s internal sovereignty, such as self-regulation of the economy and sports, also tend to have a transnational background and transnational links. Globalisation debates have reached the law, too. On the one hand, law itself displays signs of globalisation while, on the other hand, globalisation of other action fields requires from the law corresponding cross-boundary reactions. Globalisation may, though, be too portentous a concept for many of the phenomena under examination; it would perhaps be more fitting to talk – in the wake of Michael Zürn – of de-nationalisation.20 This concept covers even cross-boundary processes of merely, say, regional reach. So what is globalisation or – to use the less pretentious expression – de-nationalisation about? According to David Harvey’s well-known succinct definition

20. Michael Zürn, Regieren jenseits des Nationalstaates (Suhrkamp: Frankfurt am Main, 1998).

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‘globalisation’ connotes the compression of time and space.21 This involves not only the spatiality but also the temporality of social relations; enlargement of the locus of social interaction is matched by its acceleration. Capital investors and currency dealers not only establish contacts that pay no heed to state borders and geographical distances, but thanks to computers and the Internet, transactions are completed in the blink of an eye. The restricted spatiality of modern nationstate law does not allow it to regulate such global connections. Moreover, the temporality typical of modern law and its practices may also make it unsuitable for regulating transactions in virtual time; for example, the time of legal proceedings in state courts may simply be far too slow. Many accounts of globalisation and its legal consequences privilege the perspective of the economy. But globalisation – or de-nationalisation – is not solely about the economy; it is not manifest only in production and exchange of goods, services, and capital. Pollutants and other environmental risks, cultural influences or criminality and terrorism are not stopped by the border controls of nation-states. Above, I alluded to the crisis of politics and legal regulation ensuing from the shaking of the temporal background assumptions on which the instrumentalist conception of politics and law relies: social sub-systems possess their distinct temporalities, and the time of politics and law does not necessarily mesh with the time of, for instance, the economy. The conception of politics, implicit in the law’s employment in social management, is based on certain spatial beliefs as well. Society, as a project realisable in time, has been conceived of as a nation-state society. Correspondingly, the social space calling for legal regulation has been more or less self-evidently identified with the legal and political space of the nation-state.22 The nation-state’s legal sovereignty met the regulatory needs of the time when the economy was still the national economy; when criminality, too, had its nationality and the consequences of crimes occurred in the place where they were committed; and when the polluting effects of industrial or agricultural production were limited to their immediate environment. The spatial presuppositions of the instrumentalist nation-state legislator have lost their self-evident validity: the functioning of social systems – with the economy as the forerunner – pays increasingly less heed to state borders. Development has been from nation-state societies towards a world society (Weltgesellschaft), composed of functionally differentiated global social sub-systems.23 When society undergoes a process of de-nationalisation and when, as a consequence, the social space to be 21. David Harvey, The Condition of Postmodernity – An Inquiry into the Origins of Cultural Change (Blackwell: Oxford, 1989) at 157. 22. Zürn, Regieren, supra note 20, at 54-55; Markus Schroer, Räume, Orte, Grenzen. Auf dem Weg zu einer Soziologie des Raums (Suhrkamp: Frankfurt am Main 2006) at 189 ff. 23. See Rudolf Stichweh, Weltgesellschaft. Soziologische Analysen (Suhrkamp: Frankfurt am Main, 2000).

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regulated is no longer identical with the political space of the nation-state, the law of the nation-state loses its capacity to respond to regulatory needs. Nationstate regulation is not able to provide solutions to disputes arising in the global economic marketplace or fence off social dumping, threatening the foundations of the welfare state, nor can the environmental legislation of nation-states prevent climate change and global warming. Legal regulation has to look for new forms or be replaced by other means of problem-solving. Even within nation-states, the law has not been the only instrument in the political management of society, nor does it hold any exclusive privilege at the supra-state level; in global governance, legal regulation constitutes only one alternative. International law has been modern law’s traditional response to the need for cross-boundary regulation. As we have seen, however, international law has been firmly tied to the state in both its creation and its effects. The focus of traditional international law has been on relations between nation-states, not on the crossboundary interaction between non-state actors as has set the stage for the current debate on globalisation and de-nationalisation. It is true, though, that the ties binding international law to the nation-state are loosening. International law is still primarily law established by nation-states, but negotiations on multilateral treaties in the field of, say, human rights and humanitarian law or environmental law have been opened to non-state participants, such as NGOs (but not so much as to grant them the right to vote!). This is a modest attempt to create channels for transnational civil society to participate in discourse on new norms and, thereby, to democratise international norm-giving.24 Nor do the legal effects of international law any longer concern solely nationstates – the sphere of international legal subjectivity has expanded. Human rights treaties launched this development: the European Convention, for instance, creates justiciable rights for private individuals. The focus of international law’s obligatory effects is still on states: as a rule, states still constitute the subjects of international legal duties. However, whether treaty obligations should be extended to non-state actors (such as transnational corporations or belligerents in civil-war-like confrontations), and how this could be done, is a highly pertinent topic in current international human rights discourse.25 From the very beginning, international law has been afflicted by the problem of efficacy: how to secure and organise its application and execution? The problem, 24. See Anna-Karin Lindblom, The Legal Status of Non-Governmental Organisations in International Law (Cambridge University Press, 2005). 25. See e.g. Andrew Clapham, Human Rights Obligations of Non-State Actors (Oxford University Press, 2006); Jan Klabbers, ‘(I Can’t Get No) Recognition: Subjects Doctrine and the Emergence of Non-state Actors’ in Jarna Petman and Jan Klabbers (eds), Nordic Cosmopolitanism: Essays in International Law for Martti Koskenniemi (Martinus Nijhoff Publishers: Leiden, 2003)  351-369; Gunther Teubner, ‘The Anonymous Matrix: Human Rights Violations by ‘‘Private’’ Transnational Actors’, 69 Modern Law Review (2006) 327-346.

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of course, derives from international law’s ties with nation-states. International courts have existed, such as the International Court of Justice in The Hague and the preceding Permanent International Court of the League of Nations. However, the jurisdiction of the International Court of Justice depends on nation-states: as a rule, an alleged breach of a treaty can only be brought before the Court if the respective states have issued a declaration acknowledging its jurisdiction. The Court in The Hague resembles a permanent arbitration body, rather than a court empowered to act regardless of consent of the parties. A new development path has, perhaps, been initiated by international criminal courts, whose jurisdiction over individual defendants does not depend on the blessing of the respective nation-states. World War II signalled a turning-point. The Nuremberg and Tokyo trials were based on treaties concluded by the four major allied states. The courts were special courts, established only to rule in the cases defined in the treaties. The courts dealing with Yugoslav war crimes and the genocide in Rwanda and established through resolutions of the UN Security Council are more recent examples of such special courts. The problem with such courts is that they are difficult to reconcile with fundamental human rights principles concerning fair trial in criminal law cases, such as nulla poena sine lege, proscribing retroactive criminal law, and the prohibition of ad hoc courts. The International Criminal Court, established by the Treaty of Rome in 1998, is a response to questions raised by ad hoc special courts with regard to human rights principles. It is a permanent court whose jurisdiction is defined in its statute in adherence to the nulla poena sine lege principle, and its demand for precision and prohibition of retroactivity. The significance of the court is tempered by the fact that only slightly more than 100 states have ratified its statute and that the USA, China, Russia, Israel, and India, for instance, are not among these. International law’s efficacy problems have affected not only the jurisdiction of international courts but also execution of their decisions. Modern municipal law has been supported by the state’s coercive machinery as a warranty for norms’ realisation. At the international level, too, states have been extremely reluctant to relinquish their monopoly on the legitimate use of violence. As a rule, the international community does not have at its disposal a coercive machinery of its own which could guarantee international law’s realisation. Even the UN does not possess permanent military or police forces but depends on the resources which the Member States have allotted to it under Chapter 7 of the UN Charter. Even when specific dispute-solving or sanctioning court-like bodies have been established, international law’s realisation remains reliant on nation-states. Execution of the rulings of the International Court of Justice falls largely to the states themselves, although the Security Council can decide on sanctions against a state. In turn, sentences of international criminal courts are usually carried out

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in the prisons of nation-states. The international prison in Schenningen may, though, attest to an emerging new practice. Thus, treaty-based international courts are still in need of support from nation-states, especially in execution of their decisions. Yet, they point to a legal development surpassing the limitations of traditional international law; towards a transnational law which cannot be compressed into the dichotomous categories of municipal and international law. The distinctive features of transnational law can be attached to either norm-formation or norm-application. Transnational norm-giving assumes other forms than bi- or multilateral treaties between nationstates. In norm-application, in turn, the establishment of dispute-solving or sanctioning bodies beyond the control of nation-states suggests the emergence of transnational law. Of course, no watertight borderline exists between norm-formation and norm-application. Through its own case-law, a court-like body established by an international treaty develops and complements the treaty-based norms it is supposed to apply. In national legal systems as well, courts participate through their precedents in producing new legal norms. The standing of precedents in a legal system depends on the prevailing legal culture and the doctrine of legal sources it includes: we are accustomed to thinking that in common law countries, the courts play a more important role in determining the contents of the legal order than in Continental European Romano-Germanic legal cultures. Furthermore, legislation’s level of precision clearly affects the significance of precedents: the less determinate legislation is, the more leeway it leaves to norm-formation through precedents. Provisions of treaties applied by the International Court of Justice and other international monitoring bodies are usually formulated in rather general terms, and for an obvious reason: in inter-state treaty negotiations, it is difficult to reach agreement on detailed norms, so the concretisation of norms is left to treaty application. The vague provisions of the European Convention on Human Rights have gained precision through the case law of the Strasbourg Court. Thus, to take an example, the mere wording of Article 6 conveys but a pallid picture of the normative contents of fair trial. European human rights law possesses a treaty basis – the Convention and the Protocols. Nonetheless, we can speak of a transnational legal system which has distanced itself from its international law background with respect to both its normative and institutional structure. From each Signatory State, one member of the Court is chosen, and the states participate in the appointment procedure by nominating three candidates. But the final choice is made by the Parliamentary Assembly of the Council of Europe, and once appointed, the judges are not supposed to represent their respective nation-states. Norm-generation through the Court’s case law, in turn, amounts to transnational lawmaking. The Court’s at least partial detachment from (general) international

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law is also manifest in the qualified manner with which it has treated the applicability of certain provisions of the Vienna Convention on the Law of Treaties. The Court has underlined the constitutional character of the European Convention and inferred from this that the Vienna Convention’s provisions on reservations and international legal succession are not applicable as such. Despite its tendency towards independence, European human rights law has retained its interaction with the domestic legal systems of the Signatory States as well. The Convention, in line with the basic rights provisions of national constitutions, creates justiciable individual rights. This explains the steps which national legal systems have taken to avoid conflicts between transnational and national law. Human rights norms have been accorded binding effect in most national legal orders; hence, domestic courts play a central role in ensuring their realisation. Their position is further strengthened by the margin-of-appreciation doctrine adopted by the Strasbourg Court. According to this doctrine, it falls primarily to the domestic courts to assess whether the case at hand meets the requirements that the convention sets for limitations on rights.26 Of course, contradictions between human rights law and domestic law cannot be wholly excluded, as the rulings of the Strasbourg Court condemning the states demonstrate. However, the human rights legal system lacks coercive machinery which would ensure execution of decisions; it is up to the states themselves to take care of this. EU law provides another example of a legal system which has detached itself from its international law foundation. Primary EU norms derive from international treaty law, but secondary norms, such as regulations and directives, cannot be classified in terms of international law. Furthermore, primary norms, as interpreted by the European Court of Justice, treat even private persons as legal subjects, which departs from the premises of international law. Ever since the 1960s, the European Court of Justice has characterised EU (EC) law as an independent legal order, distinct both from the municipal legal orders of Member States and from international law. Nevertheless, both normatively and institutionally, EU law remains intertwined with the legal systems of Member States. According to the prevailing conception in Finland, for instance, the municipal legal order incorporates not only directives and framework decisions duly implemented by Finnish state organs but also EU norms covered by the doctrine of direct effect. And when national courts apply EU norms, they act simultaneously as institutions of both the municipal and the EU legal system. In the latter capacity, they are obliged to comply with preliminary rulings of the European Court of Justice. In spite of its basis in international treaty law, WTO law, too, has assumed features of a transnational legal system, resisting the dichotomy of international 26. Jukka Viljanen, European Court of Human Rights as a developer of the general doctrines of human rights law. A study of the limitation clauses of the European Convention on Human Rights (Tampere University Press, 2003).

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and municipal law. Its institutional structure includes dispute settlement panels, whose decisions may be appealed to the Appellate Body. These organs also produce normative material specifying and complementing treaty provisions. However, adhering to the traditional starting premises of international law, WTO law focuses on relations between states, and execution of decisions of dispute-resolving bodies is also left to the states themselves. International environmental and maritime law, too, display signs of a corresponding movement away from international treaty law towards a transnational legal system. From the perspective of international law, the development has been problematised as a fragmentation which, in the view of some observers, worryingly threatens its cogency. Particular court-like bodies that do not defer to the precedents of the International Court of Justice shake its position as a guarantor of international law’s unity. The qualified approach of some special courts, including the European Court of Human Rights, to the Vienna Convention on the Law of of the Treaties, has also been seen as a danger to the coherence of international law.27 But whether we conceive of the ongoing process as a fragmentation of international law or as the dawn of transnational law, the growing plethora of legal sources, legal orders, and even legal systems does not mesh with the dichotomy of municipal and international law. The municipal legal order has lost its monopoly on determining legal relations involving private individuals. Even in states whose constitution defines the status of international law according to the dualistic model, transnational norms have an immediate effect, regardless of a transformative act of the national legislator. This is the case in Finland, for instance. Article 95 of the Constitution lays down that international treaties and other international law obligations are to be incorporated into the domestic legal order through an Act of Parliament or a presidential decree. Nonetheless, this constitutional provision cannot prevent the direct effect of, for instance, EU regulations, preliminary rulings of the European Court of Justice, or precedents of the European Court of Human Rights; here, no prior decision of the national legislature is needed. Sovereignty of the national legislator over the domestic legal order may also be diminished by excluding certain regulatory issues from its competence. This is the case in fields such as external trade and customs, which, according to the foundational treaties, fall to the exclusive competence of the EU. And even if the national legislator has retained its competence, use of this competence may have been submitted to transnational monitoring. This is the situation in environmental policy, for instance. Relations between domestic, and international and transnational regulation can no longer be conceived of through the black-box model. 27. Martti Koskenniemi and Päivi Leino, ‘Fragmentation of International Law? Postmodern Anxieties’, 15 Leiden Journal of International Law (2002) 553-579.

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The deficiency of this model is even more conspicuous with regard to transnational regulation that altogether lacks a background in international treaty law and that has emerged as a result of autonomous operation of de-nationalised social sub-systems. Discussants starting from the premises of Luhmann’s autopoietic systems theory have argued that globalisation has produced fragmentation of a new type. Globalisation reiterates the functional differentiation which has characterised modern nation-state society: global society is differentiated into relatively independent sub-systems, and these produce their own transnational law.28 Hence, global law (Weltrecht) is not only differentiated territorially into national legal systems, but the territorial criterion has been complemented by new, functional grounds. Examples of transnational legal systems adhering to functional grounds are provided by the lex mercatoria of international trade, the lex sportiva of international sports, and the lex digitalis of the Internet. In each of these transnational legal systems, the applicable norms have been subsumed by neither municipal legal orders nor international law, while disputes are settled and sanctions imposed by designated transnational bodies.29 Lex mercatoria has evolved to provide solutions to legal disputes in international trade relations in situations where the parties, for some reason or other, do not want to apply any municipal legal order and where the rules of international private law are of no use. Lex mercatoria is applied by international arbitration bodies. In the beginning, the International Chamber of Commerce was the central actor of the system. It offered arbitration services and composed model contracts based on arbitration procedures. Elaboration of substantive norms applied in arbitration was, initially, dominated by European academic experts of private international law and contract law. Subsequently, the role of international, especially US, law firms and consultants employed by them has grown. Lex mercatoria has preserved its character of ‘lawyers’ law’ (Juristenrecht): international, transnational, or national lawgivers have been left aside. This fact has entailed a degree of vagueness concerning applicable norms, in addition to a potential legitimacy problem. The confidentiality of arbitration has prevented formation of case law that might remedy this deficiency – if, in general, it can be considered a deficiency! The emergence of internet-based data banks of arbitration awards has partly redressed the situation. 28. See Gunther Teubner, ‘The Two Faces of Janus: Rethinking Legal Pluralism’ in Jyrki Uusitalo, Zenon Bankowski and Kaarlo Tuori (eds), Law and Power. Critical and Socio-Legal Essays (Deborah Charles: Liverpool, 1998) 119-140; Gunther Teubner, ‘Global Private Regimes: Neo-Spontaneous Law and Dual Constitution of Autonomous Sectors?’ in Karl-Heinz Ladeur (ed.), Public Governance in the Age of Globalization (Ashgate: Aldershot, 2004) 71-87; Andreas Fischer-Lescano and Gunther Teubner, Regime-Kollisionen. Zur Fragmentierung des Weltrechts (Suhrkamp: Frankfurt am Main, 2006). 29. For succinct presentations of these transnational legal systems, see Bernhard Zangl and Michael Zürn (eds), Verrechtlichung – Baustein für Global Governance (Dietz: Bonn, 2004).

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The Convention on the Recognition and Execution of Foreign Arbitration Awards as well as domestic arbitration laws provide for resort to nation-state coercive machinery in the execution of lex mercatoria. But support of this kind from nation-states is not generally needed. Empirical research has shown that the internal sanctions of the international economic system – such as severing trade relations, blacklists and boycotts, and loss of reputation – usually suffice to ensure respect for arbitration awards. It is, though, unclear what significance the mere availability of nation-state coercive execution has had.30 Lex sportiva has largely focused on combating doping. Its transnational efficacy has been backed up by the principle of the one-and-only-association and a pyramid-like organisational structure. Under the principle of the one-andonly-association, the International Olympics Committee acknowledges only one international organisation in each sport. The organisational structure of diverse sports is highly hierarchical, from the international association to basic associations with individual athletes as members. For each country, the international associations recognise only one national association. Organisations at lower levels are obliged to comply with norms established at the higher levels, such as anti-doping rules. Individual athletes and other actors in sports, such as coaches, are obliged to obey these norms either on an association law basis – the legal figures are ‘indirect membership’ and ‘statutes chaining’ – or under a contract law obligation. Lex sportiva is monitored by national and international associations. In athletics, for instance, the IAAF requires that athletes participating in events under its jurisdiction acknowledge its competence. As a rule, sanctions decided by national or international associations can be appealed to an arbitral body. At the transnational level, the central actor is the TSA – CAS (Tribunal Arbitral du Sport – Court of Arbitration for Sport), established in 1983 and with its seat in Lausanne. According to a ruling of the Swiss Supreme Court in 1993, TSA – CAS meets the criteria laid down in the Convention on the Recognition and Execution of Foreign Arbitration Awards. Hence, its decisions can be executed by nation-state machinery. However, lex sportiva does not usually need external assistance, because sports associations themselves possess efficient means of monitoring compliance with, say, competition bans or suspensions for violations of anti-doping rules. Indeed, sports associations tend to be suspicious of the jurisdiction of state courts, regarding these rather as a threat to the independence of lex sportiva and national and international sport in general. As a justification for their competence, courts have usually argued that suspension touches on the athlete’s right to earn a living, which in many countries enjoys constitutional status. The Finnish Supreme

30. Richard P. Appelbaum, William L. F. Felstiner and Volkmar Gessner (eds), Rules and Networks. The Legal Culture of Global Transactions (Hart Publishing: Portland, 2001).

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Court, too, in a precedent from 1998,31 warranted its competence by appealing to the negative economic consequences of a suspension for the athlete.32 Transnational lex digitalis is most developed in the regulation of disputes over domain names. The central actor in the UDRP (Uniform Domain Name Dispute Resolution Policy) is the ICANN (Internet Corporation for Assigned Names and Numbers), which is charged with international administration of domain names. ICANN is a private law corporation with its domicile in California, USA. The legal basis of its powers within the Internet is in fact rather unclear. In 1998, it decided to introduce the UDRP and adopted the respective rules. In the contract of registration, domain name holders commit themselves to the procedure in situations laid down in paragraph 4a of UDRP Policy. The procedure can be initiated by a trademark owner on the grounds of trademark violation. The claimant is entitled to choose between court proceedings and the UDRP procedure. If the claimant opts for the latter, the defendant has no choice but to accept the claimant’s choice under the terms of the contract of registration. The procedure can be portrayed as voluntary dispute settlement, where services are at present offered by, for instance, WIPO (World Intellectual Property Organisation). The UDRP procedure does not hinder subsequent appeal to a court. In court, the claimant can sue, for example, for repeal of the registration, for damages, or for a ban on use of a domain name violating a trademark. The UDRP procedure has not been considered to amount to arbitration (in the strict legal sense of the concept), and decisions have not been granted res judicata effect in courts. UDRP decisions fall outside the scope of the Convention on the Recognition and Execution of Foreign Arbitration Awards as well. In execution of decisions, lex digitalis does not depend on nation-state coercive machinery but can resort to electronic means of blocking use of a particular domain name. If the defendant appeals the decision to a court within a short time frame, its execution will be postponed.33

4. Fragmentation or Harmonisation? We are ready to summarise. The world of the law can no longer be conceived of under the dichotomy of municipal and international law. In the traditional view, law’s empire was ruled by nation-state institutions. The nation-state’s legal sovereignty included the power to determine the law pertaining to both infra-state and inter-state relations. The latter were governed by international 31. Supreme Court of Finland Case KKO 1998:12 32. Dirk Lehmkuhl, ‘Der lange Schatten staatlichen Rechts: Verrechtlichung im transnationalen Sport’ in Zangl and Zürn, Verrechtlichung, supra note 29, 179-197. 33. Volker Leib, ‘Verrechtlichung im Internet: Macht und Recht bei der Regulierung durch ICANN’ in Zangl and Zürn, Verrechtlichung, supra note 29, 198-219.

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law, which, as a rule, was only binding on the state by its own consent, expressed within the framework of its external sovereignty. The legal effects of international law were usually confined to inter-state relations; infra-state legal relations fell under the nation-state’s internal legal sovereignty. When exceptions to the rule were made, that is, when international law was accorded legal effect within the state, this too required the state’s consent. In monistic systems the constitution involved a kind of general consent, while in dualistic systems treaty provisions were, case by case, incorporated into municipal law through an express legislative act. Transnational norm-giving and norm-application have detached themselves from international law, as conceived through the black-box model. Transnational law, such as EU law or human rights law, extends its effects to private subjects irrespective of general or case-by-case consent of the nation-state, and specific courts or other monitoring bodies may have been established for its application. Those normative and institutional structures, which have been generated by globalised social systems themselves, without support from international treaty law, have moved even further away from nation-state control. These include lex mercatoria, lex sportiva, and lex digitalis. Transnational law, as well as non-state norm-formation within the confines of the nation-state, have shaken the national legislator’s monopoly on establishment of legal norms. By contrast, the pivotal position which the courts of nationstates have occupied in modern law has not been contested to the same extent. Transnational law is still in many ways linked to national courts, in line with self-regulatory mechanisms within nation-states. National courts play an important role in both human rights and EU law, and they have also been preserved external controlling powers under lex mercatoria, lex sportiva, and lex digitalis. Furthermore, transnational law is forced to resort to assistance from nation-states in execution of the decisions of its court-like institutions, the monopoly on the legitimate use of violence being the last bastion of nation-state sovereignty. If the efficacy of transnational law can be ensured by means other than the nation-state’s coercive machinery, the ultimate obstacle to its growing independence will be removed. In this respect, the circumstances seem to be most favourable within the systems of transnational law that have emerged without even the initial backing of international law. The efficacy of lex mercatoria and lex sportiva is propped up by the internal sanction mechanisms of commerce and sport –severing of business relations, and competition bans and suspensions, for instance – while decisions in the field of lex digitalis can be instantly implemented by electronic means, by, for example, closing down a website. Tendencies towards globalisation and transnational law are conspicuous, but they should not lead us into ignoring the many ties that still connect the law to the nation-state. The law’s spatial relations are undergoing profound transformations

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but these do not amount to total replacement of municipal by transnational law. The law’s space no longer consists solely of nation-state territory, but this has by no means been abandoned, either – instead of a one and only spatial criterion, it is more fitting to speak of multi-level spatiality, which still includes the level of the nation-state, too. Nevertheless, nation-state law’s relations to other legal systems cannot be conceived of according to the black-box model. Nation-state law has lost its territorial monopoly. The picture is not identical in all fields of law, and both international and transnational law are still reliant on backing from nation-state institutions, especially from the courts and the coercive machinery of execution. But we should note that the state no longer constitutes such a unitary actor as it appeared in the doctrine of the German late constitutional school, for instance. The pluralisation of state will and the fragmentation of state organisation also affect international relations: these are increasingly based on direct international or transnational co-operation and networking between national administrative agencies – environmental authorities, authorities for telecommunications or transportation and the like. This may have its legal basis in treaty-making competence or other international legal powers accorded to the administration.34 Our late modern legal constellation has often been examined through the prism of legal pluralism, a concept with its origin in legal anthropological research. According to Twining, the concept refers ‘to legal systems, networks or orders co-existing in the same geographical space.’35 Legal pluralism is not identical to normative pluralism, which is a wider phenomenon; it may, though, be difficult to draw an exact line between the two, Twining notes. He argues that within legal pluralism, a further distinction should be made between pluralist state legal systems and non-state systems. In pluralist state systems, state courts apply different norm orders to different groups of persons. Twining’s example is the Tanzania of the 1960s where state courts applied, in addition to English common law and statutes, local legislation, Islamic law, Hindu law, and local customary law. Tanzania’s law was ‘“plural” only in the sense that the state recognized different rules for specific categories of persons, especially in such matters as inheritance, family, and some aspects of land tenure.’36 The significance of non-state law is underlined by those scholars of legal pluralism who claim that ‘all societies have a diversity of legal orders, of which “official” state law is only one, and not necessarily the most powerful.’37 We should, however, pay due attention to the conceptual difficulties typical of the pluralism debates: how to delimit law from non-law, or state law from non-state law? 34. 35. 36. 37.

