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Jordan Paust

Paust Response to Ochoa Article

by Jordan Paust

Christiana Ochoa’s article provides important insights into the relevance of various jurisprudential approaches to questions concerning the role of individuals and other nonstate actors in the international legal process. Her primary concern is whether individuals participate in the formation of customary international law. In sharp contrast to what she and too many others prefer to identify as a “traditional” approach (what she otherwise rightly recognizes as an unrealistic “state-centric account”), her answer is “yes.” Besides attention to the reality of participation, she offers insights into what she terms “doctrinal bases for inclusion of individuals” and “modern social/philosophical bases” for inclusion, which she terms globalization, cosmopolitanism and cosmopolitan citizenship, transnationalism, and participatory democracy.

In general, I come out quite favorably in her consideration of various jurisprudential orientations. I am correctly placed within a “Realism” camp that has benefitted from the insights of Myres McDougal and Harold Lasswell and their post-Realist jurisprudence known as the New Haven School (which she recognizes has included Michael Reisman, Lung-chu Chen, Rosalyn Higgins, Isabelle Gunning, and Janet Koven Levit, among others). As Christiana remarks, “Professors Chen and Paust further the realist’s insight that individuals already do contribute to CIL formation.” An important statement about the reality of participation is that of McDougal, Lasswell, and Reisman offered at pages 140-41 of her article. We use these insights partly in our casebook: Paust, Van Dyke, Malone, International Law and Litigation in the U.S. 34-40, 42-43 (2 ed. 2005). For further exposition, I recommend Lasswell & McDougal, Jurisprudence For A Free Society: Studies in Law, Science and Policy vols. I & II (New Haven Press 1992); and Chen, An Introduction to Contemporary International Law: A Policy-Oriented Perspective (2 ed. 2000, Yale University Press).

With respect to the reality of participation, our jurisprudential orientation compels us to seek to identify the realistic role played by individuals, groups, and so forth in the formation of law or normative content, as well as their role with respect to other aspects of the legal process. For example, international law concerning the content of customary international law (CIL) as well as the meaning of treaty law demands awareness of generally shared patterns of opinio juris or general patterns of relevant legal expectation. This is one of the admitted elements of dynamic CIL and one of the primary foci for interpretation of treaty content or “meaning,” one utilized necessarily in connection with efforts to identify and clarify the “ordinary meaning” to be given to the terms of a treaty (since “ordinary” meaning is necessarily the generally shared or “objective” meaning of a term or phrase, a real human meaning as opposed to some theoretic but not commonly understood meaning). See Paust, Van Dyke, Malone, supra at 69-70.

What I take issue with is the notion that relevant opinio juris or generally shared meaning merely should be or merely has been that of “states.” For example, Christiana offers an initial inquiry into some of the history of Article 38(1)(b) of the Statute of the ICJ on pages 171-73. Yet she concludes that the article encompasses merely “state” practice and opinio (id. at 132, 170) despite the fact that the word “state” was excluded from subparagraph (b) and that the drafters used the word “state” in subparagraph (a) and used the word “nation” in subparagraph (c). We disagree. See Paust, Van Dyke, Malone, supra at 4-5.

More generally, historically, there have always been other actors than the “state.” “Nations” (e.g., Indian “nations” and “tribes”) and “belligerents” (e.g., the Confederate States of America) have long participated in the international legal process. For example, they have had treaties with states and have been bound by customary international law. Other nonstate actors have included “empires” and “coalitions.” In our own history, we had a Continental Congress before we created the “state” of the United States, and we had a treaty with Great Britain in 1783, prior to creation of that “state.” In my own writings, I have identified numerous cases where individuals had responsibility under customary international law and treaty-based international law. For example, it was recognized early that individuals could be prosecuted for many types of crime under international law. See, e.g., The Reality of Private Rights, Duties, and Participation in the International Legal Process, 25 Mich. J. Int’l L. 1229, 1237-39 (2004). A famous case in that regard is Henfield’s Case in 1793, involving the direct incorporation of CIL and treaties for criminal prosecution. Also in our history and that of western Europe and elsewhere there have been recognitions of human rights of individuals for at least two hundred years. See, e.g., Paust, International Law as Law of the United States 193-217, passim (2 ed. 2003). Individual responsibility and rights are generally not at issue here. Christiana’s primarily concern is the role of individuals in the formation of law.

Even Oppenheim, the rigid state-oriented positivist who wrote in 1912 that “states” are the only actors, admitted that many textwriters disagreed with his preference (including Bonfils, Bluntschli, Fiore, and Martens). See 25 Mich. J. Int’l L. at 1231-32. Perhaps the British chose this unrealistic preference in order to facilitate their dominance in various “colonies.” In any event, traditional international law, even through the early 20th Century, recognized the role of “nations,” “belligerents,” and entities other than the “state.” That alone demonstrates the error of the states-alone theory and the error that such an unrealistic theory was “traditional” outside of rigid state-oriented positivist circles and those (I admit that there have been many) who simply repeat their printed preferences. Earlier, cities, like Venice, had treaties with states and the Ottoman Empire. It would be improper for us to retroactively impose on such entities a theoretic construct that we use at this time called the “state.”

When was the “state” of Greece, the cradle of “civilization,” created? When did the “state” of Germany occur or the “state” of Japan or Italy? Within the 19th Century. Were there treaties with leaders or groups within such areas prior to the “state”? Did persons from such areas and groups play no role in the formation of CIL, treaties, and normative content more generally? I suspect that our research into roles of actual participants in international agreement processes and CIL during the 17th, 18th, and 19th centuries has been incomplete, that our awareness of history is imperfect. I know that writers such as Francis Lieber, who codified customary laws of war in 1863, looked to practices of tribes, confederations, nations, and actors other than the “state” (because I had the privilege of looking through some of the books from his personal collection and some notes that he wrote in some of the books – which were housed in the Judge Advocate General’s School in Charlottesville). It is enough to know that Oppenheim was wrong. Perhaps “readers” here can disclose other examples of treaties involving non”state” actors

Christiana quotes the Martens clause (see Martens above) from the 1899 Hague Convention, which was mirrored in the 1907 Hague Convention No. IV (all around the time of Oppenheim’s unrealistic preference). As she notes (at 130), it is very interesting that the clause refers to “nations” and the “laws of humanity” as well as the “public conscience.” Henfield’s Case had mentioned the “duties of humanity” and others mentioned the “laws of humanity” (not the “state”). In the 1919 Report of the Responsibilities Commission, it was recognized that individuals were subject to criminal sanctions for offenses against the “laws of humanity,” which today are called “crimes against humanity.” See Paust, Van Dyke, Malone, supra at 986-87. It is also of interest that Henry Wheaton’s Elements of International Law recognized in 1855 that “[p]rivate individuals, or public and private corporations may … become the subjects” of international law. See Paust, Van Dyke, Malone, supra at 20. We find the extract from United States v. Von Leeb, id. at 29-30, to be informing of the continued recognition in the mid-20th Century of to role of persons in the formation of normative content and that the process is “democratic.” If there is a dovetailing of realism in this respect (e.g., concerning awareness of the realistic role of individuals and groups) and ideologic preferences, it relates to the preference for human dignity or individual value found in human rights law (e.g., in the Universal Declaration of Human Rights, art. 1) and the interrelated preference for a one-person-one-vote legitimacy of governmental authority (e.g., id. art. 21(3) (“the will of the people”)) and processes of political self-determination (e.g., in the 1970 Declaration on Principles of International Law).