Recent Posts

Is American Foreign Policy Christian? A Conversation with Andrew Preston

Over at the St. John's Center for Law and Religion Forum, my colleague Mark Movsesian has posted a fascinating conversation with Professor Andrew Preston (Cambridge), author of Sword of the Spirit, Shield of the Faith.  Preston's book examines the role faith has played in the conduct of U.S. foreign and military policy over the course of our history.  In this...

Weekday News Wrap: Monday, July 9, 2012

Survivors of the 1995 Srebrenica massacre re-enacted their escape in Bosnia this weekend ahead of Ratko Mladic's trial, which resumed today at the International Criminal Tribunal for the Former Yugoslavia in The Hague. Tomorrow, the International Criminal Court will deliver the sentence and reparations order for Thomas Lubanga Dyilo, convicted March 14, 2012 of conscripting and enlisting child soldiers and using them to...

Weekend Roundup June 30-July 6, 2012

This week on Opinio Juris, we had Kevin Jon Heller weighing in on Melinda Taylor's release in Libya and offering thoughts related to whether she should be prosecuted there. Additionally, Kevin Jon proposed a thought experiment regarding ICC-State cooperation in response to the Melinda Taylor situation and gave an analysis offering more evidence as to why Libya is unable to prosecute Saif al-Islam...

LJIL Symposium Vol 25-2: Beyond Constitutionalism – How Radical Pluralism Bites Its Own Tail

[Tom de Boer is a Candidate, Research Master Public International Law at the Amsterdam Law] This post is part of the Leiden Journal of International Law Vol 25-2 symposium. Other posts in this series can be found in the related posts below. To start, I want to thank Nico Krisch for his fair and enlightening reaction to my review essay and the clarifications on his book, and Daniel Halberstam for his interesting contribution to this debate.  Below I will try to analyze the positions of both scholars, react on both commentaries, and clarify my own position on the issue of legal pluralism addressed in Krisch’s book, Beyond Constitutionalism: The Pluralist Structure of Postnational Law. As I note in my review essay, Krisch’s book revolves around the question how best to deal with postnational law, that is characterized by a proliferation of international organizations and fields of international law in which states lose more and more of their sovereignty. This process of internationalization puts strains on democratic decision-making processes at the national level and could potentially lead to alienation from the international legal order of both states and their citizens. How should this problem of an ever-growing messiness at the international level  be addressed from a legal perspective? And what should be the relationship between the legal orders – international, regional and national – that are part of this constellation of postnational law? With his plea for radical pluralism Krisch has positioned himself at the far-end of the spectrum in the debate that flows from these questions. His view constitutes a break with the constitutionalist approach, which aims for a transfer of the qualities of national legal systems – such as a clear hierarchy and enforcement mechanisms of legal rules – to the international level. Krisch aims for an international legal order which is founded on a pluralism that ‘eschews ultimate authority and overarching conflict norms’, in which also the nature of the relationship between the different suborders is principally unsettled.

LJIL Symposium Vol 25-2: Beyond Constitutionalism – Pluralism’s Promise

[Nico Krisch, Professor of International Law, Hertie School of Governance; currently Visiting Professor of Law, Harvard Law School.] This post is part of the Leiden Journal of International Law Vol 25-2 symposium. Other posts in this series can be found in the related posts below. Tom de Boer's review of my recent book, Beyond Constitutionalism: The Pluralist Structure of Postnational Law, presents not only a careful analysis, but also a direct challenge to its normative thrust. This gives me an opportunity to defend and clarify my views, and I am grateful to the editors of the Leiden Journal of International Law for allowing me to do so in this Opinio Juris discussion. De Boer's critique is constitutionalist in nature and internationalist in outlook. What he finds most troubling in the book is that the pluralist structure I defend may allow national courts to question international law's authority on dubious – particular rather than universal – grounds. The potential danger of pluralism, he argues, is much broader than what emerges from the relatively benign examples in the book: pluralism may open Pandora's box to all kinds of problematic action by domestic political and judicial bodies and thus undermine the force of international rules. A constitutionalist order, in de Boer's view, would be better able to protect international law and institutions from such unwarranted challenges. This portrayal of the potential consequences of a pluralist order is not implausible. Pluralism as I see it eschews ultimate authority and overarching conflict norms, and it grants different parts of the global legal order the space to distance themselves from the others. It creates an interplay of suborders in which the relationships are defined from within each suborder, both as between different international regimes and between different layers of law in the interaction of national, regional, and international orders. There is no overarching, hierarchical frame that would order their relations, and consequently no external legal constraint that would keep the suborders from getting it wrong.

Weekday News Wrap: July 6, 2012

The Transnational Federal Government of Somalia has signed an action plan backed by the UN to stop the use of child soldiers. Ex-Argentine president Jorge Videla was sentenced to 50 years in prison for stealing babies from prisoners during Argentina's "Dirty War." The Foreign Minister of Iraq claims that al-Qaeda is flowing into Syria, posing potential threats to the stability of the entire region. An online poll...

