Why promulgating international law is a key US interest

Political realists tend to be wary of international law, seeing it as an artificial and foreign encroachment on domestic sovereignty. Goldsmith and Posner argue that states’ commitment to international law is illusory; states will only comply with any particular provision of international law as long as their self-interest so warrants, and will abandon it as soon as this ceases to be the case.[1] Such views are especially prominent in the US, where constitutional obstacles and political conservatism have kept the US from playing as active a role in the international legal order as one might expect for a country of its stature. For instance, the US is one of only two countries (along with Somalia) that has not ratified the Convention on the Rights of the Child, and one of only three countries (along with Sudan and Israel) to have withdrawn its signature from the Rome Statute of the International Criminal Court; both are major treaties which the US itself played an active role in drafting. There has even been sporadic (if mostly marginal) talk over the years of withdrawing from the United Nations.

US conservative opposition to international law can best be summarized in the words of John Bolton, former ambassador to the UN:

It is a big mistake for us to grant any validity to international law even when it may seem in our short-term interest

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Is the Pedestal-ing of the “Rule of Law” Cause for Concern?

The “rule of law” has been put on a pedestal in international political and development discourse. No other “idea” (I am not quite sure what it is) shares its privileged place in our legal imagination. No other idea, Brian Tamanaha says, has achieved such a “global endorsement”.[1] Thomas Carothers laments that:

One cannot get through a foreign policy debate these days without someone proposing the rule of law as a solution to the world’s troubles.[2]

More mental energies need be expended to put the “rule of law” in its place. Internal tensions and ignored controversies need to be better exposed. To begin, we should adopt the most formal, ‘thinnest’ understanding of the rule of law: that laws ought to be prescribed, forward looking, written and made public, relatively clear, non-conflicting, and that adjudicative forums ought to be accessible and impartial.

Understood that way, the ‘rule of law’ is an end-point. It is not a contained principle but a set of general prescriptions that are desirable because of what they do and afford to legal subjects. A legal system that adheres to formal rule of law prescriptions affords individuals the ability to make proper self-regarding decisions, because the consequences of potential courses of action are more ascertainable. Firms don’t make hallowed “life choices”, but that same certainty and stability may induce firms to invest or transact where…

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Les droits de la personne sont-ils vraiment un “concept occidental”?

Les droits de la personne sont-ils seulement une expression moderne des ambitions impérialistes de l’Occident? Sont-ils une façon détournée de permettre aux pays occidentaux d’imposer leurs valeurs et leurs perceptions ? Devrait-on s’en méfier comme des représentants du néo-colonialisme? Manquent-ils de légitimité?

Je ne remets pas en question que l’application des droits de la personne puisse soulever des discussions et des désaccords. Je crois qu’il va sans dire que le concept de « liberté » ne représente pas exactement la même chose pour tous les habitants de la planète. Par contre, est-ce que quelqu’un s’est déjà prononcé contre la liberté? …Et si quelqu’un le faisait n’userait-il pas pour ce faire de sa liberté d’expression?  Les droits de la personne ne sont pas que des concepts juridiques, ils représentent des réalités bien concrètes.

Sans s’étendre dans l’analyse de chaque « droit », il est préférable de tenter de circonscrire le débat aux droits fondamentaux, aux droits qui peuvent trouver une représentation ou une autre dans diverses cultures, mais qui demeurent présents dans les systèmes de valeurs. Pour partir de droits très généraux, voici ma liste[1] : la liberté, l’intégrité, la dignité, la vie. Ces droits en englobent de nombreux autres, mais leur interprétation dépendra des choix culturels.

Il est important de revenir à l’objectif fondamental des droits de la personne : assurer un respect à la dignité de chaque être humain, donner une valeur juridique…

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History and the International Rule of Law

The pro-democracy protests surging through the Middle East in recent weeks have left many in the West wondering why more isn’t being done to help protect protestors from violent repression, or push dictators from office. Put more simply, to the extent that Arab dictators are the evil galactic empire in Star Wars, why can’t the West play the role of the ewoks – helping the rebel alliance overthrow tyranny when they need it the most? Why can’t international law be like the eagles in Lord of the Rings, swooping in at the last minute to save protestor-Sam and Frodo after they cast Gaddafi’s ring of power into mount doom – using the opportunity when his shield generator was destroyed and blocking his killing curse because it turns out they were the master of the Elder Wand all along? [Note: spoilers appear in the preceding paragraph]

But what do international law and the Arab protests have to do with books and movies about an orphan raised by his uncle setting off on a quest to destroy an evil lord, guided by a wise old wizard (yes, the plots are all the same)? Well, the point is that many observers feel like “something should be done” to help save the heroes from violence at the last minute – and there is often a hazy feeling that international law can fill this role.…

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I’ve Grown Accustomed to Her Law

Have you ever found yourself visiting someone else’s home, and upon entering, removing your muddy shoes at the door – even though you weren’t asked to? A trivial nicety perhaps – or an APPALLING DEGRADATION OF YOUR PERSONAL FREEDOMS? Shouldn’t I have the right in a free society to wear my disgusting footwear wherever I want? If someone invites me into his home, he should either make it clear that the invitation is conditional on my acceptance of certain terms and conditions (such as removing my street shoes), or accept that I can wear whatever I want. In other words, restrictions on my personal freedom should only arise through some sort of explicit consensual agreement.