Slaughter, A New World Order, supra note 14. Twining, supra note 2, at 83. Ibid. Ibid., at 84.

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The independence of a legal order presupposes rules of recognition (a normative doctrine of legal sources), determining the (surface-level) norms making up the legal order. For the independence of a legal system, such a recognisable and definable legal order will not suffice. What is further required is institutional differentiation which manifests itself in the establishment of court-like disputeresolving or sanctioning bodies; in the normative dimension, rules of recognition must be complemented with other types of secondary rules. It is not, however, possible, nor perhaps even necessary, to achieve precision in the separation of law from non-law and state law from non-state law. Legal pluralism is typified by interaction and porous borders between both normative orders and institutional structures. Boaventura de Sousa Santos has approached the present legal constellation from a phenomenological perspective – the perspective of legal experience – and introduced the term interlegality. Interlegality is not equal to legal pluralism as defined in traditional legal anthropology ‘in which the different legal orders are conceived as separate entities coexisting in the same political space.’ Typical of interlegality are ‘different legal spaces superimposed, interpenetrated and mixed in our minds, as much as in our actions.’ Santos argues that ‘we live in a time of porous legality or of legal porosity, multiple networks of legal orders forcing us to constant transitions and trespassing. Our legal life is constituted by an intersection of different legal orders, that is, by interlegality.’38 How have late modern legal developments – transformations in the law’s temporality and spatiality and ruptures in nation-state legal monopoly – affected the guises which voluntas and ratio assume in law? Arguably, it has fallen to the law’s ratio to impose restrictions on its voluntas, to ward off what can be termed totalitarianism through law. Thus, constitutionalisation of public power or democratisation of lawmaking – realisation of the central principles of a democratic Rechtsstaat – are conceivable as a reassertion of the law’s ratio against the free reign of its voluntas. But is this way of approaching the law any longer feasible or has it lost its pertinence? These are big questions, and the following comments can only be tentative. The law’s voluntas can no longer be unequivocally identified with the voluntas of the nation-state legislator. The institutional unity of the nation-state has loosened, while articulation of its legal voluntas is no longer the monopoly of the political legislator. The voluntas of international treaty law has been the nation-states’ common voluntas whose contents have been specified in inter-state negotiations. In international treaty law, voluntas has retained the connection to politics which posed the issue of its necessary containment at nation-state level. This connection has been preserved in such a transnational political entity as the EU. By contrast, the tie between law and politics has been severed in legal systems 38. Boaventura de Sousa Santos, Toward a New Legal Common Sense (2nd edn, Butterworths: London, 2002) at 347.

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differentiated on functional grounds and generated by global social sub-systems, such as lex mercatoria, lex sportiva, and lex digitalis. But this has not eliminated the problem of taming the voluntas. The issue of power and control of power is equally pertinent in transnational as it is in international and national normformation and norm-application. Systems-theoretically oriented legal scholarship merits credit for many observations and insights concerning global law. Its blind spot, however, is the power inherent in functionally differentiated legal systems; its systems-theoretically tailored concepts seem to be incapable of capturing power-related phenomena. The constitution has accomplished an important task in erecting barriers to the voluntas of the nation-state legislator. Constitutional provisions on basic rights and constitutional review, as well as constitutional culture functioning through the pre-understanding of legal (and political) actors, have been crucial for the success of this task. International law doctrine has detected, too, normative elements imposing restrictions on treaty-based lawmaking. The dramatic growth of treaty law, as well as international law’s increasing fragmentation, have provided additional impetus to the debate on jus cogens, arguably accomplishing the tasks of ratio in international law. In its Furundzija ruling, the Yugoslav War Crimes Court (ICTY) characterised jus cogens as follows: Because of the importance of the values it [the prohibition of torture] protects, this principle has evolved into a peremptory norm or jus cogens, that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even ‘ordinary’ customary rules. The most conspicuous consequence of this higher rank is that the principle at issue cannot be derogated by States through international treaties or local or special customs or even general customary rules not endowed with the same normative forces.39

The Vienna Convention on the Law of Treaties explicitly acknowledges jus cogens. Article 53 lays down that ‘a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law’, and goes on to explicate that ‘for the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.’ Furthermore, Article 64 provides that ‘if a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.’ The concept of jus cogens is generally accepted in the theory and practice of international law, but its contents and scope of application are highly contested. According to Kosken39. Prosecutors v. Anto Furundzija, Case No. IT-95-17/1-T, ICTY Trial Chamber, Judgment (10 December 1998), para. 153.

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niemi, jus cogens status is most often claimed for prohibition of aggressive use of force; the right to self-defence; prohibition of genocide; prohibition of torture; crimes against humanity; prohibition of piracy; prohibition of racial discrimination and apartheid; and prohibition of hostilities directed at civilians (‘basic rules of international humanitarian law’).40 International human rights treaties and their monitoring bodies point to the internationalisation or transnationalisation of the Rechtsstaat or – from a common law perspective – the rule of law. However, international human rights instruments are not directed towards international or transnational actors but internal power exercised by Signatory States; they complement domestic constitutional basic rights provisions and domestic constitutional review in monitoring nationstate authorities and the voluntas of nation-state law.41 Unless the measures taken by international or transnational bodies can be re-described as a nation-state authority’s action, they fall outside the jurisdiction of the monitoring organs established by human rights treaties, such as the European Court of Human Rights.42 Paradoxically enough, humanitarian interventions by the international community have created quasi-dictatorial authorities uninhibited by human rights instruments, such as the High Representative in Bosnia and Herzegovina or the United Nations Administration in Kosovo. Nevertheless, human rights treaties extend their influence on international legal decision-making beyond their immediate scope of application. They form part of the international legal environment which the principle of ‘systemic integration’ exhorts to heed in applying and interpreting treaty law. This principle has been confirmed in Article 31(3) paragraph c. of the Vienna Convention, laying down that in treaty interpretation ‘any relevant rules of international law applicable in the relations between the parties shall be taken into account’.43 However, human rights treaties possess an equal formal status to other multilateral international treaties; they have not been granted a higher hierarchical position in the norm order of international law. An exception is made only for norms of a jus cogens character. It is true, though, that in the practice and theory of international law, constitutional status has sometimes been claimed for human rights treaties. The European Court of Human Rights has appealed to the constitutional character of the European Convention when arguing that Signatory States are not entitled to make reservations on the basis of the Vienna Convention. Some scholars have 40. Martti Koskenniemi, 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 para. 374. 41. The restricted scope of application of the European convention is confirmed in Art. 1. 42. The legal situation will change if the European Union accedes to the European Convention on Human Rights. 43. See also Koskenniemi, Fragmentation of International Law, supra note 40, at para. 413.

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defended the view that human rights law represents the constitutional dimension in international law and, therefore, obliges the states irrespective of their consent. But in the practice of international law, jus cogens standing has been accorded only to some human rights norms, such as prohibition of torture, but not to human rights law in its entirety. International law also lacks institutional procedures that could ensure the primacy of human rights over, say, WTO law.44 In the Koskenniemi-style critical narrative, human rights treaties with their monitoring bodies stand on an equal footing with other regimes of fragmented international law, such as WTO law or international environmental law. The regimes are depicted as being engaged in a strategically-oriented jurisdictional contest: a contest over the power to define the contents of international law. International law cases are often related to more than one regime, and their legal assessment depends on the regime from whose perspective it is examined.45 Constitutionalism at the level of general international law is still largely wishful thinking rather than existing practice. Constitutional discourse is more credible in the context of particular international law regimes or such particular transnational legal systems and polities as the European Union. Whether it is possible to speak of a constitution beyond nation states even in such contexts, turns, of course, on our conceptual choices. ‘Constitution’ in the formal sense refers to a unitary constitutional enactment. The EU does not possess such a constitution, nor will it do so in the foreseeable future following the 2005 demise of the Constitutional Treaty. By contrast, it can well be argued that the EU already has a constitution in the substantive sense of the concept. The substantive concept alludes to the functions of the constitution in the legal and political systems. If the legal order involves norms accomplishing such functions, it is warranted to speak of a constitution in the substantive sense of the term. The founding treaties regulate not only the application and execution of EU law but also the production of new EU norms. Furthermore, EU law includes a basic rights dimension. The European Court of Justice started to appeal to basic rights principles as a reaction to some domestic constitutional courts’ eagerness to submit EU norms for their review, and in the Maastricht Treaty an explicit provision confirmed the status of basic rights as general principles of EU law. A new phase was reached with the Charter on Fundamental Rights, which was adopted as a solemn declaration at the Nice 2000 summit and whose legal significance is confirmed in the Reform Treaty (Lisbon Treaty), replacing the failed Constitutional Treaty. Thus, EU law includes norms regulating production of new norms and ensuring basic rights, as 44. In international law debates, constitutional status has also been proposed for the UN Charter. See e.g. Bardo Fassbender, ‘The United Nations Charter as Constitution of the International Community’, 36 Columbia Journal of Transnational Law (1998) 529-619. 45. In international law, the concept of regime, too, is used in various senses. See Koskenniemi, Fragmentation of International Law, supra note 40, at paras 123-137.

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the standard definition of a substantive constitution presupposes. The founding treaties also establish a structural coupling between the EU’s political and legal dimensions in the manner required by Luhmann’s notion of a constitution.46 The example of the EU shows that rights-based review in international or transnational law does not necessarily presuppose a universal constitution, based on international human rights treaties, which would extend the obligatory force of treaties from nation states to international and transnational law entities. The voluntas of EU law is restricted by the EU’s own basic rights norms, whose monitoring falls to the EU’s own judicial organisation. However, a constellation of ‘interlegality’ prevails between EU law’s basic rights norms, the European Convention on Human Rights, and national constitutions. The Treaty on the European Union attaches basic rights which count as general principles of EU law to the European Convention on Human Rights, and Article 52(3) of the EU Charter lays down that the Convention provides the baseline for defining the protection provided by EU basic rights. The Charter also includes a provision on its relation to the constitutional rights of Member States (Article 54). Clearly, the primary locus of power-controlling norms and practices is and should remain in the fragmented regimes of international and transnational law. Such a solution generates its own risks: the basic rights perspective is in danger of being subjected to the system’s or regime’s specific function; to its ‘internal ratio’. In the EU, this problem culminates in the tension between the four market freedoms, expressing the original economic orientation of European integration, and basic rights. In Habermas’ democratic Rechtsstaat, the disciplining effect of the ratio is supposed to be already achieved in democratic lawmaking procedures; in ethico-political and moral discourses with the public sphere of civil society as their primary stage.47 It is not easy to add discursive elements to international and transnational norm-formation or norm-application, as has been shown in the debates on the EU’s democratic deficit and the prospects of a European civil society and demos. In the discussion on democratisation of international law regimes – international environmental law, human rights law, WTO law, and the like – the emphasis has been on NGOs – such as, say, Amnesty International, Human Rights Watch, or Greenpeace. Optimistic observers have also detected signs of an emerging transnational public sphere, for which new communication and information technologies and the ensuing communicative and cultural globalisation would pave the way. Apparently, transfer of the principles of a democratic Rechtsstaat to the transnational level confronts the toughest obstacles in those global legal systems which, 46. Luhmann, supra note 3, at 404 ff. 47. See Habermas’ reconstruction of the principles of the Rechtsstaat in his Between Facts and Norms, supra note 12.

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according to legal systems theorists, are not structurally coupled so much with the political as with other social sub-systems. Norm-formation in these legal systems, too, involves power, although this is not equivalent to the political power inherent in the norm: formation of the nation-state legal system. Furthermore, these transnational legal systems are confronted with problems of a basic rights character; such as access to the Internet as an issue of freedom of speech (lex digitalis) or an athlete’s right to compete as an issue concerning the right to earn a living (lex sportiva). Gunther Teubner suggests that the concept of constitution be detached from its link to relations between the legal and political systems; in his proposal, the constitution would refer generally to structural couplings between the reflexive mechanisms of the legal and some other social system.48 Such a constitutional concept would, however, deprive the constitution of its tasks in preventing the arbitrary exercise of power – tasks integral to the idea of a democratic Rechtsstaat. Functionally-differentiated global legal systems, such as lex mercatoria, lex digitalis, or lex sportiva, are not subject to general international law, nor is their norm-formation restricted by the jus cogens of international law. Fischer-Lescano and Teubner argue that instead of a harmonised global jus cogens, each system should generate its own indispositive norms, sensitive to its specific social context.49 But the problem remains as to how norm-formation in these systems can be induced to heed considerations that may contradict their ‘internal ratio’, that is, the specific function these differentiated systems are supposed to accomplish: how could norm-formation in, for instance, lex mercatoria be expected to produce environmental jus cogens, binding on transnational arbitral bodies? The evidence for law’s growing fragmentation and for late modern legal pluralism is irrefutable. Nevertheless, observations focussing on mounting polycentricity and pluralism capture but a part of the picture. Fragmentation is countered by harmonisation and the pursuit of coherence. The increasing significance of human rights principles in national, international, and transnational contexts shows substantive harmonisation, which should not be ignored even when examining legal development from an external, observer’s perspective. The backdrop to legal fragmentation is frequently seen in cultural fragmentation and value pluralism – in the multi-cultural character of modern societies which ensues from, among other things, mounting immigration. The elevated status of human and basic rights shows that accounts of value pluralism and fragmentation convey a deficient image of changes in our cultural landscape. Ethical fragmentation – the 48. Teubner, ‘Global Private Regimes’, supra note 28; Gunther Teubner, ‘Societal Constitutionalism: Alternatives to State-centred Constitutional theory?’ in Christian Joerges, Inger-Johanne Sand and Gunther Teubner (eds), Constitutionalism and Transnational Governance (Hart Publishing: Oxford, 2004) 3-28. 49. Fischer-Lescano and Teubner, Regime-Kollisionen, supra note 28, at 100-101.

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differentiation of conceptions of the good life – does not necessarily exclude the possibility of a wide-reaching consensus on fundamental moral principles. And, in fact, it is on the very basis of such a possibility that human rights principles are able to exercise their harmonising effect in diverse legal contexts. It may well be that ultimately, morals-based harmonisation exerts a more profound impact on law’s development than ethical fragmentation; that law’s cultural ties lie in the dimension of moral principles, rather than in the direction of ethical values. The purport of basic and human rights, such as freedom of religion and conscience or individual and collective cultural rights, is to leave conceptions of the good life to the cultural autonomy of individuals and communities. But legal fragmentation is not incited only by a cultural value pluralism whose significance can be countered by the argument relying on the distinction between ethics and morals. If systems-theoretically oriented discussants hit the mark, a reference to cultural differentiation would not get to the crux of the matter. The law’s late modern fragmentation would, rather, result from the progress of functional differentiation, typical of modern society, and its extension to the global level. This would also account for the emergence of transnational legal systems such as lex mercatoria or lex digitalis, and, perhaps, of semi-independent regimes of international law as well. In the systems-theoretical narrative of law, transnational legal systems are not only structurally coupled with the respective global social sub-systems, providing the stage for norm-formation; they also constitute elements of a global legal system. Teubner argues that norms produced in other, ‘non-legal’ global social systems can only obtain legal validity in legal practices within the global legal system.50 Late modern interlegality can be examined in other conceptual frameworks, too, than that proffered by systems theory. What is important is to avoid interpreting legal pluralism in terms of a reciprocal closure of diverse legal orders or legal systems; the outdated dichotomy of municipal and international law should not be replaced by another black-box model. As Sousa Santos emphasises, transnational and national law, as well as state and non-state law, overlap and interpenetrate; both normative and institutional structures are interconnected by continuous flows of communication.51 How is this communication possible? Self-regulation or transnational norm-formation does not take place in political fora, realising the principle of democracy. As Klaus Günther remarks, the law detached from the nation-state consists largely of lawyers’ law (Juristenrecht).52 In a globalising world, the language of lawyers and legal culture, which shapes 50. Teubner, ‘Global Private Regimes’, supra note 28. 51. Sousa Santos, Legal Common Sense, supra note 38, at 417 ff. 52. Klaus Günther, ‘Rechtspluralismus und universaler Code der Legalität: Globalisierung als rechtstheoretischer Problem’ in Lutz Wingert and Klaus Günther (eds), Die Öffentlichkeit der Vernunft und die Vernunft der Öffentlichkeit (Suhrkamp: Frankfurt am Main, 2001) 539-567.

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lawyers’ professional pre-conceptions, is also globalising. Günther talks about a universal legal code which allows for communicative links between diverse legal systems. The concept of legal code brings to mind Luhmann’s sociological legal theory, according to which the legal system, in line with other social sub-systems, is differentiated on the basis of its distinct binary code. However, the code Günther has in mind is not reduced to the Luhmannian distinction between law and non-law (Recht / Unrecht) but constitutes a richer legal grammar with normative, conceptual, and methodological elements. The code involves, for instance, the concepts of rights, duties, and legal subjectivity; the distinction between primary and secondary norms; the principles of strict liability and liability presupposing culpa; the requirement of predictability of liability and sanction; principles guiding division of the burden of proof; institutionalisation of the role of the neutral tertius; the principle of audiatur et altera pars, and so on. In particular, the human rights related principles which Günther has included in his tentative definition of the universal legal code manifest the law’s layered nature; in Francois Ewald’s terms, the law possesses a critical reflexive instance, which determines the boundaries of legality. In fact, Günther enriches Luhmann’s legal code with the formal determinations of law, elaborated by Habermas in his Between Facts and Norms, which aim at ensuring both private and public autonomy for members of society. In Günther’s view, Habermas’ legal philosophy – in line with the mainstream of 20th century legal theory and philosophy – presupposes the democratic nation state. But Günther claims that the legal code’s attachment to the nation state has been a historically contingent fact; globalisation and ensuing legal pluralism have liberated it from its previous spatial bonds and transformed it into a ‘universal code of legality’.53 Günther argues that the concepts and principles of the universal code were originally developed in particular historical legal cultures of the Western world: the Continental European Romano-Germanic and the Anglo-American common law cultures. However, they have severed their ties with their cultural seedbed and undergone a process of formalisation; consequently, they can now be specified and substantiated with culturally determined contents. Social and legal actors can employ the code in formulating their interests in legal terms, in organising their social and co-operative relations, and in regulating their mutual conflicts. It is neither possible nor necessary to engage here in a detailed examination of the ingredients Günther suggests be included in the universal code of legality. From my own point of view, it is interesting to notice similarities between Günther’s code and my interpretation of modern law’s multi-layered structure. Günther’s legal code is comparable with what I have called modern law’s ‘deep 53. Ibid.

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structure’ (deep culture).54 We could contend that at its core, the globalisation of law equates with the globalisation of modern law’s deep structure or – to put it in Günther’s terms – the formation and spread of a universal legal code that facilitates communication across the boundaries between legal orders, legal cultures, and legal systems. Following this line of argument, modern law’s attachment to the nation-state is a historically contingent feature, which, within modern law’s layers, is related to the level of legal culture rather than that of deep structure. In turn, in the debate on epochs of law, this argument would lead to the conclusion that globalisation and increasing legal pluralism do not yet warrant a claim of the demise of the modern era. In fact, in both its pluralism and the transnationalisation of its legal-cultural underpinnings, recent legal development is reminiscent of the formative period of modern law in late-medieval Europe, before the rise of the nation-state. To sum up, our contemporary legal scene gains its colours not only from fragmentation but also from harmonisation; globalisation entails not only differentiation but also unification. It is no accident that the drift towards legal pluralism has primarily been emphasised by sociologically-oriented observers, and that the critical narrative of the Koskenniemi school reserves such an integral place for the allegedly irreconcilable fragmentation of international law and the interest-oriented, strategic power play between the regimes of international law. By contrast, normatively-arguing legal theorists tend to stick to the idea of the law’s unity; this, in turn, has prompted their sociologically-minded interlocutors to employ the label of legal ideology.55 Which side of the development predominates, fragmentation or harmonisation, appears to hinge on the point of view adopted by the discussant. Twining notes that a concept of legal pluralism pointing to a multiplicity of legal orders or systems ‘shifts the main standpoint from the judge, who typically has to take a monistic view of a legal order, to external observers or to the individual or other legal subject who typically finds himself or herself governed by a variety of regulatory orders, which overlap, interact and often conflict.’56 From the internal perspective of the judge, the ‘fiction’ of unity – the striving for coherence – purports to fulfil an important normative task: to ensure formal justice, to meet the requirement that like cases be treated alike. Formal justice forms part of the legal code employed by judges and other lawyers in their legal discourse. As I have argued, state court judges remain vital players in the game of law, even in circumstances of mounting polycentricity and legal pluralism. Correspondingly, the participant’s standpoint of the judge and the concomitant ‘fiction’ of unity still 54. Kaarlo Tuori, Crtitical Legal Positivism (Ashgate: Aldershot, 2002). 55. By way of representative example, see Roger Cotterrell, Law’s Community (Clarendon Press: Oxford, 1996) at 95 ff. 56. Twining, supra note 2, at 84.

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constitute wholly justifiable epistemological premises. But just as judges have to acknowledge the polycentricity of legal sources, legal theory must also renounce its at least implicit commitment to the self-contained legal order of the nation state. The unity of the law can no longer be conceived along the lines of a closed hierarchical order, topped by Kelsen’s basic norm or Hart’s rule of recognition and propped up by the institutional hierarchy of the judiciary. Nor can unity be created by a systematisation adopting the perspective of the nation-state legislator and adhering to the black-box model of relations between municipal and international law. Unity must be construed by means of substantive criteria, of the kind Günther has included in the universal code of legality. Günther’s code can be conceived of as the law’s sedimented ratio, which functions as a tacit pre-understanding of the actors of globalised law. The law’s ratio, too, cuts its ties with nation-states; it brings coherence to the fragmentation of surface-level legal orders and the pluralism of legal systems. And if – as Günther assumes – the ratio sedimented into the legal code involves normative ingredients such as basic rights principles, it also accomplishes tasks related to disciplining the law’s voluntas. Legal scholarship plays an important role in developing professional legal culture and in creating coherence in the law. Legal scholarship has reacted to the loosening of the law’s ties to the nation-state with proposals for new fields of law – environmental law, medical law, sports law, communications law, and so on – with their distinct legal concepts, principles, and theories. These fields gather together normative material from diverse sources and norm orders, and, through their general doctrines, inject coherence into the polycentricity of legal sources and the pluralism of legal orders and systems. Often enough, they build up networks connecting researchers and research institutes from different states. Here they follow international law, the pioneer in the internationalisation of legal doctrine. They demonstrate the law’s transformation in the direction of an expert system, and the expansion of legal culture’s space beyond nation states. Furthermore, the internationalisation of legal education also infuses cross-boundary coherence into the law.

