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 to do so — because, over the long term, the goal of those who think that international law really means anything are those who want to constrain the United States.

Such a perspective may be based in part on a belief in US exceptionalism — the idea that peremptory norms do exist, but that they should not bind the US — which is inherently at odds with the rule of law.[2] (Yes, torture is absolutely wrong, but we are not prohibited from using it since we only do so for the right reasons.) Yet, such aversion to international law ignores the very real ways in which the existence of an international legal framework can advance the interests of states which adhere to it. Not only because, as Goldsmith and Posner argue, paying lip service to international legal norms may be a low-cost means of gaining considerable reputational benefits, but because the norms themselves can serve as a tool for expanding, rather than constraining, state power.

Joseph Nye, of Harvard’s John F. Kennedy School of Government, champions the idea that a country’s power is contingent not only on concrete indicators such as population size, GDP, or military strength, but also, to no small extent, on that intangible element of attraction — the ability to win other states’ cooperation through an appeal to shared values — which he terms “soft power”.[3] The importance of soft power, particularly for a country with such far-reaching global interests as the United States, cannot be overestimated. When the US asks China to relax its censorship laws to allow for the distribution of American movies, or asks Turkey to allow passage to US troops en route to Iraq, or asks Canada to acquiesce to new import duties on softwood lumber, the ability to persuade is often more important than the ability to coerce.

International relations no longer occur in the normative vacuum which existed 200 years ago. With the growth of international trade and communications technology, along with the proliferation of states and international organizations, relations between countries have increasingly become legalized through treaties and formal mechanisms of dispute resolution that permeate all spheres of interaction. Certain treaties, such as the Geneva Conventions and the UN Charter, establish normative frameworks that can claim near-universality, while the crystallization of jus cogens and customary law purports to exactly that. Within the last decade or so, international law has supplanted the philosophical debates and Cold War rhetoric that dominated the latter half of the 20th century, and has become not only the dominant, but in many respects the sole, discourse on inter-state normativity. The perceived legitimacy of the US’ wars in Iraq and Afghanistan, for instance, hinged not on politicians winning converts to the moral imperative of spreading democracy, but rather on lawyers’ persuasiveness in justifying military action on the basis of art. 51 of the UN Charter. In today’s world, soft power derives principally from states’ success at invoking international law in pursuit of their interests.

The formation of international legal norms is a process which itself reflects the balance of power, both hard and soft. While the principle of sovereign equality ostensibly grants all states an equal role in the development of international law, in practice some states exercise far more influence over the process than others. For instance, many areas of international law, such as jus in bello, were largely developed in the first half of the 20th century, when the number of states in existence was but a fraction of that which exist today; this means that much of the world, especially of the developing world, had little say in the development of such areas of law.

Another example of the uneven role of states in shaping international law can be seen in the last decade with the assertion of legislative competence by the UN Security Council under Chap. VII of the UN Charter, which gives an inordinate amount of power to the Permanent Five members. This was first seen in UNSC Resolution 1373, passed in a three-minute meeting two weeks after September 11, 2001, which effectively imposed anti-terrorism treaty obligations on all UN member states without their acquiescence.

As a final illustration of major powers’ influence in the formation of international law, a number of scholars have noted that jus cogens and customary law seem to reflect American legal culture to a far greater extent than that of other nations. For example, Alston and Simma observe that the rights enumerated in the US Bill of Rights are generally recognized as customary norms under international law (such as the right to due process), while many of the social rights provided for in the Universal Declaration of Human Rights (such as the right to free primary-school education) are not.[4]

Thus, not only is resort to shared legal norms an essential means of bolstering the US’ soft power, but the US has considerable ability to influence the development of such norms with a view to promoting its own interests (such as spreading democracy, or authorizing military intervention against dictatorial regimes). From a realist standpoint, it therefore makes a great deal of sense for the US to expand its cooperation and engagement with international institutions — perhaps even at the expense of some short-term interests — despite the blow that this would deal to US exceptionalism.

[1] Goldsmith, J. and Posner, E. The Limits of International Law (Oxford University Press, 2005).