The same could be said for tipping in restaurants; I never agreed to pay an additional, discretionary surcharge on top of the price of my meal, so why should I be bound to do so? In this sense, I don’t think it’s unreasonable to say that every restaurant is like a Stalinist regime (“in Soviet Russia, restaurant eats you!”). I could continue with more examples – and I will. Why do I have to greet people by smiling and shaking hands (or even “faire la bise”), instead of my preferred greeting: staring intensely at one another in silence for several minutes? It’s as if my personal interactions are regulated by some invisible totalitarian system.

It’s not…

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Legal Pluralism – A Primer

A number of my previous blog postings made extensive reference to the buzzword “legal pluralism” which one finds abound in contemporary legal literature. Instances of legal pluralism can be found in the recent debate on faith-based arbitration in Ontario, in the Beth Din courts of New York, and in the family law structure of the Philippines.[1] A discussion on the very term “legal pluralism” is important so that its underlying assumptions can be uncovered and scrutinized rather than passing the relevant discussion unnoticed.

I. Defining Legal Pluralism

At its core, the concept of legal pluralism serves two purposes. The first purpose is to discredit the doctrine of legal centralism. Griffith’s seminal paper on legal pluralism defined the ideology of legal centralism as a claim that “law is and should be the law of the state, uniform for all persons, exclusive of all other law, and administered by a single set of state institutions”.[2] The state thus holds a monopoly over the administration of law, and is the sole source of legitimizing authority as to what constitutes “law”. Legal centralism follows a liberal conception where “state institutions operate according to strict principles of equality and neutrality”,[3] based on the assumption that state law is logically coherent.[4] According to legal pluralists, legal centralism is conceptually parasitic to the development of descriptive theories of the…

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Non-Governmental Organizations: some new (very muscular) kids on the block

Non-Governmental Organizations (“NGOs”)[1] play an increasingly important role in the moulding of new international policies and their influence has grown dramatically in the last couple of decades[2]. The activity of NGOs has also become ever more international in nature,[3] as globalization has both created and revealed international issues which require the attention of the international community. Increasing international awareness of fields like human rights and environment, the establishment of powerful international organizations such as the World Trade Organization (WTO) together with improvements in sectors such as telecommunication and transportation, have all joined together and have turned the activities of international NGOs into living reality. Although not yet fully recognized as subjects of international law[4], NGOs are considered today as new emerging players in the contemporary international legal system[5].

The rising influence of NGOs brings about many questions and debates, mostly concerning democracy and representation. I would however, like to focus on another problem, one which is less of legal nature and more related to narrative, power and appearance. I would like to refer in this post to the fact that NGOs reputation as objective, impartial “watchdogs” may be improperly used by political actors and other agenda driven bodies. Political agendas, in my view, are not “wrong” and should not be excluded from the activity of NGOs. Politics and agendas are a legitimate part…

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The Fall of the Wall and the Principle of Democracy

Freedom lovers celebrating the 20 year anniversary of the fall of the Berlin Wall were shocked when faced with a New Berlin Wall a few days ago. U2’s concert in Berlin on November 5^th came with massive barriers to block the view of those without one of the free tickets. Restricting mobility, excluding certain people from a free concert and building a wall in Berlin challenges the very democratic principles which prevailed in this city some time ago. The New Berlin Wall and the always present question of the division along the 38^th parallel of the Korean peninsula brings up the issue of how international law has changed since November 9^th, 1989 – in particular, whether there is a right of democratic governance.

The fall of the Berlin Wall stands as a symbol of democratization, a culmination of a sweeping force that brought many European communist governments to an end. As the boundary between communism and democracy, restriction and supposed freedom came down, the question of the right to democratic governance in international law arose.

As a starting off point, the ICJ in its 1986 Nicaragua decision held that international law did not have any customary norms regarding internal forms of government. Such a view is consistent with the fundamental (read: out-dated) principle of sovereignty – the one which finds its roots in the Peace of Westphalia.…

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Somalian Pirates We!

In the battle against the ever-increasing threat of piracy off the coast of Somalia, a court has finally entered the fray. The court in question is Dutch, and in a recent decision stepped in to prevent a 14-year old girl from sailing off on her own to join the Somali pirates. Typically, the girl claimed she only wanted to break the record for the youngest solo circumnavigation of the world by sail. The truth however is painfully obvious: under the influence of torrent websites and Johnny Depp, youngsters from around the world are unable to resist the romance of piracy, and are setting sail to Somalia to sign up.

Striking a blow against Somali piracy, the momentous Dutch decision responded to a simple question: with no credible Somali government, who else was going to do it? And why shouldn’t a country enforce laws for someone else – look at Belgium’s fancy “universal jurisdiction” law. These questions go to a problem at the heart of public international law today: the “law is power” conundrum. In private international law, states in recent history have been moving further and further from a power-based model towards one founded on international comity. Globalisation rhetoric would have us believe that public international law is doing the same, but the Somali piracy issue belies this notion.

Somalia today, along with a handful of other places…

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