In the Search of International Homo Economicus: Individual Agency and Rationality in Global Governance René Urueña* ABSTRACT: This article explores the role of individual agency in global governance. To do so, it follows two strategies. First, it discusses international law and economics, tries to unearth the premises behind this approach to international law, and maps its connections to (and divergences with) traditional law and economics, on one hand, and realism in international relations, on the other. Second, it explores the place of the individual in international law. Joining these two paths, the article argues that international law overlooks human agency, as it fails to understand individuals as anything beyond helpless entities in need of protection from global governance institutions. The link between human nature and global governance is thus severed. As a result, recent efforts to re-legalize global governance (such as global constitutionalism or the global administrative law project) fall into quarrels regarding the best regulatory machinery to defend human rights, without giving much thought to the humans of those rights. Despite the narrative of progress concerning the role of individual in international law, human agency seems to be irrelevant for contemporary maps of global governance. This article concludes that, where human agency is disregarded, proxies emerge. Thus, the power of expertise, exercised by human rights institutions or non-governmental organizations, fills the void left by human agency in international legal argumentation. KEYWORDS: international law, law and economics, global constitutionalism, global administrative law, human rights, realism

This paper seeks to explore the role of individual agency in global governance. To do so, it deploys two strategies. First, it discusses international law and economics, tries to unearth the premises behind such economic approach to international law, and maps its connections to (and divergences with) traditional law and *

Assistant Professor and Director of the International Law Program at the Universidad de Los Andes in Bogota, Colombia. Research Fellow, Centre of Excellence in Global Governance Research, University of Helsinki.

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economics, on one hand, and realism in international relations, on the other.1 The second strategy is to explore the place of the individual in international law. Joining these two paths, this paper argues that international law seems to overlook human agency, as it fails to understand the individual as anything beyond a helpless entity in need of protection from global governance institutions. The link between human nature and global governance is thus severed. As a result, recent efforts to re-legalize global governance (such as global constitutionalism or the global administrative law project) seem to fall into quarrels regarding the best plan to defend human rights, without giving much thought to the humans of those rights. Before we go there, though, it is necessary to start by exploring the reasons behind the need to ‘bring the law back’ to global governance. Such shall be the subject of the opening section of this paper, where we explore the notion of ‘managerialism’. Then, we shall turn to an analysis of the uneasy relation between public international law and law and economics (section 2). This discussion, will then lead us to the problem of the individual in international law (section 3), where the notion of individual agency will be discussed. Human rights law and expertise seem to be the key concepts in this debate, and section four tries to unpack them. This effort leads to the discussion in section five, according to which, despite the narrative of progress concerning the role of the individual in international law, human agency seems to be irrelevant for contemporary account of the power is globally exercised. Finally, some conclusions are drawn.

1. The Challenge of Managerialism As I write these lines, fear of an AH1N1 pandemic seems to be growing. One sneezes in the subway, and gets rotten stares from mothers holding their babies. One reads the papers, and the front page warns that no vaccine is available. One gets bizarre calls from old aunts living faraway. And one sees legal scholars jumping at one more case in which traditional categories of public international law fall short when dealing with yet another challenge of globalization. The result: awkwardly titled blog entries (‘Swine Flu, Pandemics, and Transnational Regula-

1.

‘International law and economics’ (IL&E) refers to the use in public international law of methodologies developed originally by the law and economics (L&E) movement. The transformation of traditional law and economics into international law and economics is dealt with in Section 2 of this paper. For those unfamiliar with the original movement, a good non – legal introduction may be found in E. Mackaay, ‘History of Law and Economics’ in B. Bouckaert, and G. De Geest (eds), Encyclopedia of Law and Economics, Volume I. The History and Methodology of Law and Economics (Edward Elgar Publishing: Cheltenham, 2000) 65117.

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tory Networks’2 for example), and the confirmation that international law is not cut for the world we live in. To be sure, pandemics are nothing new. And, more importantly, a pandemic is a public goods problem that calls for cooperation among sovereign nation-states. International law is then ideally suited to deal with the problem, and it has done so: there was, after all, a Health Organization within the League of Nations which was, in turn, successor to an International Office of Public Health, established back in 1907.3 In a way, these were the challenges that justified an international legal regime to begin with. And yet, this is not what the argument is all about. The point is that today a pandemic triggers international measures that hardly fit in the categories of classic public international law.4 There is a fundamental shift of power away from states, which puts international law in a tight spot.5 The World Health Organization (WHO) has the power to adopt trade and travel advisory warnings that directly affect the lives and business of millions. The only treatment for the possible pandemic is made by multinational corporations, which fall outside the scope of classic international law, and yet hold patents protected by that very legal system. The apparent fragmentation of the law dealing with the crisis calls for an odd (and perhaps ultra vires) joint statement by the Food and Agriculture Organization of the United Nations (FAO), the World Organization for Animal Health (OIE), the WHO and the World Trade Organization (WTO).6 And then there are the issues of infra-state, inter-agency, coordination that fall between the cracks of an inter-state system. From that perspective, international law seems, indeed, not cut for the world we live in.

2. 3.

4. 5. 6.

Kevin Anderson, ‘Swine Flu, Pandemics, and Transnational Regulatory Networks’, Opinio Iuris, April 26 (2009) (visited 15 February 2010). See International Agreement Respecting the Creation of an International Office of Public Health. Signed at Rome, December 9, 1907. Procès-verbal recording deposit of ratifications at Rome, dated November 15, 1908 (1909). Available at: (visited 15 February 2010). David P. Fidler, overnance and the Globalization of Disease, (Palgrave Macmillan: Hounmills, 2004); David P. Fidler, ‘The Swine Flu Outbreak and International Law’, 13 ASIL Insights (2009). Jason Sapsin Myongsei Sohn, ‘Globalization, Public Health, and International Law’, 32 The Journal of Law, Medicine & Ethics (2004) 87- 89. FAO, OIE, WHO and WTO. Joint Statement of May 2 2009. Available at: (visited 15 February 2010).

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Many other issues provoke the same reaction: the once-called war on terror,7 for instance, or financial regulation,8 climate change,9 and education policy,10 among many others. The common theme is simple enough: an intuition that political, economic or technological changes have revealed certain limitations of international law, thus making it irrelevant for dealing with those very changes. Consider the case of anti terrorist policy. Soon after 9/11, a heated discussion ensued regarding whether international law as such was the ideal language to deal with that challenge.11 Some scholars argued that the answer was on the negative. Revisiting some arguments featured in the so-called Austinean challenge, they argued that international law either lacked the centralized system of enforcement, or was too indeterminate or too state-centered to serve as a useful tool against that new ‘enemy’.12 Most international lawyers, though, did not go as far, and retorted that, while it was true that such anti-terrorist policy did present international law with the need to change, the language itself should not be abandoned, but rather improved.13 To be sure, the structure of this debate is not exclusive to antiterrorism. Throughout several areas of international law, it is possible to discern an argument according to which a particular circumstance has rendered ‘traditional’ international law obsolete or ineffectual. And yet, the argument goes, measures have to be taken: we need to deal with X (say, climate change, capital adequacy standards or terrorism) and we will do it, with or without international law. I will call this approach ‘managerialism’, borrowing the expression from Koskenniemi, who identifies a global governance mind-set that sees international law as one of many tools available to achieve a certain goal.14 This, in turn, would lead to a culture of deformalization that deprives international law from its independent

7. 8. 9. 10. 11. 12. 13. 14.

René Urueña, ‘International Law as Administration: The UN’s 1267 Sanctions Committee and the Making of the War on Terror’, 4 International Organizations Law Review (2008) 321-342. David Zaring, ‘International Law by Other Means: The Twilight Existence of International Financial Regulatory Organizations’, 33 Texas International Law Journal (1998) 281-327. Hari M. Osofsky, ‘Is Climate Change “International”? Litigation’s Diagonal Regulatory Role’, 49 Virgina Journal of International Law (2009) 585-649 at 586. Armin von Bogdandy, ‘The Exercise of International Public Authority through National Policy Assessment: The OECD’s PISA Policy as a Paradigm for a New International Standard Instrument’, 5 International Organizations Law Review (2008) 241-298. For a review of that debate, see R. Uruena, ‘International Law as Administration’, supra note 7, at 326 Wade Mansell and Emily Haslam, ‘John Bolton and the United States’ Retreat from International Law’, 14 Social Legal Studies (2005) 459-485; Frédéric Mégret, ‘“War”? Legal Semantics and the Move to Violence’, 13 European Journal of International Law (2002) 361-399. Antonio Cassese, ‘Terrorism is Also Disrupting Some Crucial Legal Categories of International Law’, 12 European Journal of International Law (2001) 993-1001. Martti Koskenniemi, ‘Global Governance and Public International Law’, 37 Kritische Justiz - Vierteljahresschrift für Recht und Politik (2004) 241-254.

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normative pull,15 and would also force a vocabulary change in the discipline – replacing thus ‘international law’s archaic mores by a political science-inspired language of “governance”, “regulation”, or “legitimacy”’.16

2. The Uneasy Relation between Public International Law and Economics Managerialism is at its most strident in international law and economics, with which international lawyers seem to have a tortuous relation. On one hand, scholarly interest on international law and economics (‘IL&E’) is on the rise, as research projects emerge17 and new books are published.18 However, the tone is always cautious and the reception is lukewarm: yes, IL&E is useful, but it misunderstands central tenets of ‘our’ discipline (‘us’ being international lawyers).19 Yes, IL&E sounds sophisticated, but we have been discussing this stuff since Morgenthau. Yes, IL&E is exciting, but it is too American to be useful for (European) international lawyers. No doubt, some of this is true. Some of the variants of IL&E seem indeed too simplistic to be taken seriously – think, for example, of Goldsmith and Posner’s two-States model of customary law.20 Moreover, it is apparent that current IL&E features several parallelisms with the long discussions that international relations scholars have been having with international lawyers for several decades now.21And, certainly, law and economics has a distinct American aftertaste that 15. Martti Koskenniemi, ‘The Fate of Public International Law: Between Technique and Politics’, 70 Modern Law Review (2007) 1-30. 16. Martti Koskenniemi, ‘The Politics of International Law - 20 Years Later’, 20 European Journal of International Law (2009) 7-19. 17. Two recent events come to mind, one in Europe, the second in the US: ‘Coordination in the Absence of Sovereign Intervention’, (dedicated volume) 165 Journal of Institutional and Theoretical Economics (2009), and a symposium hosted by the University of Illinois last year: A. van Aaken, C. Engel, and T. Ginsburg, ‘Public International Law and Economics: The Power of Rational Choice Methodology in Guiding the Analysis and the Design of Public International Law Institutions’, 1 Illinois Law Review (2008) 1-4. 18. For two recent examples, see A. T. Guzman, How International Law Works: A Rational Choice Theory (Oxford University Press, 2008) and J.P. Trachtman, The Economic Structure of International Law (Harvard University Press: Cambridge, 2008). Not as recent, but still quite influential is J. Goldsmith and E. Posner, The Limits of International Law (Oxford University Press, 2005). 19. See A.L Paulus, ‘Potential and Limits of the Economic Analysis of International Law: A View from Public International Law’, 165 Journal of Institutional and Theoretical Economics (2009) 170-184 20. J. Goldsmith and E. Posner, The Limits of International Law, supra note 18, at 23. 21. For the tortuous relation between international relations and international law, see K. W. Abbott, ‘Modern International Relations Theory: A Prospectus for International Lawyers’, 14 Yale Journal of International Law (1989) 335-408; A.M Slaughter, ‘International Law

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makes it hard to swallow for European continental lawyers. However, it is also true that IL&E shares more in common with the traditional ‘doctrinal approach’ to international law than either of them cares to admit. Hence, the question to ask is: How did L&E’s premises come to bear in international law? It has become traditional to argue that international L&E is the offspring of the realist approach in international relations (IR),22 which is to a certain extent true: realism and international L&E share the premise that States are the basic unit of analysis in IR, and that such units act solely in accordance to self-interest. Rational choice theory is, in that sense, a natural partner of IR realism.23 However, I believe that the traditional narrative focusing on the link between realism and IL&E obscures divergences between domestic and international L&E that are, in turn, useful to unpack the role of economic thinking and human agency in international law. There are three variables to the analysis: IR realism, L&E, and international L&E. There is a methodological commonality between L&E and realist IR, most evidently seen in the overwhelming importance given by both to self-interest. And yet, both L&E and realism are much more than rational choice, and it is in those additional features that the economic analysis of the law had to be transformed in order to create its own international self – thus coming closer to realism. Two main transformations are worth noting here. First, we find the role of law recognized by each: while L&E is instrumental in this regard, realism and international L&E are not. The second is the notion of the individual (and not the State) underlying each view: while L&E is methodologically individualist, realism and international L&E are not. In order to argue this point, I shall use Morgenthau’s version of realism, conceding in advance that other versions of realism may strengthen (or weaken) these points of divergence.

and International Relations Theory: A Dual Agenda’, 87 American Journal of International Law (1993) 205-239; A.M Slaughter, A. S. Tulumello & S. Wood, ‘International, Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship’, 92 American Journal of International Law (1998) 367-397; and C.L Sriram, ‘International Law, International Relations Theory and Post-Atrocity Justice: Towards A Genuine Dialogue’, 82 International Affairs (2006) 467-478. 22. See, for example, A.L Paulus, ‘Potential and Limits of the Economic Analysis of International Law: A View from Public International Law’, 165 Journal of Institutional and Theoretical Economics (2009) 170 - 184. Paulus does conclude, though, that ‘the claim of international law and economics to newness is not completely out of place’ (at 171). In a similar vein, see A. van Aaken, ‘To Do Away with International Law? Some Limits to “The Limits of International Law”, 17 European Journal of International Law (2006) 289-308 at 292. 23. A status quo that some IR scholars have come to dislike, proposing therefore a ‘return to the roots’ - that is, a return to the classic works of realism (such as Hobbes, Rousseau and Morgenthau). As an example of that trend, see M.C Williams, The Realist Tradition and the Limits of International Relations (Cambridge University Press, 2005).

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2.1. L&E’s Extreme Makeover 1: Law as a Means to an End For all their soul searching with regards to the limitations of the rational choice approach,24 domestic L&E scholars remain remarkably silent of their views concerning the role of law in society. This understanding is twofold: first, L&E holds an instrumental view of the law, that is, it understands that law is not important in and of itself, but rather that it is a means to an end.25 And second, L&E holds that such an end is efficiency, that is, allowing rational individuals to achieve their goals with as less a hurdle as possible.26 While most L&E scholars do not go as far as to argue that such is law’s only (or even) main goal,27 it still ranks highly on the scale, as it provides the central criterion for making the project of normative L&E possible.28 L&E’s instrumental view of the law does not derive from its rational choice approach. As Tamanaha has shown, L&E’s rival schools (notably, critical legal studies – ‘CLS’) also purport an instrumental view of law – in their case, though, with regards to a goal different from efficiency.29 At the end, as the song goes, we are all looking for something. This idea, though, is far from being self-evident. Tamanaha’s own work, for one, is an impressive effort to show that, even though instrumentality seems to be the default approach to legal reasoning today, this is not a necessary outcome.30 There are non-instrumentalist views to be considered: from Finnis31 to Dworkin,32 there are plausible alternatives to believing that law is a mere tool to be used as desired.33 Now, the direct transplant of L&E’s instrumentalism to international law is troublesome, and it would have been seriously doubted by Morgenthau. While Morgenthau defended the existence of international law, as he found ‘worth mentioning, in view of a widespread misconception in this respect, that during the four hundred years of its existence international law has in most instances

24. Basic textbooks today include the critique. See, for example, W. Weigel, Economics of the Law: A Primer (Routledge: London, 2008) at 22. 25. See B. Tamanaha, Law as a Means to and End: Threat to the Rule of Law (Cambridge University Press, 2006) at 2. 26. This point has been made before in A. A. Leff, ‘Economic Analysis of the Law: Some Realism About Nominalism’, 60 Virginia Law Review (1974) 451-482 at 456. 27. See, for example, R. Posner, The Problems of Jurisprudence (Harvard University Press, 1993) at 373. 28. See R. Posner, Economic Analysis of the Law (5th edn, Aspen Law & Business: New York, 1998) at 30. 29. See Tamanaha, Law as a Means to and End, supra note 25, at 121. 30. Ibid., at 11. 31. See Jhon Finnis, Natural Law and Natural Rights (Oxford University Press, 1980). 32. See R. Dworkin, Taking Rights Seriously (Harvard University Press: Cambridge, 1985). 33. I have explored this problem before, framing it as an issue of the legal form and its independent agency, in R. Urueña, ‘International Law as Administration’, supra note 7, at 333.

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been scrupulously observed’,34 he considered that international law is not the ultimate motivation of state behaviour – that is, as Koskenniemi has put it, he argued that ‘politics is focal and law secondary’.35 Morgenthau, in that sense, was not preoccupied by the source pedigree of international law, but rather tested its validity in terms of effectiveness: ‘a rule […] is valid when its violation is likely to be followed by an unfavourable reaction, that is, a sanction against its violator’.36 To his mind, ‘an alleged rule of international law against the violation of which no state reacts, or is likely to react, is proven to be, by this very absence of probable reaction, not to be a valid rule of international law’.37 To be sure, applying this factual test of validity yields disappointing results for international law: ‘from the iron law of international politics that legal obligation must yield to national interest’,38 no nation has been immune. Thus, though an actual variable in the equation, international law is irrelevant (and thus, invalid in the particular contexts of its irrelevance). In its ‘inveterate tendency to stick to [its] assumptions and to suffer constant defeat from experience’,39 international law becomes epiphenomenological.40 As may be seen, instrumentalism is absent from this reasoning. It is not that Morgenthau would be a staunch anti-instrumentalist (though he can be seen as a formalist).41 Rather, instrumentalism seems to make no sense at all in this context: if international law is irrelevant, how can it be a worthy intellectual project to attempt its reform in order to achieve certain goals or, by the same token, to criticize those who do so? International L&E shares much of the same epiphenomenological view of international law. For Posner and Goldsmith, for example, ‘international law is a real phenomenon, but international law scholars exaggerate its power and significance’.42 If it is complied with at all, they say, it is not because ‘states have internalized international law, or have a habit of complying with it, or are

34. H. Morgenthau, Politics Among Nations: The Struggle for Power and Peace (Knopf: New York 1985 [1948]) at 295. 35. M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge University Press, 2006 [1989]) at 168. 36. H. Morgenthau, Dilemmas of Politics (University of Chicago Press, 1958) at 275. 37. Ibid., at 281. 38. H. Morgenthau, In Defense of National Interest (University Press of America: Washington D.C., 1982 [1951]) at 144. 39. H. Morgenthau, ‘Positivism, Functionalism and International Law’, 34 American Journal of International Law (1940) 260-284. 40. I take this expression from B. Kingsbury, ‘The Concept of Compliance as a Function of Competing Conceptions of International Law’, 19 Michigan Journal of International Law (1998) 345-372 at 350. 41. See B.S Chimni, International Law and World Order: A Critique of Contemporary Approaches (Sage Publications: New Delhi, 1993). Koskenniemi in turn prefers to term him ‘legalist’. See Koskenniemi, supra note 35, at 198. 42. J. Goldsmith and E. Posner, The Limits of International Law, supra note 18, at 255.

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drawn by its moral pull, but simply [because] states act out of self-interest’.43 It is enlightening to compare this approach to traditional L&E. At the end of the day, L&E has to give up its instrumentalism if it wants to go international. Would this mean that there is no normative agenda in international L&E? Hardly so. In a strict sense, there is no international equivalent to arguing that norm X should be designed in a certain way, because it is more efficient that way. The international equivalent argument (that, say, treaty Z should be designed in a certain way, because it is more efficient that way) always falls in the bottomless pit of international law’s relative irrelevance. And still, there are two ways in which there is indeed a normative agenda for international L&E: first, it leads to a normative argument for international deregulation - after all, if international law is irrelevant, why bother at all with it? The consequence of this move is that powerful States end up with a rational explanation for forfeiting their international legal obligations.44 Secondly, IL&E could lead one to argue that States not only have a right to consider primarily their self-interest, but actually have a duty to do so.45 Think of the discussion of international democratic governance,46 which could be read as a duty of liberal democracies to act solely based on their self-interest (understood as spreading their liberaldemocratic values). Paradoxically, this move leaves international L&E without its cousin’s most appealing aspect: its claim to expertise and technocratic neutrality. Traditional L&E is able to argue (however controversially) that Pareto or Kaldor–Hicks are objective criteria for measuring the efficiency of law, and that redistribution should be left out of the reasoning as it is, by definition, ‘political’.47 International L&E, on the other hand and in a manner parallel to IR realists, promises only politics. It is as if International L&E scholars would say: ‘Look at what we have: law that is irrelevant, and states that are powerful. The only way forward is to go beyond legalism and focus on structural conflict – for which purpose economics certainly comes handy, not as a pure technical craft but (and just as it came handy

43. Ibid. 44. In the same sense, see A. van Aaken, ‘To Do Away with International Law? Supra note 22, at 307. 45. I take this argument from P. Danchin, ‘Beyond Rationalism and Instrumentalism: The Case for Rethinking International Law and Organization’, 28 SAIS Review (2008) 79-100 at 86 46. For a good summary, see S. Marks, The Riddle of All Constitutions: International Law, Democracy and the Critique of Ideology (Oxford University Press, 2003) at 114. 47. The classic statement of the division between redistribution and efficiency in traditional L&E may be found in R. Posner, supra note 28, at 11. In turn, the standard critique of such division can be found in: D. Kennedy, ‘Law and Economics from the Perspective of Critical Legal Studies’, in P. Newman (ed.), The New Palgrave Dictionary of Economics and the Law (Palgrave Macmillan: London, 1998) 465-474.

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to post-realist American international lawyers48) to understand the real stakes of politics in international relations’.

2.2. L&E’s Extreme Makeover Two: Homo Economicus Let us now turn to the second extreme makeover suffered by domestic L&E in its international transformation: its conception of the individual. The central premise behind the economic analysis of the law is that (a) individuals are the fundamental unit of analysis; and (b) said individuals act ‘rationally’, that is, they ‘have transitive preferences and seek to maximize the utility that they derive from those preferences, subject to various constraints’.49 This idea is not a creation of the L&E movement,50 but is taken from neoclassical economics.51 Thus, radiating from its neoclassical source, the rational choice approach has come to dominate the last fifty years of mainstream economic teaching52 – until the relatively recent wave of behavioural economics which, being the ‘new new thing’ in economics, is waiting to make its jump to the mainstream L&E arena.53 Now: rational choice is a model of human decision-making. It is not intended to be a hypothesis, a statement verifiable through empirical data. Sometimes, staunch critics of L&E seem to forget that. Not that they are wrong in being critical, but targeting rational choice for being ‘unreal’ or ‘too abstract’ is simply missing the point, and ends up beating a straw man. In fact, homo economicus is supposed to be abstract – it is, after all, a model. In that sense, the debate on rational choice is similar to the one surrounding theories of older date, such as John Stuart Mill’s. For Mill, political economy: 48. See M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870 – 1960 (Cambridge University Press, 2001) at 474. 49. T. Ullen, ‘Rational Choice Theory in Law and Economics” in B. Bouckaert, and G. De Geest, (eds), Encyclopedia of Law and Economics, Volume I. The History and Methodology of Law and Economics (Edward Elgar Publishing: Cheltenham, 2000) 790-818 at 792. 50. See R. Cooter and T. Ullen, Law and Economics (3rd edn, Addison Wesley: New York, 2000) at 16. 51. According to Duncan Kennedy, neoclassical economists replaced the idea of ‘freedom’ (fundamental for ‘Classical’ economists) with the notion of ‘maximizing behavior’. The Moderns, he explains, ‘understand economic activity in terms of supply and demand schedules built upon the premise of ‘maximizing behavior,’ rather than in terms of free choice. Maximizing behavior and the declining marginal utility of successive increments of a commodity are concepts carefully designed to evade metaphysical issues about free will and autonomy’. See D. Kennedy, ‘The Role of Law in Economic Thought: Essays on the Fetishism of Commodities’, 34 American University Law Review (1985) 939-1001 at 960. 52. For example, the first contact of thousands of undergraduate students with economics is Greg Mankiw’s ten principles of economics, the first four of which put forward the theory of individual action underlying rational choice theory. See N. G Mankiw, Principles of Economics (5th edn, South-Western College Publishers: Cincinnati, 2008) at 3. 53. See for example C. Sunstein (ed.), Behavioral Law and Economics (Cambridge University Press, 2000) at 1.