LJIL Symposium Vol 25-2: Beyond Constitutionalism? – A comment by Daniel Halberstam

[Daniel Halberstam, Eric Stein Collegiate Professor of Law and Director, European Legal Studies Program, University of Michigan Law School.  External Professor, College of Europe, Bruges] This post is part of the Leiden Journal of International Law Vol 25-2 symposium. Other posts in this series can be found in the related posts below. Nico Krisch’s justly award-winning book thoughtfully elaborates on an approach to global governance that he sometimes calls “radical pluralism.”  His basic point is that politics, not law governs the relationship among the different legal systems and regimes. Beyond Constitutionalism offers the reader a valuable overview of a dense, often messy topic, deftly weaving through ample case studies and secondary literature. Krisch’s argument in favor of pluralism is extremely careful – indeed it is cautious to a fault.  The dizzying collection of conditional statements, disclaimers, and passages highlighting difficulties with pluralism leaves the reader wondering just how strong the case for radical pluralism really is.  Nonetheless, on the basis of numerous ties and razor thin calls (Cf., e.g., at 276: “None of this allows for ultimate conclusions about pluralism’s and constitutionalism’s respective virtues when it comes to democratic governance” or at 280 “As regards predictability and argumentative rationality then, pluralism does not necessarily fare worse than constitutionalism.” (italics mine)), Krisch sums up his book in the end as having presented a “provisional . . . but relatively strong case for the pluralist vision.” (302)  How so?  How can a series of barely detectable advances amount to a “strong case” in the end? The answer lies in the word “relatively.”  The case for the pluralist vision is “strong” only when judged “relatively” against the particular “constitutional” vision that Krisch features as the steady point of contrast throughout his book. As Tom De Boer’s commendable review explains, Krisch has chosen as his foil a rather wooden conception of constitutionalism against which to size up the case for pluralism.  To be sure, Krisch opens with a nuanced discussion of competing visions of constitutionalism, both past and present.  But he quickly settles on “foundational constitutionalism,” with its roots in the radical revolutions of the 18^th Century, as the alternative against which he argues in favor of his brand of pluralism.  The foundational vision of constitutionalism sees radical politics as creating a comprehensive legal framework that, in turn, grounds and limits all politics and all exercises of public power.

The Arms Treaty Negotiations and the Problems of Consensus for a Hegemonic Player

OJ's esteemed commenter Martin Holterman asks in the comments to my earlier post about the Arms Treaty negotiation underway in New York what the point of negotiating a treaty is, if you assert in advance (and indeed attach to the treaty) that there cannot be any circumstances in which you might violate it.  He asks this with reference to a letter sent Monday from Congressional lawmakers (some 130 of them) to the Obama administration.  The short answer is that if those are your objections, then you really ought to stay out of the process, which is certainly my view.  (We should add that this has been a fairly standard procedure for the US in certain kinds of treaty negotiations where it is clear that Constitutional standards are implicated.)  But this raises some general issues regarding the nature of consensus negotiations, which I take up in this post, using the arms treaty negotiations as a backdrop and drawing on Chapter 2 of my new book, Living With the UN. The Bush administration, as Duncan's earlier post observed, opposed the treaty negotiation process and instead favored strengthening national export regimes.  I thought it was a better way to deal with the issues of arms trade as such; I always thought it a mistake for the Obama administration in 2009 to agree to engage in the process at all.  One reason the Obama administration decided to join treaty negotiations, however, is owed to the early Obama administration's overall desire to engage multilaterally, especially through the UN and international organizations. It's part of this administration's general patten of multilateral engagement - with the Human Rights Council, most controversially, but lots of other exercises in "values" processes at the UN as well.  I'm not alone in detecting a tension inside the (first two years anyway) Obama administration between its liberal internationalists, who took multilateral engagement seriously as its own value, on the one hand, and what I've sometimes called its "New Liberal Realists," on the other. The liberal internationalists of the administration's first two years or so thought the "values" exercises meant something for their own sake and so should be undertaken.  The New Liberal Realists, by contrast, seemed to have taken the view that if the US could gain points by engaging in values processes, fine, because it didn't finally matter.  Being mere ideological exercises in words, they didn't actually mean anything in tough realist terms.  Talk is cheap and you can always walk away or come up with some covering interpretation.  In a (yes, provocatively titled) chapter in my book, "Disengage and Obstruct," however, I argue that these exercises in supposedly cost-free multilateral engagement around values issues are rarely cost-free for a hegemonic player.  Talk might be cheap but it's not without a price, because it's an accumulating, even if imperfect and weak, proxy for whether the hegemon means other things it says. The New Liberal Realist claim amounts to saying that no one takes the "values" talk seriously or as a proxy for "realist" matters of security, hard core economic issues, etc.  I would respond that this misunderstands the peculiar nature of hegemony, and the way in which it transcends realism by using "values" issues to transform raw power into authority and finally hegemonic legitimacy. (Beyond that, I won't try to define hegemony here.)  Realists, we can say in passing, are often not conceptually equipped to understand legitimacy save as on a narrow, transactional, marginal basis - blinders which makes it hard to understand the persistence of hegemony, which depends upon a particular relationship between interests and values, power and authority, and finally legitimacy.