[2] See Thimm, J. “American Exceptionalism: Conceptual Thoughts and Empirical Evidence” (Internationale Politik, 2007). <http://politikwissenschaft.tu-darmstadt.de/fileadmin/pg/Sektionstagung_IB/Thimm-American_exceptionalism.pdf>

[3] Nye, J.S., “The Benefits of Soft Power” (Harvard Business School Archive, Aug. 2, 2004). <http://hbswk.hbs.edu/archive/4290.html>

[4] Simma, B. and Alston, P. “The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles” (1988) 12 Aust. YBIL 82. <http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/ayil12&div=9&id=&page= >

Following the assassination of Egyptian President Anwar Sadat in 1981, Egypt has been under permanent state Emergency Law that has limited political expression and dissent. [1] On May 11, 2011, Egypt’s parliament, dominated by President Mubarak’s National Democratic Party, voted to extend the Emergency Law active since 1981 for two more years. Although the official reason for the extension was to curtail terrorism and drug trafficking, the Emergency Law effectively gives the government the right to arrest “people without charge, detain prisoners indefinitely, limit freedom of expression and assembly, and maintain a special security court .” [2] Michael Scheinin – the UN’s special representative on human rights and terrorism, who went to Egypt in 2009 to document its human rights record – says that terrorism according to Egyptian law includes any act that is a “threat or intimidation with the aim of disturbing the peace or jeopardizing the safety and security of society.” [3] Such a broad definition of terrorism captures any activity causing unrest, giving much discretion and room for interpretation to the police.

The Constitution of Egypt itself has provided President Mubarak a legal framework for his monopoly on state power. Commentators have suggested that the “Egyptian struggle is at its heart, constitutional in nature.” [4] First off, nothing in the Constitution imposes a limit on the number of terms a President may serve, effectively giving Mubarak the ability to stay in power for the last 30 years. [5] Article 76 of the Egyptian Constitution provides that the President is to be nominated by Parliament with the endorsements of 250 elected officials, including 65 members of the lower house, the People’s Assembly. [6] Mubarak’s National Democratic Party overwhelmingly dominates the People’s Assembly, leaving little possibility for candidates of other political parties to be nominated.

The Constitution also gives extensive powers to the President, who alone can dissolve Parliament and call new elections. [7] Harvard Professor Tarek Masoud argues that the current Parliament is unsuitable for establishing any sweeping changes to the Constitution. A new Parliament would have to be formed, the problem being that only Mubarak would have the authority to call for new parliamentary elections. [8]

If Mubarak resigns, the next in line according to the Constitution would not be current Vice President Omar Suleiman but the Speaker of the People’s Assembly, Fathi Surour, according to Article 84 of the Constitution. [9] Many Egyptians consider Surour to be loyal to President Mubarak. As soon as the sitting President is permanently out, emergency elections must be held within 60 days to determine the new President, yet the Constitutional amendment procedure cannot be completed within this 60 day time period according to Article 189. [10] Therefore, as the Constitution cannot be amended within these 60 days, the elections would still go through the process defined under article 76, which of course strongly favours Mubarak’s NDP party.

If however, Mubarak declares himself “temporarily” unable to fulfill his presidential duties, then under Article 82 of the Constitution, the Vice President will take over his role. [11] The disadvantage of such a situation is that the Vice President cannot call for any amendments to the Constitution during his tenure, nor could he dissolve Parliament. [12] On the plus side however, the hasty election process that must be held within 60 days is not triggered and the People’s Assembly can choose to amend the Constitution at its own initiative.

Therefore, Mubarak’s immediate ousting from power would not be a desirable solution because there would be no constitutionally valid way of holding the fair and free election the Egyptian people want. The opposition groups can either discard the current Constitution completely, or negotiate with Mubarak to dissolve Parliament and have a new Parliament amend the Constitution according to the legal process set out in the Constitution. Although the need for constitutional reform that strengthens the rule of law and ensures a multiparty democracy in Egypt is strong, it should not be carried out in an extra-legal way that violates the rule of law in the first place.

If a new government were to discard the existing Constitution altogether, it would have to establish a new legal order from scratch. It would need a lot of time to negotiate with the various political factions in the country in order to come up with a new Constitutional document. Therefore, discarding the current Constitution would create a legal void which could produce unfavorable consequences in a developing country like Egypt.