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does not treat of the whole of man’s nature as modified by the social state, nor of the whole conduct of man in society. It is concerned with him solely as a being who desires to possess wealth, and who is capable of judging the comparative efficacy of means for obtaining that end … .54

This view was then attacked by Mill’s historic critics, who saw that this abstraction failed to describe reality in an appropriate way, and called it (pejoratively) the ‘Economic Man’ – homo economicus.55 To be sure Mill’s abstraction was not as simple: man is not a mere money machine, but strives also for luxury, leisure and, of course, producing babies, according to Mill’s ‘principle of population’.56 And yet, Mill’s abstraction was not as complex either: it sought not to describe reality, but to present a plausible model of human interests.57 While Mill’s man is not a theory of decision making (and is hence not an ‘older’ or ‘original’ version of rational choice),58 there are some lessons that can be learned here for our discussion of rational choice. The premise behind L&E is not that rent-seeking is man’s only (or best) motivation. Rather, it tries to apply a model of decision making (rational choice) to non–market situations, in order to describe and predict the consequences of this kind of process. As it turns out, a lot can be described and predicted by using this methodology – hence, L&E immense success. Rational choice, then, is a tool to understand a certain area of social life – for example, in the case that concerns us here, legal norms. This is the source of both L&E’s potential and shortcomings. Think of a man whose only tool is a hammer. Let’s presume his intellectual good faith: he is not saying that saws are bad, or that screwdrivers are unnecessary – he is, as it were, not a hammer advocate. He is just a man with a hammer, and when a nail comes about, you would want him in your team. The problem is, as the saying goes, for a man with a hammer, 54. J. S. Mill, ‘On the Definition of Political Economy; and on the Method of Investigation Proper to It’, in J.S Mill, Essays on some unsettled Questions of Political Economy (Kessinger Publishing LLC: Whitefish MT, 2004 [1844]) 99-131. 55. See J. Persky, ‘The Ethology of Homo Economicus’, 9 Journal of Economic Perspectives (1995) 221-231 at 222. In contemporary economics, the ‘reality argument’ has been stated most strongly by Herbert Simon, who argued in the 1950’s that humans have a very limited ability to comprehend all the alternatives available in a single decision. We are bound, therefore, to rely on ‘tricks’, such as heuristics or rules of thumb, in order to make choices. These tricks are determined by our context. As a consequence, our rationality is not free, as it were, but rather bound to our given context. See H. A. Simon, ‘A Behavioral Model of Rational Choice’, 69 Quarterly Journal of Economics (1955) 99-128. For a readable introduction of bounded rationality and other critiques of homo economicus, see: A. Rubinstein, Modeling Bounded Rationality (The MIT Press: Cambridge, 1997) at 7. 56. Persky, Ibid., at 223. 57. Ibid., at 224. 58. In this sense, Mill seemed more interested in understanding economics as an elaboration of the Ricardian paradigm, and not as much as the ‘science of decision’ that appeared with the Neoclassics. See I. Kirzner, The Economic Point of View: An Essay in the History of Economic Thought (New York University Press, 1976 [1960]) at 7.5.

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everything looks like a nail. And this, it would seem, is also the problem with L&E. For a scholar with rational choice goggles, everything looks like a utility maximizing move. The problem with rational choice is not that it unduly simplifies social interactions, or that it deems as impossible or irrelevant other kind of motivations.59 The problem is that the premise of observation transforms the reality we choose to observe. Morgenthau, as we now turn to see, was keenly aware of this problem. Traditional L&E features a rational choice approach to the analysis of law, as it presumes that individuals act based on their self–interest; that is, they act rationally. Realism and international L&E share such approach, as they both consider that States act solely motivated on their own self–interest regardless of what international law has to say. The move from domestic to international L&E, though, requires that this premise be adapted. As rational choice goes international, the default unit of analysis is replaced: focus on the individual turns upon the State and, in a move that would blow Hayek’s mind, methodological individualism becomes ‘methodological statism’.60 This move begs the question: in what sense can we significantly say that a collective entity (like the state) is ‘rational’? For one, it is perfectly clear that rational individuals are able to behave irrationally as a group. And beyond that, Kenneth Arrow has powerfully shown that it is impossible to aggregate individual rational preferences in a way that the resulting group is itself rational – this is Arrow’s groundbreaking impossibility theorem.61 This line of critique, though, would lead us to conclude that the State is not (and can never be) a useful unit for a rational choice analysis of international relations. International L&E scholars like Posner & Co. are quite aware of such critique, and respond to it by shifting the burden from L&E to classical international law. As is well known, the standard account of the matter in classic international law will have individuals as ‘objects’ (rather than ‘subjects’) of law.62 Consequently, the reason why Posner and Goldsmith focus on the state (and not individuals) is because international lawyers focus on the state.63 If they are to critique international law – well, let’s just say they do as Romans do. 59. For an example of the latter critique, see P.J. Zak, Moral Markets: The Critical Role Of Values In The Economy (Princeton University Press, 2008). 60. For the first English use of the expression ‘methodological individualism’, see J. Schumpeter, ‘On the Concept of Social Value’, 23 Quarterly Journal of Economics (1909) 213-222. Posterior evolution can be followed in L. Udehn, Methodological Individualism (Routledge: New York, 2001). 61. Ironically, Arrow actually called his a ‘General Possibility Theorem’, which however became known as an ‘impossibility’ theorem in popular literature. The first presentation of the theorem can be found in: K. Arrow, Social Choice and Individual Values (Yale University Press, 1970 [1951]). 62. See, for example, A. Aust, Handbook of International Law (Cambridge University Press, 2005) at 13. 63. Goldsmith and Posner, The Limits of International Law, supra note 18, at 5; the same argument is repeated at 186.

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This is a standard problem of interdisciplinarity. As Klabbers has argued, interdisciplinary often leads to the adoption of the most simplified version of the adjacent discipline.64 International law is a particularly dramatic example, as it is international lawyers’ fault that adjacent disciplines (such as IR) take international law as a ‘right answer game’,65 with states as the main character. International L&E scholars, such as Posner and Goldsmith, end up doing just that: they take the most simplified, acritical version of international law, and then apply rational choice theory to it. Ironically, international L&E is not about an international homo economicus. In fact, international L&E is notably silent about the topic: for example, while behavioural economics seems to start shaking the foundations of traditional L&E, it is but a footnote in international L&E. For Posner and Goldsmith, ‘such a theory might well result in a more refined understanding of international law and relations. But it might not; individual cognitive errors might have few if any macro effects on international relations’.66 At the end, the overwhelming statist inclination of IL&E says more about its simplistic understanding of international law, than about its understanding of human nature and motivations. For international L&E, there seems to be an essential gap between human agency and state behaviour. Morgenthau would have had none of this. His first principle of political realism declares that ‘politics, like society in general, is governed by objective laws that have their root in human nature’, which ‘has not changed since the classical philosophies of China, India, and Greece’.67 What Morgenthau proposes is a fundamental link between the unchanging aspects of human nature and international relations, which define the role played by international law within the latter. For Morgenthau everything is connected to human agency: it all boils down to the nature of human beings. Now: despite efforts to recruit him for the international L&E team,68 Morgenthau’s approach to human nature was not rational choice 64. See J. Klabbers, ‘The Relative Autonomy of International Law or The Forgotten Politics of Interdisciplinary’, 1 Journal of International Law & International Relations (2004/2005) 35- 48 at 36. 65. See J. Klabbers, ‘The Bridge Crack’d: A Critical Look at Interdisciplinary Relations’, 23 International Relations (2009) 119-125 at 121. 66. J. Goldsmith and E. Posner, The Limits of International Law, supra note 18, at 8, but see A. van Aaken, ‘Towards Behavioral International Law and Economics: A Comment on “Enriching Rational Choice Institutionalism for the Study of International Law’”, 1 University of Illinois Law Review (2008) 47-59 at 57. 67. H. Morgenthau, Politics Among Nations, supra note 34, at 4. The deep link between human nature and international relations is present since early in his writings. For example, in La Notion du ‘Politique’ et la Théorie des Différends Internationaux (1933), Morgenthau held that ‘le constations que nos avons pu faire dans le domaine de la vie humaine en général trouvent leur verification dans le domaine de la vie des Etats’ (at 61) Quoted by M. Koskenniemi, The Gentle Civilizer, supra note 48, at 450. 68. See, for example, A.L Paulus, ‘Potential and Limits’, supra note 18.

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theory. He did not accept that preferences were exogenous to rationality; but rather, that it was through rationality that preferences were chosen.69 Moreover, rationality for Morgenthau was but one of the sources of human behaviour, in addition to interests and emotions (or, in his words, ‘spirit’ and ‘biology’).70 Homo economicus, therefore, hardly fits Morgenthau’s notion of the individual. His view is psychological in essence, a mindset with which Morgenthau was well acquainted, as is evidenced by the principle of desire (Lustprincip) - featured, according to Koskenniemi, in his unpublished manuscript ‘On the Derivation of the Political from Human Nature’.71 To be sure, rationality was not irrelevant for Morgenthau. The point is that homo economicus gives rationality both too much and too little credit: on one hand, it considers that the only motivation of action is rationality, where Morgenthau considers that other sources of motivation (and, most importantly, the quest for power) are of importance. But, at the same time, homo economicus is wholly irrational in what concerns its preferences; in contrast, Morgenthau argues that rationality leads preferences, and may nonetheless fail in its task: ‘Irrational impulses, interests and emotions, may become so powerful that they refuse to be led by reason … thus, passion shakes off the control of reason and man becomes a predominantly irrational being’.72 This characterization of human motivations leads to the conclusion that all objective rationalization in international relations is but rear-view mirror politics. Ultimately, transparency of the self is but a myth. For Morgenthau: To search for the value to foreign policy exclusively in the motives of statesmen is both futile and deceptive. It is futile because motives are the most illusive of psychological data, distorted as they are, frequently beyond recognition, by the interests and the emotions of the actor and observer alike. Do we really know what our own motives are? And what do we know of the motives of others?73

Morgenthau is right: we really know nothing. And this means that reading historical events as a process of rational decision making presumes a transparency of the self to which we have no access to. Quite on the contrary, as we rationalize, we end up looking for causal relations in random events, and finding necessary connections in serendipity.74 This situation seriously undermines our ability to 69. Morgenthau, Scientific Man versus Power Politics (University of Chicago Press, 1965 [1946]) at 158. See also: Williams, The Realist Tradition, supra note 23, at 194. 70. Morgenthau, Scientific Man, supra note 69, at 211. 71. H. Morgenthau, ‘Über die Herkunft des Politischen aus dem Wesen des Menschen’ (Morgenthau Archive, Library of Congress, HJM-B-151). Retrieved and quoted by M. Koskenniemi, The Gentle Civilizer, supra note 48, at 448. 72. Morgenthau, Scientific Man, supra note 69, at 156. 73. Morgenthau, Politics among Nations, supra note 34, at 6. 74. Morgenthau, Scientific Man, supra note 69, at 149-152. I have explored the radical uncertainties of causation in: R. Uruena, ‘Risk and Randomness in International Legal Argumentation’, 21 Leiden Journal of International Law (2008) 787-822.

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apprehend reality in international relations. In a time when a new wave of international law scholars devotes energy and resources to empirical work in an effort to enhance our understanding of reality,75 Morgenthau’s lesson is that our grasp of reality is limited by our perspective, and that faith in the truth-establishing value of empirical research may be misplaced.76

3. The Individual in International Law Realism deeply influenced international lawyers, turning some of them into rule–sceptics, participants of the game in as much as a social goal was in play.77 Morgenthau’s complex view of the individual, though, did not migrate to international law in such a successful way. While mainstream international law integrated realism’s powerful critiques, it did not see necessary that the fundamental premise of Morgenthau’s approach (the link between human nature and international relations) should find an international legal expression. The standard account of the individual in international law is built around the object/subject dichotomy, and features a narrative of progress from one to the other. Once upon a time, the story goes, the individual was a mere object of international law.78 However, after World War II and the horrors of the Holocaust, the individual became a subject of international – mainly through international human rights law, but also through other instruments.79 To be sure, some scholarship questioned such a matrix of understanding. Rosalyn Higgins, for example, strongly argued that the object/subject dichotomy was a dead-end. Individuals should be understood as participants of international law, just as governments and international organizations.80 This idea, deeply rooted in the New Haven School, never got as

75. For an introduction of the so - called ‘Empirical Legal Studies’ (ELS) in international law, see S.D Franck, ‘Empiricism and International Law: Insights for Investment Treaty Dispute Resolution’, 48 Virginia Journal of International Law (2008) 767-815. 76. Morgenthau, Scientific Man, supra note 69, at 141-145 and 162-167; Morgenthau, Science: Servant or Master? (New American Library: New York, 1972) at 99; Williams, The Realist Tradition, supra note 23, at 101. 77. See Koskenniemi, From Apology to Utopia, supra note 35, at 475. 78. See, for example, G. Manner, ‘The Object Theory of the Individual in International Law’, 46 American Journal of International Law (1952) 428-449. 79. See, for example, E. Tucker, ‘Has the Individual Become the Subject of International Law?’, 34 University of Cincinnati Law Review (1965) 341-366. There are, however, interesting approaches prior to WWII that argued for a subject – like treatment of individuals under international law. See, for example, P. M. Brown, ‘The Individual and International Law’, 18 American Journal of International Law (1924) 533-536. 80. R. Higgins, ‘Conceptual Thinking About the Individual in International Law’, 4 British Journal of International Studies (1978) 1-19.

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much wind as it deserved. The object/subject dichotomy kept its ground, and is the default approach to be found today.81 The cornerstone of this narrative of progress is international human right law (HRL). It works as such by contributing three fundamental elements to the notion of the individual in international law: (a) the basic unit of analysis is the individual; (b) the individual exists outside law (that is, it is a ‘fact’ of nature and has inherent value); however, (c) it is only through the intervention of international law that such a inherent value is recognized, and this natural entity stops being an ‘object’ and becomes a ‘subject’. In what follows, I shall shortly consider each of these points

3.1. The Methodological Individualism of Human Rights Law Human rights law is based on the idea that individuals are the fundamental unit of analysis. According to the traditional view of the matter, civil, political, social and economic rights are recognized to individuals, and only in the alternative to ‘groups’ or ‘collectivities’.82 This idea is often presented through a foreground/background move, whereby collective rights constitute the necessary background that makes the exercise of individual human rights possible.83 Here is, for example, the Human Rights Committee commenting on the Right of Self-determination: The right of self-determination is of particular importance because its realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights. It is for that reason that States set forth the right of self-determination in a provision of positive law in both Covenants and placed this provision as article 1 apart from and before all of the other rights in the two Covenants.84

To be sure, given the liberal origins of HRL, this preponderance of the individual is hardly surprising.85 And neither did it go unnoticed by the Marxist critique of human rights, according to which ‘the so-called rights of man, human rights versus the rights of citizens, are nothing other than the rights of member

81. See, M. Shaw, International Law, (6th edn, Cambridge University Press, 2009) at 257. 82. See Shaw, International Law, supra note 81, at 281 and 289. 83. On foreground/background rules, see R.L Hale, ‘Coercion and Distribution in a Supposedly Non Coercive State’, 38 Political Science Quarterly (1923) 470-478. 84. UN Human Rights Committee (HRC), CCPR General Comment No. 12: Article 1 (Right to Self-determination), The Right to Self-determination of Peoples, 13 March 1984, available at (visited 14 February 2010). 85. See generally, L. Hunt, Inventing Human Rights: A History (W. W. Norton & Company, 2007); for a different view on the same matter, since Grotius, see R. Tuck, Natural Rights Theories: Their Origins and Development (Cambridge University Press, 1998 [1979]) at 156.

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of bourgeois society, that is to say selfish man, man separated from man and the community’.86

3.2. The Individual of Human Rights Law HRL understands the individual as an abstract, pre-legal entity, that international law simply recognizes but does not create in a strict sense. Law, in that sense, provides but a ‘thin’ justification of human rights: the ‘thick’ rationale is indeed moral, a fact that seemed clear at least since 1948 and the UN Universal Declaration of Human Rights.87 Think of the moral notion of the individual underlying HRL, and you shall find the idea of the individual that informs international law. The moral notion of the individual underlying HRL can be usefully understood in reference to the matrix of human agency. On one hand, there is the view according to which human agency is the necessary correlation of rights; that is, (human) rights exist because they allow the rights-bearer to achieve her vision of the good. This is Hart’s ‘choice – theory’ of natural rights.88 Rights exist only inasmuch as they presuppose the only natural right: the right to liberty.89 Others reject such view, and argue that human rights derive from human dignity; that is, human rights exist inasmuch as they guarantee a basic threshold of dignity for the human being. I think Raz or MacCormick can be understood thus.90 Human rights have nothing to do with human agency; instead, ‘an individual is capable of having rights if and only if either his well-being is of ultimate value or he is an ‘artificial person’ (e.g. a corporation)’.91 And what, one may ask, constitutes the well-being of the individual, in order to have rights recognized? The criteria for answering that question is not clear, and is ultimately imposed by the a third party, different from the individual concerned. It would clearly involve physical integrity; but does it include, say, food – so we could create a human right to food? Or water? It is hard to know. HRL is in tune with the latter, and not the former, rationale for human rights. Dignity is overwhelmingly present in human rights law; from the Preamble of the 1948 UN Universal Declaration of Human Rights to the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights; all provide that human rights derive from the inherent 86. See K. Marx, On the Jewish Question (IndyPublish, 2007 [1844]) at 109. 87. See, for example, L. Henkin, ‘International Human Rights as “Rights”’, in J.R Pennock and J.W Chapman, (eds) Human Rights (New York University Press, 1981) 257-280 at 269. 88. H.L.A Hart, ‘Are There Any Natural Rights?’, 64 Philosophical Review (1955) 175-191. 89. Ibid. 90. See J. Raz, The Morality of Freedom (Oxford University Press, 1986) at 166; for a similar argument, see N. MacCormick, ‘Children’s Rights: a Test-Case for Theories of Rights’, in N MacCormick (ed.) Legal Right and Social Democracy: Essays in Legal and Political Philosophy (Oxford University Press, 1982) 154-166. 91. J. Raz, The Morality of Freedom, supra note 90, at 166.

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dignity of the human person.92 Tensions with the choice-theory of human rights are apparent: for example, dignity is often invoked not to guarantee the fundamental right to liberty, but to restrict (perhaps reasonably) individual freedoms. Consider the ‘right to die’93 or the debate on free speech and pornography.94 They both feature a given freedom (the liberty to dispose of one’s life, in one case, and freedom of speech, in the other) that is arguably restricted by human dignity. Or consider whether dignity can be waived by the concerned individual. For the German Constitutional Court, the answer is fairly straightforward: ‘human dignity means not only the individual dignity of the person but the dignity of man as a species. Dignity is therefore not at the disposal of the individual’.95And yet, it would appear that the matter deserves more debate for, as Kretzmer and Klein rightly put it, ‘[w]hile the concept of human dignity now plays a central role in the law of human rights, there is surprisingly little agreement on what the concept actually means’.96 As may be seen, the whole point of human rights is not human agency, but the protection of the individual. It is in that context that one finds a new dimension to what David Kennedy said years ago: human rights generalize too much, because ‘to come into understanding of oneself as an instance of a pre-existing general – “I am a ‘person with rights’” – exacts a cost, a loss of awareness of the unprecedented and plastic nature of experience, or a loss of a capacity to imagine and desire alternative futures. We could term this “alienation”’.97 This ‘plastic nature experience’ is defined by human agency: it is the way we experience life and our surroundings actively, and not as mere spectators. This perspective is lost in HRL: the individual here is a passive, helpless, entity that requires protection, an individual in need for a mediator between her and the world.

92. For a wonderful map of the different uses of dignity in international, regional and domestic setting, see C. McCrudden, ‘Human Dignity and Judicial Interpretation of Human Rights’, 19 European Journal of International Law (2008) 655-724. 93. For a useful discussion see generally R. Dworkin, Life’s Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom (Vintage: New York, 1994). 94. See generally C. MacKinnon, Only Words (Harper Collins Publishers, 1993); for a more specific formulation regarding dignity see C. MacKinnon, ‘Are Women Human?’, in B. van der Heijden & B. Tahzib-Lie (eds) Reflections on the Universal Declaration of Human Rights (Springer, 1998) 171-172. 95. Quoted in: E. Klein, ‘Human Dignity in German Law’, in D. Kretzmer and E. Klein, The Concept of Human Dignity in Human Rights Discourse (Springer: Dordrecht, 2002) 145-160 at 148. 96. D. Kretzmer and E. Klein ‘Foreword’, in D. Kretzmer and E. Klein, The Concept of Human Dignity in Human Rights Discourse (Springer, 2002). 97. D. Kennedy, ‘The International Human Rights Movement: Part of the Problem?’, 15 Harvard Human Rights Journal (2002) 101-125 at 111.

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3.3. Human Rights Instrumentalism This opens for the third defining aspect of the individual in HRL. The mediator that is needed appears in the form of international law. It is through the agency of international law, and not through that of the individual, that ‘dignity’ becomes rights. The moral notion of dignity underlying HRL becomes relevant in the moment that international law recognizes it as legitimate. Though the rhetoric of HRL is that dignity justifying human rights is pre-legal, it is only when law intervenes that ‘dignity’ becomes of importance. HRL is, in this way, a constitutive force that denies its constituent power. HRL’s constitutive move has two different moments. One is the HRL’s emphasis in legal standing and individual international responsibility for human rights violations. In this context the zenith of human dignity is the locus standi of individuals before an international human rights tribunal,98 and the possibility of finding individuals responsible for human rights violations.99 Such is, not wanting to make too much of this label, the ‘procedural’ aspect of the constitution of the individual by HRL. The second aspect is the substantive definition of the rights that characterize human dignity. As we have seen, dignity is rather hard to define, and defining human rights that derive therefrom is not an easy task either. Moreover, this definition depends not on the individual’s agency, but requires a mediator. That mediator is international law but, as the ‘legal system’ does not exist in a vacuum, we need to turn to human rights institutions to do the job – mainly, human rights tribunals or judicial-like institutions. It is in human rights tribunals that the ‘substantive’ aspect of the constitution of the individual by HRL occurs. The substantive and procedural aspects of this process are intimately connected. We invest human rights tribunal with the power to ultimately define human rights, because we are ‘rights – instrumentalists’; that is, we believe that such an institutional and procedural layout is most likely to answer correctly to the question: what rights do we have?.100 But this move entails an important problem, as Waldron has noted.101 If we begin (as we do) by stating that there is disagreement on what human rights are, how can we design an institutional and procedural layout that will be instrumental to protect them? The answer is: we cannot. Individual agency is unconnected to human rights, and we therefore 98. See for example C. Tomuschat, ‘Individual Reparation Claims in Instances of Grave Human Rights Violations: The Position Under General International Law’, in C. Tomuschat (ed.) State Responsibility and the Individual: Reparation in Instances of Grave Violations of Human Rights (Springer, 1999) 1-25. 99. For a great comprehensive accounts see S.R Ratner and J.S Abrams, Accountability For Human Rights Atrocities in International Law: Beyond The Nuremberg Legacy (3rd edn, Oxford University Press, 2009). 100. J. Waldron, Law and Disagreement (Oxford University Press, 1999) at 300. 101. Ibid., at 301.

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depend on institutions to define human rights’ content. But the design of such institutions presupposes that we know what we want from them: we trust the Inter American Court of Human Rights and not, say, the General Assembly of the Organization of American States, because we believe that the procedural and institutional layout of the Court is somehow more conducive to the goal of telling us what human rights are. But, to design such a Court, we need an idea of what human rights are to begin with.

