Author: JanKlabbers

by JanKlabbers

For those of us living in the US, it is sometimes difficult to realize that interesting international legal events may also occur elsewhere; for instance, in the UK. Yet, times in the UK are very interesting indeed. This week alone the newspapers were filled with reports on the questioning of senior UK Foreign Office lawyers concerning the legality of the 2003 invasion of Iraq (nutshell: they thought it was illegal; the attorney-general wavered a bit, and their political taskmasters went ahead anyway). Hopefully, you’ll find the link to one of the many stories here: http://www.guardian.co.uk/uk/2010/jan/26/chilcot-inquiry-iraq-invasion-lawyers.

Second, the UN’s special rapporteurs on terrorism and human rights and on torture (Martin Scheinin and Manfred Nowak, respectively) reported that the UK may well have been engaged in acts of torture in connection with the proclaimed war on terror. The link: http://www.guardian.co.uk/world/2010/jan/27/britain-complicit-possible-torture-un.

While others might use the opportunity to engage in all sorts of ironic statements involving words such as birthplace and Rule of Law, I shall refrain from doing so (I learned my irony lesson last week…). Perhaps though there is a minor lesson here for all those who so warmly welcomed the ‘legalization’ of global politics a decade ago: maybe the legalization of world politics has some distance to go still. That is not to embrace simplistic realism of the Goldsmith/Posner variety, but it is to suggest that the creation of all sorts of nice courts and tribunals and increased rule-density remain ineffective unless people and the institutions they run are somehow keen to actually implement those rules and render those courts and tribunals effective, even when politically inexpedient, or when the interests of their voters and businesses are not directly at stake. Judging by the UK experience, there seems to be little reason to be overly hopeful.

by JanKlabbers

This morning I had the distinct displeasure of being woken up by a phone call coming in on my Finnish cell phone, around 6 a.m. The caller turned out to be a Helsinki-based energy company, which started to promise me all sorts of cheap energy until I pointed out that I was currently residing in New York, that it was 6 a.m., and that I was not too happy at being called at such an indecent hour. Cold calling: one of the many, many delights of global capitalism, and typically always done at the most unwelcome moments. This must have been the 5th or 6th time a call came in at night since I moved (temporarily) to New York a few months ago, and a particularly memorable earlier occasion involved a crowded classroom in Geneva, a high-strung over-enthusiastic salesperson speaking all-too-rapid Finnish, and a highly bewildered me.

Unable to get back to sleep, I picked up the book on my table (the fine volume on constitutionalism edited by Jeff Dunoff and Joel Trachtman, ‘Ruling the World? Constitutionalism, International Law, and Global Governance’), and started to read Matthias Kumm’s lengthy contribution to that volume: ‘The Cosmopolitan Turn in Constitutionalism: On the Relationship between Constitutionalism in and beyond the State.’ About two hours later – I did say it was a lengthy piece – I was in a good mood, almost good enough to return the energy company’s call and thank them for waking me up so early, because Kumm’s piece is truly excellent: one of the best, and most useful, pieces I have read in a while.

Kumm’s main proposition is that all the talk of global constitutionalism actually is sensible, even in the absence of a written global constitution or constitution-like institutions. Instead of suggesting that global constitutionalists got it all wrong, he adopts the reverse stand: the domestic constitutionalist paradigm is mistaken, because it unduly restricts constitutionalism to the state. Cosmopolitan constitutionalism, as he calls it, is not only normatively desirable (this is a proposition quite a few international lawyers would intuitively accept), it is also descriptively superior. It is, in Kumm’s rendition, able to describe more accurately what is going on, e.g. when domestic courts find inspiration in international law or even apply it without much further ado but also, intriguingly, when they refuse to do so: Kumm actually makes the ECJ’s decision in Kadi look sensible and attractive to an international lawyer. While I’m not sure I would accept his analysis in all its detail, Kumm is to be congratulated on having written an excellent piece, making a thought-provoking yet plausible argument and doing so in a nicely combative style.

Still, one nagging question remains: can cosmopolitan constitutionalism protect me against cold calling at 6 a.m when I happen to be abroad? I realize, 6 a.m. in New York is 1 p.m. is Helsinki, but even so: why should I require protection to begin with? Why not insist that cold calling can only take place with the consumer’s explicit permission? Put in more general terms: cosmopolitan constitutionalism may help keep public power in check, but maybe that is effectively only a rearguard battle. What is sobering about all the writings about global constitutionalism these days (and my own are no exception) is the realization that very little attention is being paid to the role of private power. Maybe that is because we collectively think that constitutionalism somehow has to do with keeping public power in check and has nothing to do with private power, but perhaps this too is a proposition that would warrant further scrutiny. And maybe, just maybe a constitutionalist frame of mind should also be applied when it comes to organizing the global economy: the utility of cosmopolitan constitutionalism might be limited if a Thatcherite global economy is left untouched. In addition to seeing Mr Kadi’s right to property protected, perhaps the protection of other kinds of economy-related rights would make sure that we could all get a decent night’s sleep.

by JanKlabbers

Over the last few days I learned a valuable lesson: irony and satire do not work. I thought my contribution on soft statehood was written with my tongue so far in my cheek that it risked coming out of my ear; I thought I had piled on the layers of irony so richly that had my contribution been a pastry, it would have been considered a health-hazard. Alas.