A Constitutional reform that sticks to the current legal process can still ensure a smooth transition and ensure a fair elections process in September 2011. Although it may seem paradoxical to stick to the process dictated by a Constitution that many see as inherently flawed and biased towards Mubarak’s government, it would nevertheless help to “entrench and deepen the constitutionalist principle that has been eroded” under the current government. [13] To let Mubarak stay temporarily is the price that should be paid to guarantee an orderly transition and respect for the Rule of Law.

[1] Michael Slackman, “Egyptian Emergency Law Extended for 2 Years” The New York Times (May 11 2010), online: The New York Times .
[2] Ibid.
[3] Ibid.
[4] Nathan J. Brown, “Is it Time to Send in the Lawyers?” Foreign Policy (7 February 2011), online: Foreign Policy .
[5] Jonathan Wright, “What’s at Stake in talks on Egypt’s Constitution” Reuters (7 February 2011), online: Reuters.
[6] Ibid.
[7] Tarek Masoud, “An Exit Plan For Mubarak” The New York Times (3 February 2011), online: .
[8] Ibid.
[9] Clark Lombardi, “Should He Stay or Should He Go: Negotiation as the Price of Constitutional Legality in an Egyptian Transition” Comparative Constitutions (2 February 2011), online ComparativeConstitutions .
[10] Ibid.
[11] Ibid.
[12] Ibid.
[13] Supra note 7.

The Khadr ordeal presents some of the difficulties faced at the interface of domestic law, international law and international affairs. First, the decision reignites the question of whether the Charter has extraterritorial application to Canadian officials abroad – in this case, those who conducted interviews in Guantanamo. Second (and what I find to be the more troubling matter), the decision raises the question of how Canada should respond to Charter violations that it commits abroad. The meekness of remedy issued in Friday’s decision hugely frustrates attempts to see Canada’s international human rights obligations crystallize in concrete corrective measures.

I. Extra-territoriality of the Charter

As explored in a recent blog posting, the Supreme Court in R. v. Hape opined that the Charter does not generally apply extraterritorially, as any such application may interfere with the sovereignty of other nations. The exception to this rule was stressed in Khadr v. (Canada) Minister of Justice, 2008, (“Khadr 2008”), where the Court opined that “if Canada was participating in a process that was violative of Canada’s binding obligations under international law, the Charter applies to the extent of that process” (para. 19). The exception granted in Khadr 2008 remains very limited in scope, as it speaks strictly to Canada’s participation in acts abroad that vitiate Charter principles. This limited scope was accepted in Khadr 2010. Khadr 2010 seems to be continuing the courts careful extension of the Charter extraterritorially, as has been occurring for the past decade.

II. Remedy – Declaring a Charter Violation

The remedy in Khadr 2010 was purely declaratory, overturning the ruling by the lower courts that Canada must ask the United States for Khadr’s repatriation. The decision comes as a huge blow to human rights enthusiasts, though not necessarily as a shock, as the Supreme Court expressed at the November hearing of the case its deep reluctance in overstepping the powers of the executive.

From the perspective of Canada’s international obligations concerning human rights, the Supreme Court’s position on the remedy is arguably problematic for two reasons. First, a purely declaratory remedy hugely frustrates the Court’s recent efforts to assert that the Charter applies extraterritorially in pursuing higher principles of justice. Canada prides herself as a champion of human rights, and to this effect has ratified such conventions as the Convention on the Rights of the Child and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Federal Court of Appeal in Khadr 2010 noted Canada as being a signatory to Convention Against Torture and asserted that the prohibition of torture should inform the scope of Section 7 of the Charter (para. 52). Canadian law would be falling hugely short of its own international human rights obligations if the human rights infractions that it committed abroad did not necessitate any concrete action beyond a mere declaration. Unfortunately, Khadr seems to have only benefited from the latter.

Of course, the obvious counter-argument – and the argument squarely pursued by the Supreme Court in Khadr 2010 – is that courts need to be very wary about overstepping the prerogative powers of the executive, “including the right to speak freely with a foreign state on all such matters” (para. 33). Thus, on the question of repatriation, the Court cautioned that “the impact on Canadian foreign relations of a repatriation request cannot be properly assessed by the Court” (para. 43). This approach accepts as a default rule that only the executive and not the courts can decide how to exercise executive powers (though allowing certain discretion by the court in exceptional circumstances). While this separation of powers is a vanguard of western constitutional democracies, I would argue that a Charter breach amounting to a breach of Canada’s international human rights obligations should create a default rule in favour of correcting that violation. Underlying this balancing act is the relative weights that are given to differing (and in this case conflicting) Canadian values. While the outcome of a request for repatriation is uncertain, it is the most Canada can do in the current situation. Such an approach would reverse the burden of proof and require the government, in seeking to uphold its decisions, to show that infringement of its prerogative power would be damaging beyond a certain threshold.

