AJIL Symposium: On Medium and Message

[Jan Klabbers is Professor of International Organisations Law and Director of the Centre of Excellence in Global Governance Research at the University of Helsinki.]

Much of the more serious theoretical reflection in international law aims to bring apology and utopia in alignment. This may be structurally impossible, as Martti Koskenniemi suggested a quarter of a century ago, but aiming to bridge the gap between the two is nonetheless a laudable enterprise. Eyal Benvenisti’s recent contribution to the American Journal of International Law comes closer than many before him. Partly this is because, unlike many others, Benvenisti takes both apology and utopia seriously: he is realist and idealist rolled into one. For him, sovereignty is not a bad word but a respectable concept, providing the space for legitimate exercises of self-determination. At the same time, he is aware that with globalization, many sovereign states (as traditionally conceived) are no longer able fully to help and protect their citizens. Globalization erodes independence and thus undermines self-determination – hence, sovereignty needs to be reconceived in order to take non-citizens into account and, what is more, is indeed undergoing such a re-conceptualization in positive international law.

Benvenisti has written an excellent piece, in his customary lucid and thoughtful style. The paper contributes to global ethics in a fairly novel way by positing a combination of cosmopolitanism and parochialism that seems reasonable and workable; it therewith adds to other recent studies engaged in similar enterprises, albeit from different angles (think of Kok-Chor Tan’s Justice without Borders, or Toni Erskine’s Embedded Cosmopolitanism). It contributes to international law by demonstrating that international law as it currently stands can indeed be seen to offer support to such a novel re-conceptualization of sovereignty as trusteeship. I have only one major gripe with the article, and that is that it is too short. It is too short in two ways: it neither allows for the argument completely to unfold, nor does it allow for the empirical materials to be carefully discussed. These are both obviously restrictions stemming from the format of a journal article, so perhaps the thing to question is the popularity (well-nigh sanctity) of the format, or the link between medium and message: the medium dictates the message.

My first gripe relates to the space needed for normative argument. One can make an empirical argument or doctrinal argument in some forty pages, and likewise, one can write an ‘applied theory’ paper of that size, generating one or two specific hypotheses which then remain to be tested (much law & economics scholarship follows this mode, as does much critical scholarship – in both cases, the testing rarely follows). But serious normative argument demands much more space. Not only does Benvenisti’s claim give rise to many secondary questions, as he acknowledges (such as: if we have to take others into account when making decisions, which others should we take into account?), it also gives rise to ancillary questions. Perhaps the most trenchant of these is the question of how to treat a state that consistently fails to take the interests of others into account. In the end, the paper can only present a skeleton version of the argument. There is a reason why Rawls’ A Theory of Justice takes up some 600 pages: the genre demands a slow and careful unfolding of the argument, step by step, before the argument can be considered convincing or its weaker points be spotted.

The paper is also too short in a different sense: Benvenisti outlines his moral argument, and then adds a number of sections presenting evidence that indeed, the development he advocates is taking place. Doing so, however, overshadows empirical evidence pointing in other directions. Thus, he is no doubt right in stating that a duty to consult others is taking shape in international law, but the 2010 Pulp Mills decision of the ICJ (which is not referred to) can be read in support of the opposite claim. Similarly, Benvenisti embraces perhaps all too quickly notions akin to a duty of solidarity between members of the same political community, or too rashly allows good faith to be creative of independent legal obligations, despite the ICJ’s 1988 admonition (and common sense position, really) that good faith can attach to existing obligations, but not by itself create new ones.

Perhaps it would have been better to present the argument differently: there are moral grounds to support a concept of sovereignty as trusteeship, and in dialectical fashion some parts of international law are moving there, while others still resist or pull in opposite directions. This would have been more subtle and, it would seem, more accurate, but would have taken a lot more space; and the leading international law journals are reluctant to publish articles that are longer than the forty pages Benvenisti’s paper currently takes up. Had the focus solely rested on the moral argument, then the leading law journals could have refused publication on the grounds of ‘not enough law’; and that would have meant that the message would not have reached its target audience. Whether the medium is the message may be questioned, but again it seems clear that the medium at least helps determine what kind of message is being presented – and that is a point of general concern.

Be that as it may, Benvenisti is on to something, and it is refreshing to see one of the most sophisticated and versatile international lawyers of our time engaged in a serious quest to help achieve a better world. One of his strengths is, as mentioned, his capacity to take both apology and utopia seriously; another is that he has a wonderful technical mastery over a diversity of international legal disciplines, ranging from the law of armed conflict to the law of shared resources. One can only hope he will find the time and energy to present the argument, in greater detail and paying homage to secondary and ancillary questions, in book form. The resulting book may well become the most relevant international legal study of the decade.