4. HRL, the Individual and Expertise This dynamics is intimately linked to the challenge of managerialism. As we have seen, the global governance mindset follows a results logic; a rationale of ideas implemented by any means necessary. And this mindset, as Koskenniemi has pointed out, ‘recognizes no independent compliance pull for the pure form of the law. After all, international law is just a set of diplomatic compromises made under dubious objectives. We use it if leads into valuable purposes. And if it does not lead us into those purposes - well - then that is all the worse for the law’.102 That is, we trust HRL to define the substantive aspect of our notion of the individual. But, in effect, HRL has no clear answer for this question. It is in the context of human rights institutions that such an answer is found - human rights institutions are the ultimate instance of definition. HRL seems thus to be voided of independent legal arguments to address the matter of individual agency. It has very competently developed a complex set of tools that testifies to its irrelevance. When asked, HRL uses its most ingenious arguments to answer: ‘don’t ask me!’ It presents itself as evoking a romantic idea of times that where once simpler, and diagnoses itself with the need to be the passive subject of reform. It presents itself as an aging man who, in order to keep his relevance, needs to be insufflated with new ideas of this brave new world we live in. And the Zeitgeist holds precisely that the law is relevant only if it leads us into valuable purposes. If it does not, then the law should be forgotten. In order to keep its relevance, international law managed to shoot itself in the foot. This would be a footnote in just another history of international organizations law, were it not for the fact that human rights institutions seem to embody hope: they empower the powerless and are the voice of the voiceless. And this is so because, as Rajagopal has forcefully shown in his International Law from Below, human rights may very well amount to the sole approved discourse of resistance.103 Structuring the discussion in HRL terms entails bringing that discourse’s limitations to the general perception of the role of international law in 102. Koskenniemi, ‘Global Governance and Public International Law’, supra note 14. 103. See B. Rajagopal, International Law From Below: Development, Social Movements and Third World Resistance (Cambridge University Press, 2003) at 165

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global governance. If human rights are all the law can contribute, then whatever argument one can advance with regards to human rights, is an argument that concerns international law and its relevance. How does human rights discourse contribute to international law’s irrelevance? In this point, it seems useful to start off from a pragmatic view of human rights critique.104 For this purpose, I will specifically avoid discussing whether there is actually something ‘out there’ that is universally good and intrinsically moral that can be called ‘human rights’. It is important to state this limitation, because it refers to an argument that can be presented against the point I am about to make. My argument will be based on the bureaucratization of human rights discourse, and one can always argue that a bureaucrat does not see what human rights ‘really’ are – that the bureaucrat is missing out on seeing what dignity really is. If one believes that human rights are really ‘out there’, an object in nature to be observed, then the discussion becomes of how clearly we see that object (a matter of accuracy), and not how we interpret it. This discussion is beyond my point for, as Morgenthau has argued and which was presented previously in this section, this kind of perception of reality is filled with logical problems. Our perception of reality in international relations is hopelessly flawed. Therefore, for advancing my argument, I assume that human rights are whatever is understood as human rights.105 It is generally accepted that human rights emanate, by definition, from politics.106 However, the way in which they attempt to drift apart from politics (or become their prisoner) has been a recurrent subject of international legal scholarship.107 Common among these approaches, is the idea that human rights law 104. On a pragmatic approach to human rights, see D. Kennedy, ‘The International Human Rights Movement’, supra note 97. 105. This approach has been accused of being, at least, (a) inherently conservative; and (b) a strategy for a ‘culture of contentment’, whereby discussion on the true nature of HR is regarded as closed, so the status quo is accepted as natural. Undeniably, this methodological charge is valid, but it does not affect the structure of my argument. Indeed, my argument’s starting point is practical human rights adjudication, and I present its consequences (bureaucracy, etc.). What human rights actually are (whether they are, inter alia, deity revealed canons or cunningly devised western imperialist pawns) changes not the fact that actual adjudication is still carried on in the same (bureaucratic) way, which composes the subject matter of my reasoning. In any case, for criticism on my limiting strategy, see T. Evans, ‘Universal Human Rights: As Much Round and Round as Ever Forward’, 7 International Journal of Human Rights (2003) 155-168; also: S. Gill, ‘Market Civilization and Disciplinary Neoliberalism’, 24 Millennium Journal of International Studies (1995) 399-423. 106. Any standard text of HRL is willing to admit that human rights are the product of a political struggle. See for example C. Ovey and R. C.A White, Jacobs & White, The European Convention on Human Rights (Oxford University Press, 2006) at 1. How political they are as legal instruments is a different matter altogether. 107. For instance, see D. Kennedy, ‘Human Rights Movement’, supra note 97. See also: J. Petman, ‘Human Rights, Democracy and the Left’, 2 Unbound: Harvard Journal of the Legal Left

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inexorably defers to politics, and that this is done through various mechanisms which, nonetheless, are presented as legally sound and politically neutral.108 My interest in the constant deferral to politics lies in the bureaucratization of definition of the individual this move entails. Specifically, I propose that the particular ways through which this deferral move is performed have empowered a well-defined international bureaucracy in the definition of the individual, whose identity is then only understood through this filter – in spite of human agency. Let us begin with the deferral premise. As hinted, this point has been presented in numerous ways by human rights scholars. The idea, in essence, is that universality of human rights might be a plausible idea at an abstract level but, when applied to concrete cases, human rights law is far from presenting predicable and unequivocal outcomes. And this is so, because politics is present in every step of human rights practice, from the election of rights themselves to the definition of their exceptions, from construction of their indeterminate language to the pondering of conflicting rights. Evidently, this idea undermines the understanding of human rights as a politically neutral argumentative devise, thus making HRL a target to the same critique that other allegedly neutral areas of law have been subjected to.109 The practical consequence of this continuous deferral is a specific distribution of power in the definition of the individual. If, for all practical purposes, human rights institutions define what the individual is, and their work is necessarily completed through politics, then those who interpret and adjudicate in human rights also hold the keys to the substantiative definition of what an individual is, and the relevance of his or her agency. This conclusion should not be understood as a critique of any given institutional (2006) 63-90; M. Koskenniemi, ‘Human Rights, Politics and Love’, 4 Mennesker & Rettigheder (2001) 33-45. This idea is not restricted to international critical legal scholarship; for example, Canadian MP, historian and IR scholar Michael Ignatieff held this idea in his 2000 Princeton Tanner Lecture on Human Values, M. Ignatieff, Human Rights as Politics and Idolatry (Princeton University Press, 2003) The interesting part, which gives a good example of the point I am advancing, is that although presenting a similar position to that of e.g. Petman, Kennedy and Koskenniemi concerning the interaction between HR and politics, Ignatieff submits that the politics of human rights should be that of a ’esser – evil approach’; namely, ‘When democracies fight terrorism, they are defending the proposition that their political life should be free of violence. But defeating terror requires violence’. However, the possibility of ‘filling’ HR with whatever politics we find appropriate in order to define the individual is the central part of international law’s downfall. On Ignatieff’s lesser evil approach, see M. Ignatieff, The Lesser Evil: Political Ethics in an Age of Terror (Princeton University Press, 2004). 108. Koskenniemi identifies such mechanisms as field constitution, indeterminacy, exceptions and opposing right claims (Koskennimi, ‘Human Rights and Love’, supra note 107, at 35-37) Kennedy, in turn, observes that human rights express a very concrete sensibility which, however, stays in the background, being explicit itself (see Kennedy, ‘Human Rights Movement’, supra note 97, at 114). 109. For example, D. Kennedy, ‘The Political Stakes in “Merely Technical” Issues of Contract Law’ 1 European Review of Private Law (2001) 7-28.

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arrangements. I do not wish to imply the idea of a struggle between a ‘law’ (as applied by, for example, judges) that is losing ground to ‘politics’ (as applied by, for example, presidents). My point is that when we understand that HRL is the main prism through which we understand what a human being is, and we also understand human rights as being inherently political, then we understand that HRL adjudication is, by definition, a political exercise – which in turn defines deeply who we are. And this political exercise is, quite logically, an act whereby power is exercised. The practical question, then, is not what human rights are, but who has been bestowed to exercise the political power implicit in the deferral move. Who are those that have been given the power to tell who we are? I submit that bureaucracy has been empowered through this move, as I will explicate in the following sections. Bureaucratization is linked to Weber’s idea of rationalization in modern societies, the former being a symptom of the latter. Unlike current political commentators, Weber did not consider bureaucracy as inefficient; quite on the contrary, bureaucracy is seen as the efficient way of administration.110 In this sense, my reference to bureaucratization is not a normative judgment of inefficiency in human rights administration, but a statement of the fact that human rights are administered through a bureaucracy;111 that is, the definition of the individual is performed through a structure that presents the characteristics Weber has identified in bureaucracies. Weber conceived an ideal type of bureaucracy, defined by (1) very strict competence (jurisdiction) distribution; (2) strong hierarchy; (3) management based in files or documents; (4) management at the office requires professional, expert training; (5) full time work of the officials and (6) the existence of rules, which are more or less comprehensive and may be learned.112 I propose 110. Indeed, concerning monocratic bureaucracy, Weber argues in Economy and Society that ‘from a purely technical point of view, a bureaucracy is capable of attaining the highest degree of efficiency, and is in this sense formally the most rational known means of exercising authority over human beings. It is superior to any other form in precision, in stability, in the stringency of its discipline, and in its reliability. It thus makes possible a particularly high degree of calculability of results for the heads of the organization and for those acting in relation to it. It is finally superior both in intensive efficiency and in the scope of its operations and is formally capable of application to all kinds of administrative tasks’ See M. Weber, Economy and Society (University of California Press, 1978) at 223. 111. The idea of a post-bureaucratic organization is present in contemporary sociology. It implies that some current organizational arrangements may not be convincingly described by Weber’s account of bureaucracy, as it focuses too narrowly in state organizations, or organization that have close contact with the state (such as political parties or big corporations). See H. M. Höpfl, ‘Post-bureaucracy and Weber’s “Modern” Bureaucrat’, 19 Journal of Organizational Change Management (2006) 8-21. This approach strikes me as overly pretentious: as argued, global governance actually reinforces Weberian bureaucracies. Even if the existence of strong hierarchical divisions in contemporary organizational arrangements is generally minimized, that move is hardly something different than a public relations strategy. 112. See M. Weber, Economy and Society, supra note 110, at 956.

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to focus on the expert/professional aspect of the bureaucrat, as it is through expertise that the deferral move in human rights empowers bureaucracies to establish the identity of the individual. Although intimately related, Weber’s account of professions has attracted much less attention than his ideas on bureaucracy; this due, perhaps, to the fact that the profession was not as neatly drawn through an ‘ideal type’, as bureaucracy was.113 The idea of professions and professionalism is pivotal to the Weberian construct of bureaucracy. Weber understood the relation between rationalization and professions as one of multi-causation: the professional, the ‘man of vocation’ (Berufmensch), was himself an example of Calvinist ascetism,114 and contributed to the rationalization of bureaucracies, which in turn contributed to the development of professions.115 The relation between professionals and bureaucracies is, thus, one of rationalization and its consequent predictability of outcomes. In this context, Weber takes a special interest in the legal profession, dedicating one section of the text that was posthumously published as Economy and Society to ‘The Role of Law Specialists’.116 Law specialists, according to Weber, play a definite role in shaping the legal system where they act. Specifically, in Weber’s account, their education as legal specialist has such an effect: professional legal specialists are formed, and a rational legal system is tailored only in specialized schools where law is taught through legal theory as ‘legal science’, and where ‘concepts’ are passed on to students.117 Ritzer argues that Weber went even further, and considered that legal professionals are the decisive factor in developing a rational legal system; that is, ‘where professionals are in a position to shape the development of law, that law is likely to be rationalized’.118 This impact should be then connected to the idea of bureaucracy presented above: if legal professionals are the determinant variable for rationalization of the law, then their role as experts is the door through which the law becomes subject to bureaucratic rationality. In

113. The following account is based on G. Ritzer, ‘Professionalization, Bureaucratization and Rationalization: The Views of Max Weber’, 53 Social Forces (1975) 627-634. 114. Weber, Economy and Society, supra note 110, at 543 and also at 1198. 115. Ibid., at 1164. 116. Ibid., at 775. 117. M. Weber, Economy and Society, supra note 110, at 80. Weber’s idea of legal professionals may overlap here with the understanding of legal professionals as the ‘voice’ of a Volksrecht in the German historical school of law. See F. Wieacker, A History of Private Law in Europe (Oxford University Press, 1996) at 279-300. For the role of this same approach in international law, See Koskenniemi, The Gentle Civilizer of Nations, supra note 48, at 42. However, the coincidences may stop there: whereas for the German historical school the professional’s task was to systematize a law that existed ‘out there’, among the Black Forest, the berries and the Volk, Weber’s account does not seem to imply that legal professionals are ‘translating’ something. They seem to be creating it. 118. Ritzer, supra note 113, at 629.

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other words, bureaucratization of adjudication implies legal professionalization, as it is the legal professionals who create a rational legal system.119 These ideas of legal professionalization and administration through bureaucracy seem to confirm concerns aired by contemporary scholars regarding bureaucratization of HRL. For some scholars, bureaucratization paradoxically entails the abandonment of the human rights agenda: it implies leaving to the perennial Kafkian desk clerk (and her inertial political agenda) matters that should be in hands of the vitally engaged young activist (and her progressive political agenda).120 I believe this approach fails to grasp the essential tension underlying the matter. The issue is not a question of progressive politics vs. bureaucrats. The issue is the exact effect those bureaucrats have in the law they are applying, and its relevance for a wider audience. And the issue is truly crucial: we are talking about the very definition of what a human being is. From Weber’s perspective, bureaucratization is a way of formalization that permits predictability. The role of legal professionals is to implement that predictability: hence the importance of teaching law as a series of concepts, which are then to be applied uniformly to specific factual circumstances. Bureaucratization of human rights, on the contrary, implies deformalization of the law. It is the consequence of a deferral move that, as we have seen, understands rights as essentially political, and then empowers bureaucracies that adjudicate within that framework. Bureaucracies are empowered to adjudicate in human rights precisely because they are ‘political’: they are flexible and are aware of their times. They are the instrument through which that middle aged man called international law keeps himself up to the times – defining in turn our identity as human beings. And yet, there is a clear contradiction between these two ways of understanding the effects of bureaucratization. Through the deferral move, human rights empower bureaucracies. Human rights bureaucracies are conformed, by definition, by professionals: mainly legal professionals. And, generally, legal professionals are pivotal for advancing formalization and predictability of the law. But legal professionals in human rights bureaucracies are expected to do the exact opposite: they are expected to advance a deformalization agenda, and to implement the idea 119. Against this conclusion, some accounts see professionalization as the antithesis of bureaucratization, due to the fact that, when a professional is employed in a bureaucracy, he is confronted with conflict due to the basic differences between these two normative systems. This idea, present mainly in American sociology, is due, according to Ritzer, to an excessive focus of American sociology of professions in the study of medical doctors and does not consider Weber’s point, in the sense discussed (See Ritzer, supra note 113, at 632). 120. For example, Petman has noted this fact before, arguing that bureaucratization of human rights is both a blessing and a curse, the curse being abandonment of the left progressive political agenda (See Petman, supra note 107, at 88). David Kennedy makes a similar point when he argues that ‘the Human Rights Bureaucracy Is Itself Part of the Problem’, Kennedy, supra note 97, at 119.

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that human rights are essentially politics. This paradox does not imply that legal professionals are less able to influence the development of HRL, as Weber saw it. It simply implies that, since lawyers have a different understanding of themselves and their craft, the law resulting from such influence is not a ‘rationalized law’, in Weberian terms, but a law that implements political goals.121 Thus, bureaucratization of human rights requires legal professionals to awkwardly argue that even though law is relatively irrelevant and human rights are essentially politics, they should be adjudicated by a bureaucracy mainly composed of lawyers. What is the added value of lawyers in this context? Why is our expertise required if, following Weber’s criteria, our input does not make human right law formal or predictable? The answer lies precisely in the fact that lawyers, within the bureaucratization of human rights, are not only professionals: we are experts. As such, they are not political, even if their craft turns out to be political in nature. This point requires further explanation. We saw that bureaucracies are composed by professionals, whose main role is formalization, rationalization, and enhancing predictability. We saw then that, although professionals working within a bureaucracy, human rights lawyers are not expected to fulfil that same role. I submit that this is due to the fact that, in the context of human rights bureaucratization, lawyers are not only professionals, but experts – and this difference is of crucial importance for their role in defining the individual.122 Experts share the specific training, language and style of professionals. If lawyers, they are both trained at the referred Weberian law school of principles and science. The essential difference, though, is accountability. Weberian professionals may very well end up being mechanical performers of heavily regulated tasks and prisoners of the Iron Cage, but they make decisions. Even though there is limited discretion, an actual conduct is undertaken by the professional, and she is accountable under that thick net of regulations for her actions.123 The expert, 121. This idea is not just a matter of viewing law as an instrument. Law as a means to an end has been present in jurisprudence at least since Roscoe Pound, has been subject to able analysis in recent literature, but does not cover the paradox I want to underscore. For a review on ‘instrumental law’, A. Riles, ‘Anthropology, Human Rights, and Legal Knowledge: Culture in the Iron Cage’, 108 American Anthropologist (2004) 52-65. 122. I have explored this point before, in reference to global water governance, in R. Uruena, ‘Expertise and Global Water Governance: How to Start Thinking about Power over Water Resources’, 9 Anuario Mexicano de Derecho Internacional (2009) 117-152. 123. In this sense, my argument departs from other accounts according to which experts and professionals are equivalent, as both ultimately see their discretion limited by their expertise. I argue that there is an important difference between the eventual prisoner of the Iron Cage and the savvy global expert, who portraits herself as advisor to actual decision makers. Ignoring that essential difference may obscure the whole effort to understand role of expert in global governance. Furthermore, if all professionals were experts, then the discussion on expertise becomes irrelevant, because the issue at hand would be restricted to the mechanics of bureaucracy and not the role special knowledge (expertise) in it. It could be that identify-

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on the contrary, is always able to shift responsibility, and argue that the actual decision was not hers, and her role is simply instrumental to the actual decision.124 The expert is, in this sense, non-accountable to those affected by their expertise. This fact becomes extremely paradoxical in the particular case of human rights experts, whose expertise is precisely the ability to insufflate politics to the law. If, as we saw before, human rights adjudication is an exercise of power, then the task of those who perform it is political in nature. But, then again, those who perform it are experts, namely, non-accountable and non-political. We have, therefore, political craftsmen and women whose role is solely defined by a single negative formula: ‘non-political’.

4. In the Search the International Homo Economicus This notion of the individual created by expertise in HRL has expanded in all areas of international law. Human agency is ignored, and the individual is recognized only as a passive recipient of protection by human rights institutions. Nowhere to be seen here is Morgenthau’s psychologically complex individual, whose nature defined in turn international relations. HRL, and international law by extension, severs such a link, featuring an individual whose agency is wholly irrelevant for international relations. However, a definition of the individual is required. HRL’s faith in institutions is the answer to this prayer. The mediator between a helpless individual and a ruthless world is the human rights judge or bureaucrat, who provides the required content for defining what an individual is. This severing move should not be underestimated. Whatever we understand international law’s goal to be, the point is that such a goal has nothing to do with human nature. Against Morgenthau, whatever human nature is (altruistic or competitive, violent or peaceful) it certainly is irrelevant for international law. Human beings are understood as helpless creatures, whose rights and obligations are then decided by human rights tribunals and institutions. International law’s theory of the individual is not much more than a simplified model of a weak entity in need of help. While individual freedom and the pursuit of happiness are common themes in debates on constitutional rights at the domestic level, this ing professionals with independent experts is another sign of the underlying idea of a radical difference between the normative systems of professions and bureaucracy, thus implicitly understanding the latter as the antithesis of the former. This, it should be remembered, is the distinctive sign of American sociology of professions in the second third of the 20th century according to Ritzer (See Ritzer, supra note 112). 124. This characteristic has been noted by Kennedy (D. Kennedy, supra note 97) who, however, does not differentiate between experts and professionals. Further, for a practical example of the way this responsibility shift is performed, see S. Falk Moore, ‘The International Production of Authoritative Knowledge: The Case of Drought – Stricken West Africa’, 2 Ethnography (2001) 161-189.

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rhetoric disappears when rights go international. This reminds us of international L&E’s own simplistic theory of the individual, whose agency was reduced to strive helplessly for their own benefit. What they both have in common is their strategic bypassing of human agency and its relevance in international relations - so important for Morgenthau, yet discarded in these theories. They do seem to differ, though, in their instrumentalist mindset: while international L&E reveals itself as non-instrumental in its doubt of the effectiveness of international law, HRL (and by extension, international law) seems to understand that international law is only relevant if it serves a given goal (for example, the definition of human rights, under Waldron’s ‘right instrumentalism’). This view, as we have seen, poses the challenge of ‘managerialism’. The challenge of managerialism has been met through three different strategies, all of which constitute an effort, in a way, to bring back the law to global governance. The first is a ‘top-down’ strategy, which seeks to limit to global power through the adoption of values as legal norms that would work as trump cards against abuses of power. This idea can be referred to, generally, as global constitutionalism: essentially, a strategy that would seek to subject the process of global governance to certain legal standards, just as a national constitution limits the exercise of authority in a domestic setting. Most certainly, the use of the term ‘constitutionalism’ lends itself to such a debate that may easily become useless for analytical purposes;125 however, given its wide use, it seems even more confusing to change the label here, and start referring to it by a completely different name. ‘Global constitutionalism’ features in turn, two strands: one that is substantive, the other procedural. Substantive constitutionalism, championed for example by Bardo Fassbender,126 Erika de Wet,127 and Ernst-Ulrich Petersmann,128 posits that there is a ‘core content’ of the international legal order, that serves as ultimate limit to global power (just as, for example, human rights works in most LatinAmerican and European domestic systems). Such core content changes from author to author, and includes, among many others, international human rights129

125. T. Cottier and M. Hertig, ‘The Prospects of 21st Century Constitutionalism’, in G. Kohler and U.Marti (eds), Konturen der neuen Welt(un)ordnung (Walter de Gruyter: Berlin, 2003) 120-163. 126. Bardo Fassbender, ‘The United Nations Charter As Constitution of the International Community’, 36 Columbia Journal of Transnational Law (1998) 529-619; Bardo Fassbender, The United Nations Charter as the Constitution of the International Community (Brill: Leiden, 2009). 127. Erika De Wet, ‘The International Constitutional Order’, 55 International & Comparative Law Quarterly (2006) 51-76. 128. Ernst-Ulrich Petersmann, ‘How to Reform the United Nations? :Lessons from the ‘International Economic Law Revolution’’, 53 Aussenwirtschaft: Schweizerische Zeitschrift For Internationale Wirtschaftsbeziehungen (1998) 193-231. 129. Erika de Wet, ‘The Emergence of International and Regional Value Systems as a Manifestation

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and the UN Charter.130 Substantive constitutionalism, moreover, often implies a belief in the foundational role of international law: thus, a global constitution is not a mechanism to control power, but also a mechanism for founding some sort of global political community, which sounds often very much inspired in the experience of the European Union.131 A second strand is procedural global constitutionalism, proposed by Jan Klabbers,132 among others. According to this strand, substantive constitutionalism is much too strict to be workable and ultimately perverse as, in Klabbers words, ‘the idea of overcoming politics by insisting on adhering to certain fixed values is bound to fail, because reference to those values itself is immensely and intensely political’.133 The answer? A ‘lite’ version of constitutionalism, which would promote certain rules of the game, as a way to bring back politics and law to global governance, without marking the cards as to the substantive outcome of the discussion. These rules are bound to be procedural, as they define the limits of the political process; consequently, while Dworkin inspires constitutionalists pur sang,134 Fuller calls the shots for proceduralists.135 Such procedural approach is shared by the second strategy to deal with managerialism. In opposition to the top down approach of global constitutionalism, the Global Administrative Law Project (GAL) implements a bottom-up strategy, and tries to limit global power not through the imposition of constitutional values, but rather through the adoption of certain aspects of administrative law in the global context.136 The idea here is neither to find the ‘core concepts’ of international law, nor the foundation of a global polity, but rather to map the different procedural arrangements of global decision-making, and try to distil a common normative character from answers given to demands of transparency, consultation, participation, reasoned decisions and review mechanisms to promote accountability in global governance.137 How does GAL relate to constitutionalist approaches? On a of the Emerging International Constitutional Order’, 19 Leiden Journal of International Law 03 (2006) 611-632. 130. See Fassbender, supra note 126. 131. Mattias Kumm, ‘The Legitimacy of International Law: A Constitutionalist Framework of Analysis’, 15 European Journal of International Law 5 (2004) 907-931. 132. Jan Klabbers, ‘Constitutionalism Lite’, 1 International Organizations Law Review (2004) 3158. 133. Ibid., at 52. 134. Ernst-Ulrich Petersmann, ‘Human Rights, International Economic Law and “Constitutional Justice”’, 19 European Journal of International Law (2008) 769-798. 135. Jan Klabbers, ‘Constitutionalism and the Making of International Law: Fuller’s Procedural Natural Law, (visited 15 February 2010). 136. Benedict Kingsbury, Richard B. Stewart, and Niko Krisch, ‘The Emergence of Global Administrative Law’, 68 Law and Contemporary Problems (2005) 15-61. 137. Benedict Kingsbury, ‘The Concept of the ‘Law’ in Global Administrative Law’, 20 European Journal of International Law 1 (2009) 23-57.