I admit to the tenuousness of this argument, as it seems to fly in the face of the separation of powers. However, the separation of powers doctrine could benefit rather than lose from being informed by international human rights. Clouded government decisions would not be given total immunity when the principles of life, liberty and freedom are at stake.

What has been most bewildering about the president’s absence is the subtle yet apparent lack of leadership that continues to cloud Africa’s most populated nation. Legally, the January 13th ruling was supposed to put the country back on track. Yet, the judgement has  failed to soothe tempers. As recently as January 27^th 2010, the Nigerian cabinet and Senate continue to be at odds regarding who is governing their country. The question seems to remain: how do we account for the governing activity from November 2009 to now? In particular, what of the 2010 budget that is being negotiated in the president’s absence? It is true that in the time Yar’Adua has been away, Nigeria has suffered religious unrest in the Niger Delta and has faced questions about its national security in the wake of a terrorist attack by a Nigerian national. However, I focus in this article on the budget because of its susceptibility to corruption.

Brewing corruption?

Section 81 of the Nigerian constitution requires that “the President shall cause to be prepared and laid before each House of the National Assembly at any time in each financial year estimates of the revenues and expenditure of the Federation for the next following financial year”. In Yar’Adua’s absence, progress on the country’s 2010 budget has stalled. Jonathan, as a member of the executive branch of government has attempted to move the debate forward. While this act of flawed heroism may deliver the country’s new budget, Jonathan has limited or no legal authority to move the budget forward. Essentially, his authority is still mandated by an absentee president who has yet to cede power to him. In a country that is in throes of fighting corruption, this is a problem. The nebulous circumstances in which the 2010 budget is being formulated raises serious questions about the expenses included in the document, and subsequently, how to allocate accountability for questionable expenses.

International stage

As corruption increasingly becomes part of an international dialogue, it attracts universal censure without universal definition. Nigeria is party to the UN Convention against Corruption. In a seeming acknowledgement of cultural relativism, the document provides no firm definition for corruption but instead imparts a broader moral statement on the effects of corruption. Although the document successfully isolates aspects of corruption such as bribery, the absent definition leaves gaps in place. Admittedly, these gaps allow countries to tailor concepts of corruption to their society. However, failure to commit to a unified understanding of the concept very much leaves States discussing the light while sitting in the dark. The Convention forces States to collectively censure an act they have not yet collectively imagined. As David Kennedy rightly articulates, “however difficult it might be to define “corruption,” in polite society one must be opposed to it”.

In an increasingly globalized world, the effects of corruption bleed across borders. A broad but universal definition could thus serve as the foundation in a crusade against global corruption. Instead of a relaxed deference to cultural relativism, perhaps a more successful approach would be to re-associate a universal principle – guarded by all cultures – with corruption. One such principle would be democracy. By democracy, I speak of the notion that the power of governing bodies is inherent in the political mandate given by the people. Democracy is universally understood as a system of checks and balances between the government and the people. Linking the concept of corruption to the principle of democracy would allow a definition to subtly pierce the veil of cultural relativity.

Central to the idea of democracy is accountability. It is this lack of accountability with regard to the 2010 budget that has left Nigeria susceptible to corruption. Continued reticence to marry democracy and corruption stalls the progress of states trying to fight corruption. Many corruption opponents including Transparency International point to democracy as a source of stability through which control mechanisms for corruption can be put in place. I push further in suggesting that principle of democracy could be a possible point through which States’ may more adequately unite around a Convention defining their cause – corruption. The Nigerian example is emblematic of the inherent relationship between democratic accountability and corruption. Of course, some will say that the Nigerian situation is unique. That may be true, but Canadians today will tell you that an absent branch of government is not so unusual.

