22 Jan 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.