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fundamental level, they are very similar: as we have seen, both share the normative agenda of establishing some sort of legal limits to global power. Moreover, there is a link between the languages of constitutional and administrative law: while traditionally oceans apart from each other for Anglo-Saxon lawyers, these two disciplines are intimately connected for Latin-Americans or Germans, for whom it makes little sense to talk about administrative law as a different genre from (and not a species of ) constitutional law.138 The constitutionalist effort would, in this mindset, imply certain administrative law procedures; the opposite, tough, is not true: GAL would not imply a constitutional reading of global governance. Hence derive several differences between the two strategies: according to GAL scholars, global constitutionalism is much too focused on states and traditional international organizations, leaving aside less formal centres of global power.139 The point, then, is not that global constitutionalism is unable to explain global governance, but rather that the most significant dynamics of global governance (such as regulatory networks or private standard setting) simply are not registered in the sonar of constitutionalism.140 A third strategy against managerialism is the turn to a ‘culture of formalism’, proposed by Koskenniemi. In his Gentle Civilizer of Nation, Koskenniemi distinguishes between the culture of dynamism, and the culture of formalism141: the culture of dynamism looks much like what the same author called elsewhere the ‘policy approach’ to international law, that is, a teleological approach to legal reasoning which would seek to maximize social welfare through legal decision making.142 The culture of formalism, on the other hand, is a ‘culture of resistance to power, a social practice of accountability, openness and equality whose status cannot be reduced to the political positions of anyone of the parties whose claims are treated within it’.143 While almost forty years have passed since the debates in New York in 1966,144 there is a clear parallelism between the culture of dynamism and managerialism, and Koskenniemi’s call for a return to formalism seem to keep the symmetry. For the author, the legal form is a ‘surface’ where particular claims can be made in universal terms and 138. Niko Krisch, ‘Global Administrative Law and the Constitutionalist Ambition’, 10 LSE Law, Society and Economy Working Papers (2009) 1-22; Carol Harlow, ‘Global Administrative Law: The Quest for Principles and Values’, 17 European Journal of International Law 1 (2006) 187214; Diego Isaías Peña, La Construcción del Derecho Administrativo Colombiano. Hacia una Nueva Historia de sus Categorías Básicas (Universidad de Los Andes/Temis: Bogotá, 2008). 139. See Ewan MacDonald and Eran Shamir-Borer, ‘Meeting the Challenges of Global Governance: Administrative and Constitutional Approaches’ (2008) (visited 14 February 2010). 140. Ibid. 141. Koskenniemi, The Gentle Civilizer of Nations, supra note 48, at 500. 142. Koskenniemi, From Apology to Utopia, supra note 35, at 201. 143. Koskenniemi, The Gentle Civilizer of Nations, supra note 48, at 500. 144. Ibid., at 503.

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law, while still indeterminate, may actually fulfil the promise implicit in an argument being ‘legal’ - and not merely, say, ‘political’ or ‘moral. Where does international law’s agency-less individual fit in these reconstructions of global governance? Ultimately, the individual is not the main character in either of them. Constitutionalism seems to be more concerned with values than with people. Its substantive version inherits HRL’s view of the individual, and seeks to protect a helpless being through the international legal enactment of values. Its procedural version, on the other hand, features a thin version of the latter’s bold claims. The individual in this case features even less predominantly. If followed thoroughly, procedural constitutionalism could be considered successful without ever considering the people who live under the institutions aptly legitimized by its normative agenda. The same can be said about Global Administrative Law, whose focus on procedure seems to be an ill – fit for a specific theory of human nature. Indeed, both constitutionalisms and GAL almost require that we take human nature lightly, and make little of its connection to global governance. At best, the individual of global constitutionalism and GAL is the anonymous particle of an ill-defined global polity – invoked only to deny its existence. Koskenniemi’s culture of formalism, finally, does connect the individual with the universal. However, the connected individual is, precisely, the one who is framed and defined by the legal form. That is the advantage of the return to formalism, which however reveals that individual claims need to be tamed by law in order to become universal. And thus, as a self fulfilling prophecy, it is the notion of the individual featured in international law (mostly, that of HRL) that serves as filter to the universalization of the individual claim through the legal form.

5. Conclusion This paper has tried to explore the role of individual agency in global governance. First, it discussed international law and economics, and mapped its connections to (and divergences with) traditional law and economics, on one hand, and realism in international relations, on the other. It also explored the place of the individual in international law. Joining these two paths, this article showed that international law seems to overlook human agency, as it fails to understand the individual as anything beyond a helpless entity in need of protection from global governance institutions. The link between human nature and global governance is thus severed. As a result, recent efforts to re-legalize global governance (such as global constitutionalism or the global administrative law project) seem to fall into quarrels regarding the best plan to defend human rights, without giving much thought to the humans of those rights. The results of our inquiry are quite discouraging. Despite the narrative of progress concerning the role of individual in international law, human agency

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seems to be irrelevant for contemporary maps of global governance. It is therefore hardly surprising that agendas of resistance seldom emerge in such contexts. Where human agency is disregarded, proxies emerge. Thus, human rights tribunals or non-governmental organizations as ‘representatives of civil society’, seem to fill the void left by human agency. However, considering what has been discussed in the pages above, their ultimate power for emancipating the individual remains doubtful at best.

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Understanding Powers of International Organizations: A Study of the Doctrines of Attributed Powers, Implied Powers and Constitutionalism – with a Special Focus on the Human Rights Committee* Viljam Engström

1. Introduction The question of what an international organization is able to do in legal terms can be discussed in terms of the powers of that organization. The exercise of powers is in fact the most tangible way in which organizations have an impact upon their members. As a starting point, these powers can be found in the constituent instrument of the organization. However, the constituent instrument does not necessarily exhaust the powers of an organization. Organizations may also exercise what is known as implied powers. As a classical example, the United Nations (UN) sends peacekeeping troops to conflict areas although no such legal power is mentioned in the UN Charter. Also the body of European Community (EC) law has expanded considerably through the exercise of implied powers. According to one study, decisions by Community bodies that build on implied powers (Article 308 EC) have been taken on average 27 times a year since the 1950s, and 17 times a year since 2000.1 All in all this means that around 1500 decisions have been made throughout the history of European integration that lack an express legal basis in the relevant treaties. These decisions concern for example the creation of organs and the inclusion of new policy areas within Community law. However, the claim by the World Health Organization to possess powers to deal with issues of the legality of nuclear weapons was defeated by the International Court of Justice in 1996 when the court concluded that the organization does not have such an implied power.2 Because of these different ways of constructing powers of organizations, the issue of powers is often perceived as unclear and uncertain. While peacekeeping by the UN has become widely accepted, there are more than enough of examples where the issue of legal powers is highly controversial. One such example concerns the Human Rights Committee, the body charged with the supervision of the International Covenant on Civil and Political Rights (ICCPR). The Human Rights Committee claimed in 1994 to possess a power to issue authoritative interpretations on the compatibility with the Covenant of reservations made by state parties.3 The discussion on the existence and binding nature of this power of the Committee is ongoing. * 1.

2. 3.

Lectio praecursoria, held at the public examination of the doctoral dissertation at the Åbo Akademi University, 15 May 2009. Professor Jan Klabbers from the University of Helsinki acted as opponent. Robert Schütze, ‘Organized Change Towards an “Ever Closer Union”: Article 308 EC and the Limits to the Community´s Legislative Competence’, 22 Yearbook of European Law (2003) 79-115 at 82 and 110 (note 140). Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, ICJ Reports 1996, 66. General Comment 24: Issues relating to reservations made upon ratification or accession to the Covenant or

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What makes the question of powers of organizations so interesting is not merely however the difficulty of exhaustively defining them, but also the fact that any construction of powers of organizations contains a particular outlook on how the relationship between an organization and its members should be understood. Another timely discussion, which is also in essence concerned with the relationship between an organization and its members, is the debate on constitutionalism. This discussion has especially concerned the EU, but the theme has also become predominant in literature dealing with the UN and the World Trade Organization. At the same time this discussion seems to take different shapes for different organizations. The thesis describes the function of three doctrines in international legal discussion on what an organization can or should do in order to fulfill its object and purpose (which defines its raison d`être). These are the doctrines of attributed (or conferred) powers, implied powers, and constitutionalism. The common denominator for all these doctrines is that they serve as means by which to present claims on how to structure the relationship between organizations and their members. The three doctrines approach this task differently from one another. An emphasis on attributed powers focuses on member consent as the source of powers of an organization. In its most classical (and narrow) sense, attributed powers refers to powers which members have expressly conferred on an organization. The implied powers doctrine emphasizes the functional effectiveness of an organization. In order for an organization to effectively fulfill its object and purpose implied powers are needed, the logic goes. For this reason the utilization of implied powers also emphasizes the independence of organizations (vis-à-vis its membership). The discussion on constitutionalism on its part promises to transcend the dichotomy between attributed powers and implied powers through a wider focus on governance.

2. Two Driving Forces My interest in trying to understand the function of these doctrines has its source in astonishment over the fact that powers of any organization, at any given moment, can be described in contradictory terms. While the history of attributed and implied powers reasoning before international courts displays some twists and turns, more importantly, every time a particular construction of powers has been presented, the dissenting opinion has always managed to present a different construction of powers. Above all, arguments on both sides can be made through perfectly plausible legal constructions. At the time of starting my study of these legal doctrines, this gave rise to a couple of questions: How can one ever know what an organization can and cannot do? Or, is it so that powers of organizations can be constructed in any way one wishes? Even more troubling was that there was not that much literature around providing guidance. I also felt that the discussion on the constitutionalization of organizations did not necessarily manage to escape the dichotomy between attributed and implied powers. In closer look it rather seemed as if claims to constitutionalization reproduced that dichotomy,

the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant, Human Rights Committee, UN Doc. CCPR/C/21/Rev.1/Add.6 (1994), 2 November 1994.

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meaning that constitutionalism often appeared to be just another way of making claims on powers of organizations. Out of earlier attempts at conceptualizing the doctrines I was especially unsatisfied with claims that, for example, characterized a particular interpretation as a misconstruction of the doctrines, that considered attributed powers less ambiguous than implied powers, or thatargued that judicializing organizations (for example through the use of implied powers) will also lead to their depoliticization. While all of these claims are perfectly comprehensible, none of them is satisfactory as a conceptualization of the nature and function of these doctrines in legal reasoning. At worst, such claims can be overly categorical, and run the risk of hiding the actual substantive dispute from sight. In order to reach beyond such claims, the crucial first step is to recognize that law (and legal doctrines) cannot solve concrete issues of interpretation. Instead, the relationship is the reverse. Law is in itself essentially political.4 Instead of adopting a more traditional approach and try to find the ‘true content of ’ or ‘ultimate limits to’ powers of organizations, the aim is to show how and in which ways a political conviction on what an organization should do (and how) can be made into a legal argument. In other words, the thesis demonstrates how these doctrines are ‘open’ for the making of substantive claims through them.

3. Structure of the Thesis 3.1. Attributed Powers and Implied Powers in Contradiction The three doctrines are discussed on different levels. As to the doctrines of attributed and implied powers, the first task is to identify their structure. In other words,the first step is to identify the reasoning on powers of organizations that is presented through the doctrines and demonstrate how their respective modes of argumentation are constructed. In order to put the attributed and implied powers doctrines in perspective organizations are pictured as dual creatures. On the one hand, organizations are created in order to ‘overcome’ states. The desire behind the creation of organizations is to be able to address issues that states cannot (or will not) deal with individually. At the same time the conclusion of an ‘ordinary’ treaty is deemed insufficient. Instead a continuing and independent structure and process is opted for. On the other hand, states are always behind the decisions and activities of an organization (it is for example member states that vote in organs of organizations). Nor are organizations free to perform every act they please. Instead their legal personality (and thereby their legal capacity) is limited. To put it more specifically with respect to powers: on the one hand, the powers of organizations establish organizations as independent actors. On the other hand, powers are an expression of the fact that everything that organizations do has its ultimate source in the will of the membership. The ways in which the doctrines of attributed and implied powers are used in international law emphasize their different (and even contradicting) 4.

The notion of ‘political’ as used here derives from Lars Hertzberg, The Limits of Experience (Acta Philosophica Fennica: Helsinki 1994) and Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument, 2005 (Reissue with a new Epilogue, Cambridge University Press, 2005) especially at 590-596.

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driving forces: the doctrine of implied powers is a mechanism for enhancing the functional efficiency of an organizationby developing the legal means at its disposal. Attributed powers underline the limited nature of the activities of an organization, by limiting the powers of an organization to those that members have expressly consented to (by signing and ratifying the constituent instrument). At the same time neither of these competing images is completely satisfactory on its own. An input of both is needed for a proper understanding of organizations. However, the balancing act between the two images must in each and every organization find an individual solution. 3.2. Attributed Powers and Implied Powers as Contradictory This way of picturing the attributed and implied powers doctrines as contradicting one another, although by far the most common way of presenting them in international legal reasoning, is not however completely accurate. Nor is it sufficient for a proper conceptualization of the doctrines. The question of powers of organizations is not only a question of balancing between the efficiency of an organization and the maintenance of the status quo (in order to respect member consent). Powers can also be discussed as a matter of competing conceptions of effectiveness, or as a question of whether members of an organization have given their consent to the exercise of implied powers. The doctrines of attributed powers and implied powers can be used to present competing (and even opposing) constructions of powers and are fully meaningful when used in this way. Yet, once there is agreement among members on the reach of the powers of an organization (whether express or implied), then all those powers can be characterized as attributed. Turned around, if there is agreement on limiting the activities of an organization to its expressly attributed powers only (and there is agreement on how to interpret those express powers), then this is also the construction of the powers of the organization which members consider functionally necessary and efficient. Despite this reconciliation of the doctrines of attributed and implied powers, they still serve to express different constructions of powers of organizations. The two doctrines still maintain their distinctive driving forces. What the reconciliation does bring with it is rather the insight that the dichotomy between the independence of organizations and concerns of member sovereignty has its source in different conceptions between member states concerning the role of the organization. The discussion of the Human Rights Committee demonstrates on a concrete level how this insight enriches the discussion of its powers. This is the case for example when interest is turned from a formal discussion on whether the object and purpose of the Committee allows for use of implied powers, first to the question on how the functional efficiency of the Committee is to be balanced towards the safeguarding of sovereignty concerns of ICCPR state parties, and even further to a discussion on different conceptions of effective human rights protection (how should for example the integrity of the ICCPR be balanced with universal participation?).

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3.3. The Promise of Constitutionalism As to the idea of constitutionalizing organizations, two aspects of constitutionalism are singled out: the one emphasizing a judicialization of organizations (formal constitutionalism), whereas the other turns interest to issues of democratic legitimacy (substantive constitutionalism). To judicialize organizations is an effort in developing judicial proceedings, creating legal hierarchies, and developing the legally binding elements of the legal order (commonly including judicial supervision of members as well as of the organs of the organization). An emphasis on (social) legitimacy on its part underlines the importance of a link between organizations and societies, and the constant ‘renewal’ of consent of members.5 Democratic governance is often presented as the primary means for guaranteeing this renewal. As a result of the difficulties with applying the doctrine of constitutionalism beyond the state context, formal and substantive constitutionalism are often emphasized independently of one another. In such a use both aspects reproduce (in various ways) the claims that can also be made through the doctrines of attributed and implied powers. The idea of attributed powers coincides with the emphasis on member consent of substantive constitutionalism. A judicialization of organizations on its part often serves as a tool for increasing the functional effectiveness of the legal order (the claim being that judicialization for example can avoid entaglement in political struggles). These links between attributed powers and substantive constitutionalism, or between implied powers and formal constitutionalism are not however the only possible connections. Judicialization of organizations can also be viewed as a safeguard (in the form of a legality check) against too wide an expansion of powers. Democratization of organizations does not on its part automatically entail a delimitation of the powers of an organization. Instead, the very emphasis on member consent in substantive constitutionalism can bring with it the necessary input of democratic legitimacy required for widening the powers of an organization (as the example of European integration demonstrates in different ways). Because of the many and various claims that can be phrased in terms of a constitutionalization of organizations, constitutionalism does not manage to structure the dichotomy between the organization and its members in any abstract way. Instead every claim to constitutionalization will always also constitute a political claim regarding the tasks of the organization.

4. By Way of Conclusion Since each of the three doctrines is capable of expressing different approaches to cooperation in organizations, it follows that the three doctrines can also express a similar approach to that cooperation. The only difference in such a case would be that they make their claims in different words. An emphasis on the necessity of a power of judicial review (in order 5.

The term social legitimacy is used e.g. by Joseph Weiler in The Constitution of Europe: ‘Do the New Clothes have an Emperor?’ and other Essays on European Integration (Cambridge University Press, 1999) at 80-81. See also David Beetham, The Legitimation of Power (Humanities Press International: Atlantic Highlands NJ, 1991) at 19 and 94.

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to efficiently fulfill the object and purpose of the organization) transforms, for example, into an argument over the necessity of a judicialization of the organization (which in practice can be realized through a development of its legal powers). Such a shift of focus or ‘level’ upon which to deal with powers of organizations can have some merit. A shift for example from the formal issue of whether the constituent instrument of an organization allows for the use of implied powers, to a question of what is meant by functional efficiency, reveals new aspects of the dispute over the reach of powers. The same holds true when for example the question of developing the enforcement capacities of an organization is transformed into a question of how to balance the judicial and political aspects of that organization (and the possible merits and demerits with that balance). By being open to such balancing acts, issues on the nature and legitimacy of the organization itself as well as of its decisions will arise. Through these discussions a debate on the powers of an organization can be put in a wider context. The useful insights that are hereby added to a discussion on what an organization should do (and with what legal means) will also shed light on the depth of the political disagreement at the heart of different interpretations of powers of organizations.

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Understanding Powers of International Organisations: A Study of the Doctrines of Attributed Powers, Implied Powers and Constitutionalism – With a Special Focus on the Human Rights Committee by Viljam Engström. Doctoral Dissertation, Åbo Akademi University, 2009. It is not everyday that Finnish law schools see the defence of a doctoral thesis in international law. It is rarer still that the doctoral thesis is a work of international quality, filling a gap in the worldwide literature on the topic. I believe that Viljam Engström’s thesis is such a work of international allure though; it meets with high standards of scholarship, addresses an under-studied topic within a generally under-studied sub-discipline of international law, and does so with verve and cogency. Let me start by sketching the disciplinary background. The candidate writes about the powers of international organizations, arguably the topic most central to the law of international organizations, but only rarely studied in great depth. It is telling perhaps that the powers of international organizations have mostly been written about in the form of contributions to Festschrifte, a specific genre within legal writings which allows for a more essayistic and less methodologically rigorous style than journal articles usually do.1 This suggests, if nothing else, that the topic of powers is a tricky one, which is more suitable to free-flowing philosophizing and perhaps a bit of speculation combined with a hint of wishful thinking, than to cool, dispassionate analysis. There are exceptions, of course. There is some useful work, typically stemming from the continent and written in languages other than English, on the doctrine of implied powers, often involving a comparison with the distribution of powers in federated systems.2 This is, however, sometimes limited to the powers of single organizations, and at times too much geared to the comparison, at the risk of neglecting the circumstance that international organizations and federations are not quite identical. In particular (and this is a topic to which we will return), the position of member states within international organizations is radically different from the position of the component units of federations, as the candidate indeed suggests. Specific studies moreover exist with respect to

1.

2.

Examples include Jerzy Makarczyk, ‘The International Court of Justice on the Implied Powers of International Organizations’, in Jerzy Makarczyk (ed.), Essays in International Law in Honour of Judge Manfred Lachs (Martinus Nijhoff Publishers: The Hague, 1984) 501-19; Krzysztof Skubiszewski, ‘Implied Powers of International Organizations’, in Yoram Dinstein (ed.), International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (Martinus Nijhoff Publishers: Dordrecht, 1989) 855-68; and Jan Klabbers, ‘Over het leerstuk der impliciete bevoegdheden in het recht der internationale organisaties’, in Hanneke Steenbergen (ed.), Ongebogen recht: Opstellen aangeboden aan prof. dr. H. Meijers (Staatsdrukkerij: The Hague, 1998) 1-11. See, e.g., Bernard Rouyer-Hameray, Les competences implicates des organizations internationales (Librairie generale de droit et de jurisprudence: Paris, 1962); Joachim Becker, Die Anwendbarkeit der Theorie von den implied powers im recht der Europäischen Gemeinschaften (Diss. Iur, Münster, 1976); and Christine Denys, Impliciete bevoegdheden van de Europese Economische Gemeenschap: Een onderzoek naar de betekenis van ‘implied powers’ (Maklu: Antwerp, 1990).

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the powers of specific organizations in specific issue areas.3 Useful as such work may be, it is usually not of such a nature as to allow for conceptual generalization. There is also some work in analytical jurisprudence on the very concept of legal powers,4 but this is rarely, if at all, written with international organizations in mind, and suffers from the same drawback that informs so much analytical jurisprudence: it is enormously useful to clarify the thoughts, but not always empirically plausible or sustainable. And then there is some very good recent work on transfers of powers, in particular the monograph by Dan Sarooshi. Still, Sarooshi is more interested in how transfers of powers can be classified than in those powers themselves.5 As a result, it is no exaggeration to say that there is a gap in the literature, and that the candidate’s work goes a long way towards filling that gap. That applies not only to the present thesis, but also to some shorter works: an article in the Finnish Yearbook a few years ago,6 and a more recent contribution to the forthcoming Research Handbook on International Organizations Law.7 The candidate has calmly and with great care set out to conceptualize and analyze the main doctrinal constructions relating to the powers of international organizations. He identifies three such approaches: the doctrine of attributed (or conferred) powers, the doctrine of implied powers, and the idea of constitutionalism. He traces their origins, their intellectual development as well as their development through the case-law, and ends up testing to what extent they can help make sense of the powers of an institution not often regarded as a textbook example of an international organization: the Human Rights Committee, usually regarded as a quasi-judicial body charged with overseeing the application of the International Covenant on Civil and Political Rights. What is particularly useful is that the candidate has a well-developed awareness of the politics of international institutional law. Constructing the powers of international organizations is not a technical legal exercise, to his mind, but quickly lapses into a more fundamental question: ‘who decides’. The doctrines on powers, in this thesis, function not so much as legal rules waiting to be applied (and it is surely no coincidence that no one ever speaks of the ‘implied powers rule’), but as doctrines, as constructions, as ever so many arguments or sets of arguments waiting to be thrown into the arena of global politics by anyone with an interest in seeing that an organization shall either do activity X or shall not do activity X. This formed already the background of the early case-law 3.

4.

5. 6. 7.

One example among many is Lena Granvik, The Treaty-making Competence of the European Community in the Field of International Environmental Conventions (Finnish Society of Environmental Law: Helsinki, 1999). See, e.g., Andrew Halpin, ‘The Concept of a Legal Power’, 16 Oxford Journal of Legal Studies (1996) 12952. The locus classicus (pre-dating the emergence of international organizations as suitable topics for study in their own right) is Wesley N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (first published 1919, Greenwood Press: Westport CN, 1978). See Dan Sarooshi, International Organizations and their Exercise of Sovereign Powers (Oxford University Press, 2005). See Viljam Engström, ‘Implied Powers of International Organizations: On the Character of a Legal Doctrine’, 14 Finnish Yearbook of International Law (2003) 129-57. See his contribution to Jan Klabbers and Åsa Wallendahl (eds), Research Handbook on International Organizations Law: Between Functionalism and Constitutionalism (Edvard Elgar Publishing: Cheltenham, 2010, forthcoming).

