More soft statehood…

More soft statehood…

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.

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Kenneth Anderson

Professor Klabbers – I thought your original post on this witty, funny, smart – and now I find out the joke is on me!!   But please don’t stop writing that way on OJ on my account – the OP was great!  So great you persuaded me!  Seriously, though, I am partly at least persuaded by your post; I was writing a little tongue in cheek as well, but, well, not so much.

Patrick S. O'Donnell

Indeed, it reminds one of classifying the different kinds of “killing” in law, oh wait, that’s what academics do…oops, law can only operate in a binary fashion: you either kill someone or you do not, you’re either guilty or not, full stop. Incidentally, neither May, Keohane or Buchanan have “confus[ed] academic classification or ethical argument with the normative role of law.”

Behavior is either legal or illegal: indeed, it makes no difference if you’re exceeding the speed limit by 5 mph or 50 mph, both are illegal…and yet the behavioral consequences and implications are hardly black and white.
There is a complex interrelation between ethical, social and legal norms, thus the latter don’t exist in a vacuum and hence the normative role of law is not always clearcut or with unambiguous or determinative behavioral consequences and implications. Among other things: cf. Friedrich V. Kratochwil’s Rules, Norms, and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (1989).

A breach of contract is either a breach of contract or it is not…I was blind, but now I see.

I suspect irony runs the risk of pretense and condenscension.

Patrick S. O'Donnell

Oops: condescension

Francesco Messineo
Francesco Messineo

This is a very fascinating (I’d dare say anthropological) example of transatlantic misunderstandings adding one on top of the other… Before the NATO alliance is put into question, I’d like to point out that, as I read him, Prof. Klabbers did not *literally* mean to say that law is *always* binary, but that, when nuances are introduced in law, they must be workable in a way that will be clear and susceptible of getting to a reasonable answer in time for the judge to go home eat some dinner.
In practice, this means that people do have to reduce problems to binary questions such as whether, ultimately, there has or has not been a breach of a certain contract. And, says Prof. Klabbers, the ‘soft statehood’ nuance is not helpful as a concept to solve any practical problem with reference to states, because it adds more problems than it solves. But now it seems that everyone is translating Prof. Klabbers into their own mind-world, and in my case the morph would also imply the loss of his academic title :-), so I’ll leave it at that.

Patrick S. O'Donnell

Please Francesco, where’s your sense of irony and sarcasm? Had the dear professor used a little interpretive charity in the first place, perhaps the same would have been extended to him. Incidentally, it’s “practical problems” that arose with traditional conceptions of sovereignty (related, for example, to questions of ‘secession’ and ‘self-determination’) that prompted reflections on possible alternatives. It’s not obvious that conditional recognition of statehood (contingent, say, on basic democratic criteria [that would allow for a wide range of different types of democracy] or minimal human rights norms) would necessarily give rise to problems of a greater order of magnitude than those it seeks to address. One might attempt to seriously treat the proposed arguments rather than relying on ad hominem dismissals, to wit: “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).” Consider, for example, the minimal democracy condition, from both internal and external perspectives respectively. From the former, we might consider the fact that “there is a sense in which a political entity cannot be fully legitimate unless those who wield political power within it are authorized to do so by… Read more »