Authoritarian Leadership

This blog is certainly not the forum to engage in an ideological debate. Moreover, prorogation of Parliament is not unusual. Since Canadian Confederation, the Parliament has been put on hold 105 times. However, it is the timing and circumstances of this prorogation which has drawn nationwide criticism. While this is not a problem under Canadian domestic law, it is arguably contrary to “soft” international law. In my previous entry I came to the conclusion that there was, at the very least, the existence of some soft international law requiring the principles of democracy to be promoted.

By proroguing Parliament, University of Toronto constitutional scholar Peter Russell argues, Prime Minister Harper’s leadership has taken “an authoritarian direction…minimiz[ing] his exposure to critical review.” In doing so he killed 36 government bills, and five more Conservative senators took their seats allowing the Tory government to take control of Senate committees. In pausing the legislative process and halting governmental committees from operating, Harper has put the internationally-guarded democratic process at risk.

What makes the prorogation even more internationally relevant and reprehensible is that it came right as the government was facing heat from parliamentary committees about whether Tory officials had knowledge that detainees handed over by Canadian troops in Afghanistan to local authorities were to face torture.

Breaching a Duty to Investigate and Punish?

Regardless of Harper’s reasoning for proroguing Parliament (i.e. for Canadians to focus on the upcoming Olympics), it has the effect of interfering with the investigation of those who may have had knowledge of the torture of detainees in Afghanistan. Such an investigation could lead to the discovery of breaches of the UN’s Convention Against Torture. While the investigation will resume come spring, it is uncertain whether the delay could harm the process.

In the Valesquez Rodriguez case, the Inter-American Court of Human Rights held that States have an obligation to investigate violations of human rights treaties, such as the Torture Convention. By effectively interfering with the committee that was investigating the matter in Canada, this requirement may have been breached.

While these links could be seen as somewhat of a stretch and while the prorogation will attract political, rather than legal criticism, these relatively soft contraventions of international legal principles makes Harper’s decision even more troublesome.

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. However, sovereignty, like many other principles, is subject to change. A new understanding of sovereignty following the end of the Cold War saw the international community intervene often through the Security Council. Today, sovereignty is threatened to be diminished even further as States question the legality of intervention without explicit Security Council authorization.

On the treaty level, article 25 of the ICCPR is often cited as a source in support of the right to democracy. It gives citizens the right to take part in genuine and periodic elections (25(b)). While the Covenant predates 1989, scholars relied on it in the 90s to establish the democracy principle. However, there are some States which have ratified the Covenant but still do not have veritable electoral democracies today. Nevertheless, through the ICCPR and other human rights treaties, the international community has made a commitment to offer individuals the right to choose by whom they will be governed.

A second source for this right is found in UN General Assembly Resolutions. While they do not represent international law per se, they can form opinio juris – a necessary aspect of customary international law. Amongst the various relevant resolutions, Resolution 55/96 (adopted in 2000) calls upon states to promote democracy. Niels Petersen, a Senior Research Fellow at the Max Planck Institute for Research on Collective Goods, Bonn, argues that the resolution does not oblige states to achieve democracy itself but rather to take steps towards democracy. The focus is on the process and transition rather than the end result.

Some regional organizations show a commitment to the principle of democracy. Democracy is firmly entrenched in the constitutive documents of the EU and of the Organization of American States. Moreover, the 2000 Constitutive Act of the African Union promotes democratic principles and institutions as a paramount purpose of the Union.

A final source in support for a democratic principle in international law comes from interventions done in order to implement democracy. Some unilateral American interventions have been condemned by the international community and as such do not offer solid ground from which to establish the principle. However, collective interventions done with Security Council authorization offer further support for the existence of the right. Petersen offers Resolution 940 as an example of the Security Council effectively restoring the internal order in Haiti, while using the guise of international peace and security. A second example given is the ECOMOG intervention in Sierra Leone, done in the name of democracy, which received ex-post facto SC authorization (Resolutions 1132 and 1156).

Since the wall has fallen, there seems to be some existence of a democratic principle within international law. A concern for state sovereignty, as Petersen argues in his dissertation, does however curb this right to a focus on the process rather than the actual result. Twenty years after East Germans flowed freely into West Berlin, one must wonder whether the existence of an obligation to democratize will be the blueprint for Korean reunification.