AJIL Symposium: Benvenisti response to Klabbers, McCrudden, Von Bogdandy and Schmalz

by Eyal Benvenisti

[Eyal Benvenisti is the Anny and Paul Yanowicz Professor of Human Rights at Tel Aviv University Faculty of Law and Global Visiting Professor at New York University School of Law.]

I am grateful for the three incisive and insightful comments. Due to space limitations I will not be able to do justice to any of the comments in this response, but they will certainly help in my future work on this subject. I will use this brief response to clarify some parts of my argument and to situate the article in my broader research project.

To clarify my argument and hint at its potential significance I will use the pending case before the International Court of Justice concerning Whaling in the Antarctic (Australia v. Japan: New Zealand intervening). The dispute focuses on Japan’s discretion to issue “special permits” for killing whales arguably for scientific research as provided by Article 8(1) of the International Convention for the Regulation of Whaling (1946). The said Article allows a member state to issue permits and impose conditions “as the Contracting Government thinks fit.” Japan interprets this obligation as a “good faith” obligation, arguing that neither the International Whaling Commission nor the ICJ “have power to approve or disapprove the issue of a special permit.” (Public seating, 4 July 2013, afternoon, verbatim record, p. 36 paras. 23-24). Australia argues, however, that Japan must demonstrate the scientific value of the permits because “Japan does not ‘own’ the whales it catches.” (Public seating, 10 July 2013, morning, verbatim record, p. 65 para. 23). As stated by Professor James Crawford, arguing for Australia: “In respect of resources in the international public domain, to recognize a wide margin of appreciation is, in effect, to allocate those resources to the exploiting State.” (id., para. 22). Given the global commons problem, continues Crawford, the Convention requires “a proper showing … that [research] proposals are genuinely motivated by scientific considerations and adapted appropriately to achieve scientific goals.” Moreover, Japan must “consider seriously” the views of the IWC and its subsidiary organs, otherwise the conclusion will be “that the project is not being carried out for the purposes of scientific research, but for some other purpose inconsistent with the Convention.” (id. at para. 26).

The trusteeship concept that I develop suggests that states are subject to rigorous accountability requirements not only with respect to their treatment of endangered migratory species, but also when they are using transboundary resources they share with a few other states, and even when they manage their “own” resources. For states do not fully “own” their “own” resources. Stated otherwise, following the German Basic Law concept of ownership (Article 14), “Ownership entails obligations. Its use shall also serve the public good.” As discussed in my article (at pp. 311-12), the same rationale applies with even greater force to states.

To some extent, such accountability obligations are minimal because they do not restrict the scope of sovereign discretion. If Australia is right, Japan would have to provide more data and expert analysis to prove the scientific basis for its decision to permit the killing of whales, and pay serious attention to the views of the IWC and others. But the ultimate decision would stay with Japan. Others may remain skeptical, and their suspicion may even have a stronger basis, but nothing more. This would be an “imperfect” obligation, in the sense that it would be a non-justiciable one; but an imperfect obligation is not necessarily an ineffective one, as anyone exposed to public shaming will appreciate.

The question whether the ICJ may question Japan’s explanation is a different and rather difficult one, which requires further deliberation. In my article I identified this as a question to be addressed at a later stage. Such an inquiry will have to assess the legitimate scope of review of national policymaking by external bodies such as international tribunals, in light of concerns with the impartiality of the judges, their competence to make better judgment calls than the reviewed sovereigns, and the potentially stifling impact of their interventions on domestic democratic processes. It may make sense, for example, for the reasons stated by Crawford, to authorize international tribunals to review national discretion when it applies to the use of migratory species but not to the management of domestic stocks.

This minimalist vision seems insufficient for von Bogdandy and Schmalz who want to “Push[] Benvenisti Further.” The opposite push comes from McCrudden who regards my position as “anything but ‘modest’ or ‘minimal’.” This contrast is fortunate as it permits me to present my argument as a moderate one, pressing the apologists and the utopians (Klabbers) equally, and hopefully convincing those in between.

I laud the more ambitious aspirations of von Bogdandy and Schmalz. The goals that they identify, that states should strive to resolve conflicts by forming international public authorities, as well as the desire for more “international friendly” national constitutions are certainly noble. Arguably, the trusteeship concept prods states to consider pursuing such goals and collectively develop the most effective domestic and supranational institutions that can meet the challenges to efficiency, equity, and democracy (see my conclusion, p. 333). This must be done carefully, with much attention to the potential harmful effects of a choking political unity, and the need to leave sufficient democratic space for domestic deliberations (the “subsidiarity” concerns, in European parlance). These concerns require focusing attention on maintaining the exit option from international bodies. But what exit means in the global high-rise? What obligations does the international public authority have toward non-members (e.g. what does the EU owe to non-Europeans?)? To answer these questions it is necessary to identify the minimal ground rules (while at the same time to continue striving for more).

But to a considerable extent, McCrudden is right to suggest that the trusteeship concept is not as minimal as I portray it. In fact, I am even less minimalist than McCrudden realizes. The accountability obligation is not confined to the obligation to give account for why one state harms the interests of others, but it also extends to the failure by the state to improve the welfare of others. As McCrudden rightly suspects, this obligation would apply to politicians in the legislature, to authors of think-tank reports and to Supreme Court judges. But this is not a radical proposition. To some extent, many of those actors already operate on this basis. Witness the recent decision of the Indian Supreme Court to deny Novartis’ claim for extended IP protection, where the court invokes and endorses the Indian Parliament’s expressed wish to ensure access to life saving drugs also to the poor who live outside India. This last example also partly responds to McCrudden’s concern that the trusteeship concept may ultimately harm developing countries.

To be able to find a moral grounding for such negative and positive obligations one must invoke first principles. McCrudden’s alternatives – enlightened self-interest, past promises, or the existence of an “international community” – would fail to provide the Archimedean point from which those obligations could flow to convince state actors to modify their past practices even without assured reciprocity. Moreover, it is unclear why one should explore such weak alternatives when the necessary and sufficient Archimedean point is generally accepted (if not fully tapped yet). It is, in the words of the Universal Declaration, the “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family.” There is no need to resort to a metaphysical entity called “humanity” or to convince the uninitiated that an “international community” exists (I use “humanity” as a rhetorical shorthand for all humans, not as a distinct entity). Nor is there a need to invoke common religious beliefs, not even international law – and obviously not history – as potential bases for the trusteeship concept. I do not argue that international law is the source of state sovereignty and hence the basis for the states’ trusteeship obligations. Rather it is us individuals, we who precede the state system in its entirety due to our inherent dignity who are the principals, the trustors: the past, present and future generations.

The article is short, perhaps too short as Klabbers suggests, because my motivation for writing it was not merely to publish. My aim was rather to put forward an argument, outline its moral foundations and consider its potential legal ramifications, thereby inviting others to engage in further discussion and research. The article frames the GlobalTrust research project that I am directing at Tel Aviv University Faculty of Law where the questions pointed out in the comments, those I identified in the article and many others will be examined. Much more empirical work must be done – and will be done – to ascertain the extent to which the trusteeship concept is reflected in state and judicial practice, to understand the deviating judgments (like the Pulp Mills judgment rightly referred to by Klabbers), to contextualize the argument historically and theoretically, and to explore (and suggest responses to) its possible negative aspects. But in order to do all that, a conceptual framing was necessary, which is what the article sought to provide.

I thank the editors for hosting the symposium and the commentators for their enlightening remarks and criticisms, and I look forward to many more fruitful exchanges.


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