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of the Permanent Court of International Justice (PCIJ) on the International Labour Organization (ILO): those cases were typically inspired by French reservations concerning the proper role of the ILO, and those reservations were then given the shape of legal arguments, partly on treaty interpretation, but partly also already on powers. The Court itself was, in those early days, not yet ready to entertain such thoughts, but the arguments were made nonetheless. * As a matter of the candidate’s overarching theoretical framework, he sensibly regards the law of international organizations as originating in the tension between the organization and its member states. This is, on some level, what distinguishes organizations from federations: in the typical federation (always assuming such a thing exists), the component units are in one way or another subordinated to the larger whole. Speaking of the US, few would suggest that federal policies are the result of interactions between Texas, Massachusetts, Idaho and the remaining 47 states. Likewise, few observers of German politics would suggest that federal policies are the result of bargains involving Bavaria, Hessen and North Rhein-Westphalia. Yet, such ways of thinking are very common with respect to international organizations. Typically, the policy output of international organizations is analyzed in terms of strategic bargaining between its member states; this still holds true even for the EU. And when, on occasion, this model cannot be applied because the organization is dominated by a single member state (thus suggesting that bargaining rarely takes place, but things are more dictatorial), the discipline responds by denying that particular entity’s identity as an international organization – the example of the former Warsaw Pact is often mentioned in this context, as an example of a fake organization, while some may also regard NATO along these lines.8 And yet, despite the important role of the member states within organizations, it seems also clear that the UN, somehow, is more than the aggregate of its member states; that the OECD is more than the sum of its parts; that the EU has an existence and identity separate and distinct from those of its member states. In other words, there is a constant oscillation between two images: the organization as a vehicle for its member states, and the organization as somehow separate from its member states. This cannot but influence the law.9 It is against this general background that the candidate sets his investigations of the attributed powers doctrine, the implied powers doctrine, and the doctrine of constitutionalism. In doing so, he makes the fine point that powers themselves fulfil a dual role. On the one hand, powers are the expression of the desires of the member states, and thus, one could say, firmly anchored in the opinion that organizations are but vehicles for their member states. On this view, the member states create an entity, endow it with 8. 9.

See e.g. Bryan Schwartz and Elliott Leven, ‘International Organizations: What Makes Them Work?’, 30 Canadian Yearbook of International Law (1992) 165-94 This is elaborated in detail in Jan Klabbers, An Introduction to International Institutional Law (2nd edn, Cambridge University Press, 2009).

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certain powers and tell it what to do (and perhaps what not to do). Either way, the end result rests firmly within the control of the member states. Yet, on the other hand, the organization’s own existence is expressed precisely in and by those same powers: to the extent that the organization can be said to be independent, it owes its independence to having been endowed with its powers – and it is only by giving effect to these powers that it can express itself, so to speak. So the complicated picture arises of the sorcerer’s apprentice, owing both his skills and his independence to the same source: dependent on the teacher, and yet independent from the teacher. Or, as sometimes invoked by others, there is the image of Frankenstein’s monster: the creator has to obey his creation. Thus, on this reading, it is clear that organizations owe their powers to their member states; the next question then is to figure out how this occurs. This was an issue which puzzled the international legal community for a while: when the first institutions were created, they were not immediately thought of in terms of powers. Instead, they were regarded as treaties, and early case-law on the scope of activities of organizations strongly suggested that questions as to what organizations could legally do were really matters of treaty interpretation and nothing else. Still, by the mid-1920s the PCIJ first started to formulate an answer, launching the doctrine of attributed powers and linking this strongly to the functions of the organization in question.10 On this line of thought, organizations have only such powers as are conferred upon them: they are agents of their principals, the member states being those principals. Or rather, to be more accurate: the member states collectively form a single principal, and the organization acts as its agent. This construction, however, brings back the above-mentioned tension between organizations as vehicles, and organizations as independent actors. The attributed powers doctrine strongly taps into the vehicle conception, but at the risk of ignoring the ‘independent actor’ conception. This now creates problems caused by, as the candidate suggests, the link between attributed powers and functions. For, the function of an organization may well demand broader powers than the organization actually has been granted. It may well be necessary for the organization’s functions that it be considered to have powers other than, and in addition to, those expressly attributed by their member states. This then opened the door for an additional doctrine, which was first presented by the PCIJ about two years after the launch of the attributed powers doctrine. In the Greek and Turkish Population case,11 it came up with the notion of implied powers, in a version seemingly copied straight from the textbooks on federalism: an implied power is one that is needed to give effect to an express power. This then would help to make it possible for the organization to execute its functions, although in this narrow form it remained the case that perhaps those functions could not be fully executed, and with that in mind it is perhaps no coincidence that two decades later the International Court of Justice (ICJ) would hook up the implied powers doctrine more clearly to the functions of the organiza10. See Jurisdiction of the European Commission of the Danube between Galatz and Braila, Advisory Opinion, PCIJ Series B, No. 14 (1927). 11. See Interpretation of the Greco-Turkish Agreement of December 1st, 1926, Advisory Opinion, PCIJ Series B, No. 16 (1928).

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tion. In the classic Reparation for Injuries case, the ICJ held that an implied power is one that is necessary to help the organization achieve its functions, and therewith it closed the gap that had been launched by first linking powers and functions.12 This would find further confirmation by the ICJ five years later, in Effects of Awards,13 and a confirmation of sorts another decade later in Certain Expenses.14 That said, though, some have also argued that Certain Expenses goes a step further, and posits not an implied powers doctrine, but rather a doctrine of inherent powers.15 The two predominant doctrines are well-presented by the candidate, albeit in perhaps a somewhat elliptical writing style. Both the doctrine of attributed powers and the doctrine of implied powers are handled with respect and subtlety. What is less clear is the role of the third doctrine in this thesis. For, remember, the thesis discusses not two doctrines on powers, but three, the third being constitutionalism. The candidate’s justification for this would seem to be as follows. Early on in the thesis (at 8) he suggests that what constitutionalism and the two powers doctrines have in common is that all three ‘can be used for making particular claims concerning the role and activities of organizations.’ Thus, they all shed light on the relationship between the organization and its member states. That may be so, but does raise the question where constitutionalism finds itself on the spectrum of ideas about that relationship and, at the same time, does raise the issue why another doctrine sometimes mentioned is by and large ignored. The thesis rests almost entirely silent on the doctrine of inherent powers, the doctrine sometimes mentioned in connection with the Certain Expenses case. Now there may be good reasons for this (not least the circumstance that the doctrine would seem to have only few serious adherents), but still: it could well be argued that a comprehensive study on the powers of international organizations should pay some sustained attention to the inherent powers doctrine, especially if that study is interested in what the doctrines on powers say about the relationship between the organization and its members. The candidate’s justification for the omission is his suggestion that the inherent powers doctrine is too similar to the implied powers doctrine (at 39). This may well raise other issues though, if only because it is far more difficult to relate inherent powers to the wishes of the member states. And regardless of inherent powers, how does constitutionalism fit in? If attributed and implied powers signify an increasing distance between organization and member states, is constitutionalism then still a step further removed from the members? The structure of the thesis would seem to suggest as much, given that it starts with attributed powers and ends with constitutionalism. Yet, intuitively at any rate, the idea of constitutionalism should give the members a greater degree of control than even the attributed powers doctrine. 12. See Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports (1949), 174. 13. See Effect of Awards of Compensation made by the United Nations Administrative Tribunal, Advisory Opinion, ICJ Reports (1954), 47. 14. See Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter), Advisory Opinion, ICJ Reports (1962), 151. 15. See in particular Finn Seyersted, Common Law of International Organizations (Martinus Nijhoff Publishers: Leiden, 2008).

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The candidate himself suggests that constitutionalism enters the picture not so much because it aims to construct the powers of organizations, but rather because it ‘attempts to find closure on the question of powers (among other things) through a broader focus on governance’ (at 125). I guess this can be interpreted in various ways; one possible interpretation is, however, precisely that constitutionalism involves greater control over the organization than either of the other two doctrines – does this then undermine the nice symmetry underlying the ‘dual image of international organizations’? Is that perhaps why constitutionalism is bound to remain controversial? * This thesis is, as far as method goes, a fairly straightforward legal thesis: it explores the writings of academics and discusses the applicable case law in depth. There is not that much attention for black letter law (treaty provisions etc.), but this can easily be explained: first, there is not much black letter law on the topic, and second, the thesis self-consciously aims to elevate itself beyond a doctrinal study at any rate – instead, its aim is to discuss those same doctrines, rather than create a new doctrine or even an amalgamated version of the existing ones. And yet, straightforward as it is, there is one surprising element, and that is the application of the three doctrines to the Human Rights Committee (HRC). This is justified, in a way, by pointing out that the HRC is an international institution in its own right. And as such it is by no means eccentric to discuss it as an institution, and that means, in terms of its powers: attributed, implied and constitutional. Indeed, it is by no means uncommon to discuss courts as if they are international organizations, at least in some contexts: thus, one can meaningfully discuss the privileges and immunities of, say, the ICJ, or the International Criminal Court (ICC), as if they are organizations. And indeed, for these purposes, that is precisely what they are. But does the same approach also make sense with respect to questions of powers? While there is some plausibility in regarding the HRC as an international organization, it is equally plausible to regard it as a judicial organ; and if it can be classified as a judicial organ, then it becomes very possible, all of a sudden, to start to discuss its powers not as those of an international organization, but in terms of the powers of judicial organs. And that, in turn, suggests a new discussion, for it would seem to be generally accepted that judicial organs have certain powers that inhere in the judicial function, unless they themselves would forfeit those powers. These may include the power to order interim measures, or the power to receive amicus curiae briefs, or the power to hear witnesses or do ‘on-site inspections’. And if that is the case, then the earlier question raises its head again: should not the doctrine of inherent powers have been given greater prominence? And to what extent can the idea of inherent powers be analogized to that of a court’s inherent jurisdiction, as the candidate seems to be doing when discussing a few pertinent cases (at 85-6)? Of course, it is understood that the candidate’s main interest was not so much in discussing the powers of the HRC per se, but rather in studying how the doctrines on powers would hold, and would structure things, in connection with the HRC. And given some of the controversies surrounding some of the activities of the HRC (e.g. its position

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on reservations to the International Covenant on Civil and Political Rights), there is an intuitive appeal to studying the HRC against a background of international institutional law. It is regrettable though that the intuitive appeal is not really further fleshed out, for only in such a case is further meaningful discussion possible. And should the argument be that the HRC ought to be studied in terms of power doctrines and constitutionalism because that is how the HRC itself, and its individual members, think of it, then a possible response would be that the mere circumstance that an institution itself uses a certain vocabulary does not automatically imply that its use of that vocabulary is correct, or even plausible. Something more would be needed to drive the argument home. * On the level of detail, this is truly a remarkable study, and the author makes a number of truly insightful observations. One of these is, as mentioned earlier, the observation that powers provide a dual image to international organizations: they help define the organization’s tasks, but simultaneously also establish the organization as somehow independent. This is truly an innovative insight, which helps the discipline of international institutional law (if a discipline it is16) to come to terms with itself. I was also struck by the suggestion, made somewhat fleetingly perhaps (at 47-8), that the PCIJ’s Danube Commission opinion not only introduced the notion of attributed powers, but also gave rise to the theory of functionalism. Maybe the fleeting nature of the remark is the candidate’s responsibility; it strikes me as possible, though, that it also owes something to the PCIJ itself, which was stumbling a bit in those years trying to make sense of the very phenomenon of international organizations. Popularly put, and without disrespect, it seems possible to claim that the Court hardly realized what it was doing.17 Be that as it may be, the important point here is the making of that connection to begin with: while many of those active in international institutional law often drop the terms ‘powers’ and ‘functions’, the precise relationship between powers and functions has yet to be fleshed out, and it is surely one of the merits of the candidate’s work to bring this to attention. Noteworthy is also his intermediate conclusion (at 96) that ‘every construction of the legal powers of an organization will constitute a balance between the attributed and implied powers doctrines.’ This strikes me as essentially correct and undisputable, but it does once again raise a different issue: if powers are always a balance between attributed and implied powers, then what role for constitutionalism? The candidate is also an astute reader of judgments, and is able to place a premium on the exact wording used by courts. Thus, he points out (with respect to the Nuclear Tests case) that there is a certain inconsistency in speaking of inherent powers yet, at the same time, claiming that those inherent powers have been ‘conferred upon’ the entity 16. See Jan Klabbers, ‘The Paradox of International Institutional Law’, 5 International Organizations Law Review (2008) 151-73. 17. See further Jan Klabbers, ‘The Life and Times of the Law of International Organizations’, 70 Nordic Journal of International Law (2001) 287-317.

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in question by its creators. Surely, if something is inherent, then it is by definition not conferred. Sometimes the candidate cannot escape from a certain ambivalence. Thus, at one point, it is noted that the attributed powers doctrine, shortly after having been launched, ‘was to be forgotten for almost 60 years’ (at 49). This, I think, is incorrect, and I guess the candidate agrees, as elsewhere he speaks of the persistence of both the implied powers and attributed powers doctrines in time (at 96). Another point of some ambivalence (but mine perhaps more so than the candidate’s) concerns the construction of implied powers as, somehow, attributed (at 155). I think this is essentially correct, but then the candidate makes a curious move by attaching implied powers to ‘the common interest’, suggesting that ‘If that common interest includes the use of implied powers, then such implied powers can be described as conferred upon the organization.’ This is no doubt correct with respect to implied powers as a broad category; but would it also apply with respect to individual implied powers? * All in all, this is a remarkable PhD thesis, which comes full circle in the end. Faced with the unsolvable tension between various doctrines concerning powers, the candidate seeks refuge in the notion of legitimacy. That is, among today’s international lawyers, a familiar move: legality is often replaced by legitimacy. Nonetheless, the move is not without risks: legitimacy is such a fluid concept that it might be impossible to operationalize it. Moreover, one should distinguish between its various forms: one may distinguish between input and output legitimacy, or between procedural and substantive legitimacy. Interestingly, this latter part (procedure versus substance) also haunts the discussion on constitutionalism. Finally, to invoke legitimacy is not to say all that much: it remains a matter of figuring out whose ideas of legitimacy are considered worthwhile. And that, in a roundabout way, means that the candidate finds himself back at the point where he started, with the question ‘who decides’. It is this question that remains unanswered when discussing powers of international organizations, and there is no reason to assume it would be any easier when speaking about legitimacy. In a sense, such roundabout trips are inevitable, and somehow an inherent part of the very approach of the thesis. The candidate is well aware of the circumstance that sometimes problems can only be solved (if that’s the word to use) by giving them a different name. Attributed powers and implied powers are fine examples thereof, in the candidate’s re-conceptualization: one mirrors the other, and they even become indistinguishable from one another. By the same token, it would seem, discussions on which form to prefer, or which form of constitutionalization to prefer (procedural or substantive) can only be solved by renaming and rebranding. The candidate is well aware of the indeterminate nature of such ideas and concepts, and of their highly political nature. It is this sort of awareness which characterizes mature international legal scholarship. While the thesis does have a few weaker spots (the inclusion of constitutionalism is not justified to full satisfaction, and neither is the focus on the HRC, while one could have expected some more attention for the inherent powers doctrine and perhaps,

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from a broader perspective, for issues of control of international organizations at large), nonetheless this is a fine work. It is ambitious, well-research and well-written, seriously argued, and it by and large succeeds in taking the discipline of international institutional law a step further. Jan Klabbers Professor of International Organizations Law University of Helsinki

Elements of Finnish State Practice in 2007 – 2008 Virpi Laukkanen*

1. Introduction This article continues the series of reports on Finnish state practice published regularly in this Yearbook.1 The article covers the years 2007 – 2008. The report covers only a few selected activities taking place in the field of public international law in Finland. The practice with regard to treaty relations is illustrated in the form of a list of multilateral and bilateral treaties entered into force in Finland (Annexes I and II) and objections to reservations made to treaties.

2. International Humanitarian Law Finland participated in the 30th Conference of the International Red Cross in Geneva in November 2007, which focused on the humanitarian consequences of four major challenges facing the world: environmental degradation and climate change, international migration, violence, particularly in urban settings and emergent and recurrent diseases and other public health challenges. During the Conference, Finland made 10 pledges, for example, a pledge, together with the Governments of Sweden and Switzerland, on computer attacks with the objective to continue to promote a shared understanding on how International Humanitarian Law (IHL) should be applied to computer network attacks during armed conflict. Together with other EU member states, Finland made seven joint pledges, for example on public dissemination of and training *

1.

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

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on IHL, on the national implementation and enforcement of IHL as well as on fundamental procedural and other guarantees to all persons detained in relation with an armed conflict or other situation of violence. Together with other Nordic countries, Finland pledged to raise awareness about and promote respect for the provision of neutral, impartial and independent humanitarian action carried out by the International Red Cross and Red Crescent Movement in situations of armed conflicts. Together with the Finnish Red Cross, Finland made a pledge to work together in order to support the integration of migrants in Finland and to strengthen efforts to prevent the marginalization of vulnerable migrants. The implementation of these pledges is followed within the framework of a national working group on humanitarian law. The co-operation with the public authorities and the Finnish Red Cross has a long tradition in Finland. The Finnish Red Cross has been a reliable partner in providing expertise and mobilizing resources for humanitarian action and the role of the national society is valued also in the dissemination of IHL. In addition to a joint EU pledge on Partnership with the European Union National Societies, Finland also fully supported the resolution of the 30th Conference on the specific nature of the Red Cross and Red Crescent movement and on the role of national societies in the humanitarian field. In 2008, Parliament adopted the Government Bill2 on the ratification of the Third Additional Protocol to the Geneva Conventions. The Convention entered into force in Finland in July 2009.3 The Third Protocol, adopted in 2005 and signed by Finland in March 2006, provides for an additional emblem for the International Red Cross and Red Crescent Movement, known as the red crystal.

3. International Tribunals Fighting impunity for the most serious international crimes is one of Finland’s foreign policy priorities. Finland has stressed the importance of the universal ratification of the Rome Statute of the International Criminal Court and of its implementation. Finland has also strengthened cooperation with the International Criminal Court through additional arrangements and negotiations on an agreement on the enforcement of sentences in Finland are currently underway. No major amendments were introduced in the Finnish Penal Code (Statute Book of Finland 309/1889) when the Rome Statute of the International Criminal Court was ratified by Finland in December 2000.4 It was acknowledged,

2. 3. 4.

Government Bill HE 174/2008. Statute Book of Finland 944/2008, Finnish Treaty Series 32-33/2009. Government Bill HE 161/2000.

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however, that for the national courts to be fully able to exercise jurisdiction over crimes within the International Criminal Court’s jurisdiction, it was necessary to modify the Penal Code. A Government Bill5 on certain amendments with regard to the criminalizations in Chapter 11 of the Penal Code, as well as introducing specific provisions implementing Articles 28 and 33 of the Rome Statute was submitted to Parliament in September 2007. The amendments were adopted in April 2008 and entered into force in May 2008.6 The amendments ensure full compatibility with the definitions of the crimes in the Rome Statute, in view of the requirements of complementarity. The year 2008 was the tenth anniversary of the adoption of the Rome Statute, which today has 108 State Parties. In order to mark this milestone in the development of international law, the Finnish Institute of International Affairs, in cooperation with the Ministry for Foreign Affairs, organized a seminar in Helsinki in June 2008 under the title ‘Current Challenges to International Criminal Justice – the international Criminal Court ten years after the adoption of the Rome Statute’. Judge Philippe Kirsch, President of the International Criminal Court was the keynote speaker at the seminar. The seminar and the visit by President Kirsch to Finland also helped to increase awareness of the wider public about the important function of the Court.7 Finland has continued financial support to various projects promoting the objective of fighting impunity. Finland has contributed to the Victim’s Trust Fund of the International Criminal Court devoted to advocating for and assisting the most vulnerable victims of genocide, crimes against humanity and war crimes. Finland has also assisted financially the Legal Tools project of the International Criminal Court, a database consisting of legal documents and commentaries related to international criminal law, as well as the Court’s Internship and Visiting Professionals Programme, Seminars on Counsel Issues and Least Developed Countries (LDC) Trust Fund of the Assembly of States Parties. As far as the Internship and Visiting Professionals Programme is concerned, Finland finds it important that the grants further increase the number of participants from developing countries, and thus contribute to a more equitable geographic representation in the Court. Finland has also continued to cooperate with the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone and has provided voluntary financial assistance to the Special Court for Sierra Leone. Finland has emphasized the effective functioning of the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone and the successful accomplishment of their activities in accordance with the relevant completion strategies. 5. 6. 7.

Government Bill HE 55/2007. Statute Book of Finland 212/2008. (visited 27 March, 2009).

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An international conference ‘Building a Future on Peace and Justice’ was held in Nuremberg in July 2007. The conference was convened by an initiative of the Governments of Germany, Finland and Jordan together with the International Center for Transitional Justice and the Crisis Management Initiative. The objective of the Conference was to make a contribution to a better understanding of the tensions, which can arise between peace and justice during peace negotiations and in post-conflict peacebuilding.8 The Conference concluded that peace and justice are not contradictory forces. Rather, if properly pursued, they promote and sustain one another. In his concluding speech at the Conference, Mr Erkki Tuomioja, former Finnish Minister for Foreign Affairs, welcomed the drafting of an outcome document in the form of a declaration. The Nuremberg Declaration reflecting the conclusions of the Conference was forwarded to the UN Secretary-General in June 2008.9 The Declaration contains definitions, principles and recommendations on issues of peace, justice and impunity, as well as making peace, dealing with the past and promoting development. Although it is not a legal document, it aspires to ‘guide those involved at the local, national and international levels in all phases of conflict transformation, including mediation, post-conflict peacebuilding, development and the promotion of transitional justice and the rule of law’ and thus to influence the future practice of making and building ‘just and lasting peace’.10 Finland has also been active in the Justice Rapid Response (JRR) initiative, the purpose of which is to provide for an international cooperative mechanism for the supply of voluntary assistance at the request of an international institution or a post-conflict State, where the identification, collection and preservation of information would assist at any stage a wide range of international and transitional justice options. In November 2007, the first JRR Policy Group Meeting in New York adopted the Guidelines for Cooperation and Deployment, thereby formally establishing the JRR mechanism. The Guidelines adopted foresee two main bodies for the JRR mechanism: the JRR Policy Group and the JRR Coordinating Group, both of which were also established in November 2007.11

8. 9.

< http://www.peace-justice-conference.info/> (visited 27 March 2009). A/62/885 of 19 June 2008, Annex to the letter dated 13 June 2008 from the Permanent Representatives of Finland, Germany and Jordan to the United Nations addressed to the Secretary General. 10. Ibid., Letter dated 13 June 2008 from the Permanent Representatives of Finland, Germany and Jordan to the United Nations addressed to the Secretary General. 11. (visited 27 March 2009).

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4. International Financial Sanctions As in the previous reports published, the notifications informing of the entry into force of the EC Sanctions regulations are listed below. Applicable penal provisions to violations of sanctions regulations are referred to in Section 2a of the Sanctions Act (659/1967). In 2007, the Ministry for Foreign Affairs issued two notifications informing of the entry into force of the following EC Regulations: Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran12 and Council Regulation (EC) No 329/2007 of 27 March 2007 concerning restrictive measures against the Democratic People’s Republic of Korea.13 In 2008, the Ministry for Foreign Affairs issued two notifications informing of the entry into force of the following EC Regulation: Council Regulation (EC) No 194/2008 of 25 February 2008 renewing and strengthening the restrictive measures in respect of Burma/Myanmar and repealing Regulation (EC) No 817/200614 and Council Regulation (EC) No 243/2008 of 17 March 2008 imposing certain restrictive measures on the illegal authorities of the island of Anjouan in the Union of the Comoros.15 Council Regulation (EC) No 243/2008 was later in 2008 repealed by Council Regulation (EC) No 705/2008 of 24 July 2008 repealing Regulation (EC) No 243/2008 imposing certain restrictive measures on the illegal authorities of the island of Anjouan in the Union of the Comoros.16

5. The Sixth Committee of the United Nations General Assembly Finland has continued its commitment to strengthening the rule of law both at the national and international levels and has engaged actively in the discussions taking place in the Sixth Committee of the UN General Assembly in 2007 and 2008. In order to strengthen the coordination of system-wide rule of law activities, the establishment of the UN Rule of Law Coordination and Resource Group in 2007 was a welcomed and long-awaited step. Finland, together with other interested states, has consistently underlined and highlighted the need for coordinating and streamlining the rule of law activities of the United Nations. Finland has also actively promoted the financing of the Rule of Law Unit from

12. 13. 14. 15. 16.