Professor Anderson can rest assured: there is fairly little risk just yet of him transmogrifying into me, or the reverse. What I had hoped to accomplish was to demonstrate by means of what I held to be the obviously silly notion of soft statehood, that softness and hardness in law are rarely, if ever, a good idea. This requires some explaining. For academic (social science) purposes, classifying states as harder or softer may make perfect sense – part of what academics do, after all, is classify, rank, name, and categorize their objects of study. In this context, it may make perfect sense to claim that Canada, despite not having a head of state of its own (I’ll stick to this; otherwise I might also have to claim that Chechnya has a head of state of its own, who just happens to reside in Moscow and is called Medvedev), is more of a state than, say, Belgium. And depending on what exactly is measured, the reverse may be true too: on some counts, Belgium may perhaps be considered more of a state than Canada.

Likewise, the ethicist (or moralist) may well claim that certain states do better on some ethical index than others, and thus might be more deserving of applause than those others, or less susceptible to foreign interventions, or whatever. In sum, both the social scientist and the ethicist may well engage in grading statehood and come up with descriptions in which some states are considered harder than others. It is probably no coincidence that the references included in the comments to my original piece were references to the work of a philosopher (Buchanan) and a political scientist (Keohane).

But in law, as a prescriptive matter, this is problematic. For one thing, a category of soft statehood may come to provide other states with an all too easy excuse to intervene. But that’s not all: a host of practical problems would ensue. What to do, for instance, with passports issues by a soft state (and recognized as such)? Would two people from that soft state, being married, be able to travel as a married couple, or would their marriage not be seen as real enough because they only come from soft, albeit recognized, state? Would soft states be admitted to the UN (they might still be considered to meet the requirements of article 4 of the Charter) and if so, would they be given softer chairs to sit on? Or would the chairs be harder, so as to underline the softness of their occupants? (Oops: irony alert.)

Oh well. Long story short: it seems to me that the invisible college of international lawyers often runs the risk of confusing academic classification or ethical argument with the normative role of law. As Kal Raustiala pointed out earlier this month on Opinio Juris, law is a formal category, which can only operate in binary fashion. Behaviour is either legal or illegal; an instrument is either binding or non-binding; and a state is either a state, or is not a state at all but something else. Anything else confuses law for either descriptive social science, or ethical subtlety. It is tempting to do so, of course, because doing so would seem to make law all that more nuanced, but law, as Prosper Weil suggested in his classic 1983 AJIL article on relative normativity, has no business being subtle. Instead,. its business is to translate everyday nuance into a workable system, something that can tell people how to behave, how not to behave, and helps convince them that their marriage is valid no matter where they travel, and that their passport will hold good at any border post.

Let me now ask a question to my readers. I understand why such things as soft law or non-compliance procedures or soft international institutions (think G20, or Paris Club) are very attractive to policy-makers and governments: it gives them lots of leeway, and doesn’t cost them too much. But could anyone really seriously imagine those same governments and policy-makers to accept the notion of soft statehood? Would Russia really be willing to recognize Chechnya in soft form? Or China to accept the soft existence of Taiwan as a matter of law, with all the symbolic validation this entails, and not just de facto? If the answer is in the negative, as I suspect it is, then what becomes clear is that soft law and its various emanations, to the extent that they are accepted as legal categories, ought to be regarded first and foremost as tools in the hands of the powerful. That need not be problematic in its own right, but one hopes it would entail some critical scrutiny when such notions are invoked by governments and policy-makers.

by JanKlabbers

It would be tempting to join Opinio Juris’ discussion on soft law of a few weeks ago, but having written quite a bit on the topic going back to the mid-1990s, I thought I’d pay some attention to a lovely little story that ran in the New York Times about a month or two ago (I forgot to date my clipping… Typical). The story concerned the death of Prince Giorgio, ruler of what the NYTimes referred to as the Principality of Seborga.  Prince Giorgio was apparently first elected prince in 1963 and then elected for life in 1995. He went through life as His Tremendousness (wouldn’t we all…), set up a cabinet and a constitution, minted money and stamps and even mobilized a standing army, albeit one consisting of a single individual (then again, Seborga counts only a little over 300 inhabitants). Being surrounded by Italy and close to France, Seborga had found recognition of sorts by some 20 states, mostly in the not-so-formal way of honorary consuls. And so as to underline his royal eccentricity, Prince Giorgio’s most noteworthy legislative act, it appears, was the adoption of a law to stimulate smoking.

The intriguing question the story represents is why few of us think of Seborga as an independent, sovereign state, whereas we have no problem in thinking of Canada, or Brazil, or even Luxembourg, as an independent state. Luxembourg is not much bigger than Seborga; Brazil is, arguably, far younger than Seborga (which, according to the NYTimes, has been a principality since at least the year 1079); and it is arguable that Canada does not, unlike Seborga, have its own head of state. So where does the difference stem from? It all seems rather arbitrary, really. The obvious formal answer would be to refer to recognition by other states, but this too seems to remain rather arbitrary: there seems to be no self-evident reason why the rest of the world should have recognized Luxembourg but not Seborga. In other words: even the category of statehood, much like many other international law categories, may be seen as somehow fluid.

With this in mind, shouldn’t we come to conceptualize statehood in gradations? This would allow us to come to terms with an entity such as Kosovo: not wishing to be part of Serbia, but not yet fully to be regarded as ‘hard state’ either. It would help us classify and categorize entities such as Somalia as a ’soft state’ – surely, this sounds much nicer than ‘failed state’ while conveying much the same message. It would make some sense of the Holy See, the one entity where the population cannot reproduce itself. And wouldn’t Belgium be better off divided into two, three or four soft states rather than one fragile hard state with a hopelessly complicated constitutional set-up the only thing preventing it from breaking up completely?  

When writing about soft law in the mid-1990s I aimed to ridicule the concept of soft law by suggesting that surely, we would never come to speak of soft responsibility to be determined by soft tribunals, yet this is precisely what has happened in the intervening years: non-compliance procedures are established in order to assist states with ‘compliance problems’. With this in mind, recognition of the concept of soft statehood can only be a matter of time…