OJ 2007 No. L 103, 20 April 2007, at1 – 23. OJ 2007 No. L 88, 29 March 2007, at 1 – 11. OJ 2008 No. L 66, 10 March 2008, at 1 – 87. OJ 2008 No. L 75, 18 March 2008, at 53 – 59. OJ 2008 No. L 197, 25 July 2008, at 1.

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the general budget of the UN in order to establish its operation and ensure the independent functioning of the Unit. In June 2008 in New York, the Permanent Mission of Finland to the United Nations in cooperation with the Rule of Law Unit, arranged a seminar for all interested parties on harmonizing the UN approach in the area of the Rule of Law. Ms. Asha-Rose Migiro, the Deputy Secretary General of the UN and Mr. Jamal Benomar, the Director of the Rule of Law Unit were key speakers at the seminar. Finland also attaches utmost importance to strengthening the criminal justice at international and national levels. Finland has stressed the need to ensure the accountability of the UN officials and experts on mission with respect to criminal acts committed in UN missions, in particular ensuring an end to impunity for sexual violations. Finland welcomes the discussions in the Sixth Committee to this end. Particular attention has to be paid to promoting the ratification and full implementation of the already existing international treaties and on the cooperation and enhancing the exchange of information between the various parties. It is also important to encourage states to establish and exercise their criminal jurisdiction with respect to serious crimes committed by their nationals while serving on UN missions.

6. International Cooperation to Combat Terrorism 6.1. Cooperation in the Framework of International Organizations Finland emphasizes the importance of effective multilateral cooperation in counter-terrorism activities and participates actively in the counter-terrorism cooperation within the UN, EU, the Council of Europe, the OSCE and other international organisations. In line with its overall objective to support multi-lateral cooperation, Finland participated actively in the first review of the UN Counter-Terrorism Strategy, which was adopted by the General Assembly in September 2008.17 Finland has also continued its efforts to achieve an international consensus on a Comprehensive Convention on International Terrorism currently being drafted by the Ad Hoc Committee of the UN General Assembly. Counter-terrorism efforts have also been continued within the Council of Europe Committee of Experts on Terrorism (CODEXTER) by aiming to identify possible lacunae in international law and action against terrorism. Within this broad theme, two issues have been discussed: use of the Internet for terrorist purposes and the notion of cyber terrorism, on which the Committee adopted conclusions in 2007 and submitted them to the Committee of Ministers, as well 17. UN General Assembly Resolution 62/272 of 5 September 2008.

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as false identity information as a challenge to immigration authorities. In 2006 and 2007, the Committee was chaired by Ms. Marja Lehto from the Ministry for Foreign Affairs of Finland. In April 2007, the Council of Europe organised an international conference entitled ‘Why Terrorism? Addressing the Conditions Conducive to the Spread of Terrorism’. The Conference was an initiative of the CODEXTER and built on the UN Global Counter-Terrorism Strategy. The objective of the Conference was to address the factors and causes contributing to terrorism and to reinforce the implementation of the UN Global Counter-Terrorism Strategy. In October 2007 Finland hosted a regional workshop in Helsinki on regional cooperation in criminal matters related to action against terrorism. The workshop was organised in collaboration with the OSCE’s Action against Terrorism Unit, and the UN Office on Drugs and Crime (UNODC). The workshop examined, in particular, questions related to extradition of crime suspects and legal assistance in criminal cases from the perspective of international obligations. The workshop was attended by prosecutors, judges and other professionals working with criminal cooperation affairs in Finland as well as in other Nordic and Baltic Countries.18 The European Union has continued the implementation of the European Counter-Terrorism Strategy adopted in 2005. The Council of the European Union adopted conclusions on enhancing cooperation and exchanging good practice in the area of countering radicalisation and recruitment to terrorism in July 2008.19 The EU has also continued the in-depth dialogue with the US State Department Legal Adviser on the international law aspects of the counter-terrorism effort. The dialogue has contributed to a better understanding of how the fight against terrorism should be carried out with respect for the rule of law and international law, including international humanitarian law and human rights law. In 2007 Parliament adopted the Government Bill20 on the ratification of the Council of Europe Convention on the Prevention of Terrorism. The Convention entered into force in Finland in May 2008.21 The objective of the Convention is to reinforce the opportunities of the authorities to intervene in the preparation of terrorist acts. The Convention establishes as criminal offences acts, such as public provocation, recruitment and training that may lead to the commission of acts of terrorism. These criminalizations were implemented nationally by amending Chapter 34a of the Penal Code accordingly. 18. Press release 219/2007 of the Ministry for Foreign Affairs of 29 October 2007. 19. Economic and Financial Affairs Council meeting in Brussels, 8 July 2008, Press Release: ( visited 27 March 2009). 20. Government Bill HE 81/2007. 21. Finnish Treaty Series 48-49/2008.

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In 2008 Parliament adopted the Government Bill22 on the ratification of International Convention for the Suppression of Acts of Nuclear Terrorism, adopted by the UN General Assembly in April 2005. The Convention entered into force in Finland in February 2009.23 The main objective of the Convention is to prevent and suppress acts of nuclear terrorism. The provisions of the Convention were implemented by amending the relevant provisions of the Penal Code and the Nuclear Energy Act (Statute Book of Finland 990/1987).

6.2. Sanctions Combating Terrorism Targeted sanctions have raised certain questions concerning the due process guarantees and the rule of law. Finland has emphasized the need to ensure that fair and clear procedures exist for placing individuals and entities on sanctions lists and for removing them, as well as for granting humanitarian exemptions. Transparent, fair and effective procedures for listing and de-listing constitute an essential part of a legitimate sanctions regime. Measures to improve the EU counter-terrorism sanctions regime were adopted in 2007, based on the proposals prepared during the Finnish Presidency in 2006. In June 2007, a new permanent working party was established with the responsibility to examine proposals for listings and de-listings and to prepare the regular review of the list by the Council in accordance with Article 1(6) of Common Position 2001/931/CFSP. In this connection, a thorough review of the working methods of the Council working group was also conducted and new procedures for listing and de-listing decisions were introduced, such the provision of statements of reasons and informing the listed entities on the listing decisions.24 The European Court of First Instance and the European Court of Justice have in a number of recent judgements emphasized the need to improve the due process guarantees of individuals and entities subject to restricted measures. In its judgement of 3 September 2008 in the joined cases Kadi and Al Barakaat International Foundation v. Council25, the Court of Justice also expressed concerns in relation to the insufficient due process guarantees of the UN sanctions committee (the so called Al Qaida and Taliban Sanctions Committee). Finland attaches great importance to the decisions of the Courts, and is working to ensure their effective implementation. In 2008, a national working group was established on the initiative of the 22. Government Bill HE 80/2008. 23. Finnish Treaty Series 5-6/2009. 24. More on the establishment of the permanent working group and of it’s working methods, see for example doc. 10826/1/07 rev 1 of 28 June 2007, ( visited 27 March 2009). 25. Joined cases 402/05 and 415/05, Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities [2008] ECR I-06351.

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Ministry for Foreign Affairs to examine the possibility of establishing an administrative national mechanism for the freezing of terrorist funds that would be separate from the criminal investigation system and would complement the EU and UN asset freezing regimes. The working group concluded its work and submitted a report to the Minister for Foreign Affairs in February 2009. In its report, the working group concluded that the Finnish legislation does not fully comply with international obligations in all respects. There is a gap in the national implementation of sanctions imposed by the UN Security Council, as concerns the so-called EU internal terrorists, since by virtue of the division of competences laid down in the current EU treaty, a Union-wide administrative mechanism for freezing of funds cannot be applied to such persons and entities residing within the EU. Entry into force of the Lisbon Treaty would correct this situation, since the Treaty contains an article creating a uniform legal basis for the administrative freezing of funds of all persons and entities taking part in terrorist crimes. The working group therefore proposes that the need for a national administrative freezing procedure be reassessed once the fate of the Lisbon Treaty is known.26

7. Treaty Relations The Treaty of Lisbon amending the earlier EU and EC Treaties was signed by Finland in December 2007 and the Government bill27 on the ratification of the Treaty was adopted by the Parliament in June 2008.28 In 2008, the Ministry for Foreign Affairs commissioned an academic research project on the legal implications of NATO membership from the Erik Castrén Institute, University of Helsinki. The research report written by Research Fellow Juha Rainne was published in November 2008.29 The report focuses on the legal implications of Finland’s possible accession to the alliance. It covers the Finnish Constitution and other legislation as well as Finland’s international obligations.

7.1. Treaties which Entered into Force in Finland The compilation of treaties, which entered into force in Finland in 2007 and 2008 is included in the Appendixes to this report.

26. For more details, see press release of the Ministry for Foreign Affairs 60/2009 of 24 February 2009. 27. Government Bill HE 23/2008 . 28. Statute Book of Finland 599/2008. 29. Juha Rainne, ‘Legal Implications of NATO Membership: Focus on Finland and Five Allied States’ (The Erik Castrén Research Reports 24: Helsinki, 2008).

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7.2. Objections to Reservations Finland monitors actively reservations made to international human rights conventions as well as other international treaties. The Government of Finland has a well established practice in objecting to reservations deemed to be incompatible with the purpose and objectives of a treaty. On 14 September 2007 Finland objected30 to the reservation made by the Republic of Maldives upon accession to the International Covenant on Civil and Political Rights (Article 18). The Government of Finland has examined the reservation made by the Republic of Maldives to the International Covenant on Civil and Political Rights. The Government of Finland notes that the Republic of Maldives reserves the right to interpret and apply the provisions of Article 18 of the Covenant in accordance with the related provisions and rules of the Constitution of the Republic of Maldives. The Government of Finland notes that a reservation which consists of a general reference to national law without specifying its contents does not clearly define to other Parties to the Covenant the extent to which the reserving State commits itself to the Covenant and creates serious doubts as to the commitment of the receiving State to fulfil its obligations under the Covenant. Such reservations are, furthermore, subject to the general principle of treaty interpretation according to which a party may not invoke the provisions of its domestic law as justification for a failure to perform its treaty obligations. Furthermore, the Government of Finland emphasises the great importance of the right to freedom of thought, conscience and religion which is provided for in Article 18 of the International Covenant on Civil and Political Rights. The Government of Finland therefore wishes to declare that it assumes that the Government of the Republic of Maldives will ensure the implementation of the rights of freedom of thought, conscience and religion recognised in the Covenant and will do its utmost to bring its national legislation into compliance with the obligations under the Covenant with a view to withdrawing the reservation. This declaration does not preclude the entry into force of the Covenant between the Republic of Maldives and Finland. The Covenant will thus become operative between the two states without the Republic of Maldives benefiting from its reservation.

On 7 August Finland objected31 to the declaration made by the Republic of Tunisia to the Convention on the Reduction of Statelessness (Article 8). 30. Secretary-General’s Depositary Notification C.N. 895.2007.TREATIES-31 of 21 September 2007. 31. Secretary-General’s Depositary Notification 640.2008.TREATIES-2 of 10 September 2008.

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The Government of Finland has examined the declaration made by the Government of the Republic of Tunisia to the Convention on the Reduction of Statelessness. The Government of Finland holds the view that such a declaration seeks to limit the duty of the Republic of Tunisia not to deprive a person of its nationality if such deprivation would render him or her stateless to an extent not covered by the exceptions of Article 8 paragraph 3 of the Convention. The declaration therefore amounts to a reservation which restricts one of the essential duties of the Convention in a way contrary to the object and purpose of the Convention. The Government of Finland therefore objects to the declaration made by the Government of the Republic of Tunisia in respect of Article 8 of the Convention on the Reduction of Statelessness. This objection does not preclude the entry into force of the Convention between the Republic of Tunisia and Finland. The Convention will thus become operative between the two States without the Republic of Tunisia benefiting from the said declaration.

Annex I: Treaties which entered into force in Finland in 200832 Multilateral Treaties • Convention on the Reduction of Statelessness, 30 August 1961 (FTS 96/2008)33 • European Convention on Nationality, 6 November 1997 (FTS 93/2008) • Euro-Mediterranean Aviation Agreement between the European Community and its Member States, of the one part, and the Kingdom of Morocco, of the other part, 12 December 2006 (FTS 64/2008 • Council of Europe Convention on the Prevention of Terrorism, 16 May 2005 (FTS 48/2008) • Agreement between Denmark, Finland, Iceland, Norway and Sweden on Nordic cooperation in the field of secondary and occupational education, 3 November 2004 (FTS 43/2008) • Agreement on Maritime Transport between the European Community and its Member States, of the one part, and the People’s Republic of China, on the other part, 6 December 2002 (FTS 38/2008) 32. The lists in the appendixes include the conventions and agreements published in the Finnish Treaty Series (FTS). Information on the agreements not published in the FTS is to be found in the FTS in the form of ‘Notifications of the Ministry for Foreign Affairs’. 33. The date indicates the time of signature or adoption of the agreement and the number in brackets refers to the numbering of the FTS.

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• Agreement between the European Union and the United States of America on the processing and transfer of passenger name record (PNR) data by air carriers to the United States Department of Homeland Security (DHS) (2007 PNR Agreement) 26 July 2007 (FTS 18/2008)

Bilateral Treaties • Agreement between the Hong Kong Special Administrative Region of the People’s Republic of China and the Republic of Finland for the avoidance of double taxation with respect to taxes on income from aircraft operation, 19 November 2007 (FTS 124/2008) • Agreement between the Government of the Republic of Finland and the Government of the Republic of Moldova for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, 16 April 2008 (FTS 91/2008) • Agreement between the Government of the Republic of Finland and the Government of the Republic of Mauritius on the Promotion and Protection of Investments, 12 September 2007 (FTS 89/2008) • Agreement between the Government of the Republic of Finland and the Government of Mongolia on the Promotion and Protection of Investments, 15 May 2007 (FTS 86/2008) • Agreement between the Government of the Republic of Finland and the Government of the Republic of Belarus for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, 18 December 2007 (FTS 83/2008) • Agreement between the Government of the Republic of Finland and the Government of the Republic of Indonesia on the Promotion and the Protection of Investments, 12 September 2006 (FTS 81/2008) • Agreement between the Government of the Republic of Finland and the Government of Georgia for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, 11 October 2007 (FTS 75/2008) • Agreement between the Government of the Republic of Finland and the Isle of Man for the exchange of information relating to tax matters. Agreement between the Government of the Republic of Finland and the Isle of Man on the access to mutual agreement procedures in connection with the adjustment of profits of associated enterprises. Agreement between the Government of the Republic of Finland and the Isle of Man for the avoidance of double taxation with respect to enterprises operating ships or aircraft in international traffic. Agreement between the Government of the Republic of Finland and the Isle of Man for the avoidance of double taxation on individuals, 30 October 2007 (FTS 73/2008)

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• Agreement between the Government of the Republic of Finland and the Government of the Republic of Kazakhstan on the Promotion and Mutual Protection of Investments, 9 January 2007 (FTS 62/2008) • Agreement between the Government of the Republic of Finland and the Government of the Republic of Belarus on the Promotion and Protection of Investments, 8 June 2006 (FTS 57/2008) • Agreement between the Government of the Republic of Finland and the Government of the Republic of Poland on the Mutual Protection of Classified Information, 25 May 2007 (FTS 46/2008) • Agreement between the Government of the Republic of Finland and the Government of the Republic of Latvia on Mutual Protection of Classified Information, 17 August 2008 (FTS 33/2008) • Agreement between the Romanian Government and the Government of the Republic of Finland on cooperation concerning joint implementation and international emissions trading pursuant to the Kyoto Protocol to the United Nations Framework Convention on Climate Change, 17 December 2006 (FTS 25/2008) • Agreement between the Government of the Republic of Finland and the Government of the Republic of Italy on the mutual protection of classified information, 12 June 2007 (FTS 23/2008) • Agreement between the Government of the Republic of Finland and the Government of the Republic of Estonia on the Mutual Protection of Classified Information, 7 June 2007 (FTS 12/2008) Agreement between the Government of the Republic of Finland and the Government of the Hashemite Kingdom of Jordan on the Reciprocal Promotion and Protection of Investments, 1 November 2006 (FTS 6/2008) • Agreement between the Government of the Republic of Finland and the Government of Georgia on the Promotion and Protection of Investments, 24 November 2006 (FTS 4/2008)

Agreements with International Organizations • Agreement between the Government of the Republic of Finland and the Organisation for Joint Armament Cooperation (OCCAR) on the Protection of Classified Information relating to the OCCAR ESSOR Programme, 15 July 2008 (FTS 109/2008) • Agreement on the conditions applying to Finland’s participation in the European Secure Software Radio, ESSOR, 11 December 2007 (FTS 79/2008) • Seat Agreement between the Government of the Republic of Finland and the European Chemicals Agency, 28 June 2007 (FTS 10/2008)

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Annex II: Treaties which entered into force in Finland in 2007 Multilateral Treaties • Agreement between the Government of the Republic of Finland, the Government of the Kingdom of Norway, the Government of the Russian Federation and the Government of the Kingdom of Sweden on the Establishment of an International Barents Secretariat for the Cooperation in the Barents Euro-Arctic Region, 15 November 2007 (FTS 118/2007) • International Convention on Salvage, 28 April 1989 (FTS 106/2007) • Protocol on the Privileges and Immunities of the International Seabed Authority, 27 March 1998 (FTS 87/2007) • Council of Europe Convention on cybercrime, 23 November 2001 (FTS 59/2007) • Treaty between the Kingdom of Belgium, the Federal Republic of Germany, the Kingdom of Spain, the French Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands and the Republic of Austria on the stepping up of cross border cooperation, particularly in combating terrorism, crossborder crime and illegal migration, 27 May 2005 (FTS 53/2007) • International Health Regulations, 23 May 2005 (FTS 50/2007) • Agreement on cooperation in astrophysics, 26 May 1979 (FTS 47/2007) • Protocol on the privileges and immunities of the European Organization for Nuclear Research, 19 December 2003 (FTS 29/2007) • Agreement between the Denmark, Norway and Sweden on the educational trust fund of the arctic region of the Nordic countries, 18 December 2006 (FTS 18/2007)34 • Convention on the Protection and Promotion of the Diversity of Cultural Expressions 2005, 20 October 2005 (FTS 16/2007) • Universal Postal Convention; Final Act of the Universal Postal Convention; General Regulations of the Universal Postal Union, 5 October 2004 (FTS 10/2007) • International Convention against Doping in Sport, 19 October 2005 (FTS 3/2007) • Convention between the Government of the Republic of Finland and the Government of Canada for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, 20 July 2006 (FTS 1/2007) • Treaty between the Kingdom of Belgium, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the 34. Unofficial translation by the author.

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Italian Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, the Republic of Slovenia, the Slovak Republic, the Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland (Member States of the European Union) and the Republic of Bulgaria and Romania, concerning the Accession of the Republic of Bulgaria and Romania to the European Union, 25 April 2005 (FTS 114/2006) • Agreement between Denmark, Finland, Iceland, Norway and Sweden on the registration of the population, 1 November 2004 (FTS 95/2006)35

Bilateral Treaties • Convention between the Government of the Republic of Finland and the Government of the Republic of Armenia for the avoidance of double taxation and prevention of fiscal evasion with respect to taxes on income and on capital, 16 October, 2006 (FTS 119/2007) • Agreement between the Government of the Republic of Finland and the Government of the Slovak Republic on mutual protection of classified information, 14 May 2007 (FTS 116/2007) • Agreement between the Government of the Republic of Finland and the Government of the Kingdom of Denmark on the Reciprocal Holding of Stocks of Crude Oil and Petroleum Products, 11 April 2007 (FTS 103/2007) • Agreement between the Government of the Republic of Finland and the Government of the Republic of Chile on social security, 7 March 1997 (FTS 97/2007) • Agreement between the Government of the Republic of Finland and the Government of Australia for the avoidance of double taxation with respect to taxes on income and the prevention of fiscal evasion, 20 November 2006 (FTS 90/2007) • Agreement between the Government of the Republic of Finland and the Government of the United States of America for the Enforcement of Maintenance (Support) Obligations, 3 April 2006 (FTS 73/2007) • Agreement between the Government of the Republic of Finland and the Government of the Republic of Macedonia on cooperation and mutual assistance in customs matters, 14 June 2006 (FTS 68/2007) • Agreement between the Government of the Republic of Finland and the Government of Georgia on the Co-operation in the Development of Envi-

35. Unofficial translation by the author.

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ronmental Monitoring and Management Systems in Georgia, 14 June 2007 (FTS 66/2007) • Agreement between the Republic of Finland and the Kingdom of Norway on the maintenance of the national border between the countries, 27 February 2007 (FTS 56/2007)36 • Agreement between the Government of the Republic of Finland and the Government of the Federal Democratic Republic of Ethiopia on the Promotion and Protection of Investments, 23 February 2006 (FTS 41/2007) • Agreement between the Government of the Republic of Finland and the Government of the Dominican Republic on the promotion and protection of investments, 27 November 2001 (FTS 35/2007) • Agreement between the Government of the Republic of Finland and the Government of the Federal Republic of Nigeria on the Promotion and Protection of Investments, 22 June 2005 (FTS 33/2007) • Agreement between the Government of the Republic of Finland and the Government of the Republic of Armenia on the Promotion and Protection of Investments, 5 October 2004 (FTS 31/2007) • Exchange of notes constituting an agreement between the Republic of Finland and the Russian Federation concerning the opening of a border-crossing point at Kuusamo-Suoperä for international traffic, 19 November 2001 (FTS 28/2007)37 • Agreement between the Government of the Republic of Finland and the Government of the People’s Democratic Republic of Algeria on the Reciprocal Promotion and Protection of Investments, 13 January 2005 (FTS 8/2007) • Contribution Agreement between the Government of the Republic of Finland and the Palestinian Authority concerning temporary international mechanism, 12 January 2007 (FTS 5/2007) • Agreement between the Government of the Republic of Finland and the Government of People’s Republic of China on the reciprocal exemption from certain taxes concerning international air transport business, 26 September 2006 (FTS 116/2006) • Agreement between the Government of the Republic of Finland and the Government of the Republic of Guatemala on the Promotion and Protection of Investments, 12 April 2005 (FTS 107/2006)

36. Unofficial translation. 37. Unofficial translation.

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Agreements with International Organizations • Agreement between the Government of the Republic of Finland and the Andean Community on the installation phase of the co-operation in the Biodiversity Regional Program in CAN Member Countries Andean-Amazon Regions (BIOCAN), 18 June 2007 (FTS 62/2007) • Agreement between the Government of the Republic of Finland and the European Forest Institute on the Legal Status, Privileges and Immunities of the European Forest Institute and its Personnel, 22 December 2005 (FTS 14/2007)

Ius Gentium Association Ius Gentium Association, the Finnish society of international law, is a non-profit organisation founded in 1983 open to all who have an interest in international legal affairs. Our goal is to promote awareness and interest in international law, to support its study, teaching and research, and to spur lively and informed debates about international law in Finland and abroad. The Association seeks to be an active and easily accessible forum for the discussion of various international law related issues. The programme of events includes small colloquia, as well as larger seminars and conferences, with topics ranging from human rights and terrorism to international trade issues. To reach a broader audience, we publish the Finnish Yearbook of International Law in cooperation with Martinus Nijhoff, an imprint of Brill Academic Publishers. Membership in the Association is open for all those interested in global matters in general and in international law in particular – our members include diplomats, academics, legal practitioners, and students. Although most members have a legal background, other academic fields, in particular political and social sciences, are also well represented. If you would like to learn more about the Association, its events and publications, we invite you to visit our website or to contact us at the address below. Ius Gentium Association P.O. Box 208 FI-00171 Helsinki Finland www.iusgentium.fi [email protected]