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International Legal Theory and Teaching

Behavioral International Law: What Is It Good For?

by Tomer Broude

[Tomer Broude is Vice-Dean and Sylvan M. Cohen Chair in Law at the Faculty of Law and Department of International Relations at the Hebrew University of Jerusalem.]

Having set out general considerations and a research methodology framework for “Behavioral International Law” in previous posts, some readers might be wondering how this all cashes out for international law as a discipline?

In their path-breaking 1999 YJIL article on economic analysis of international law, Jeffrey Dunoff and Joel Trachtman noted that “almost every international law research subject could be illuminated, to some degree, by these research methods” [referring to economic analysis]. With similar caveats, it is tempting to say something similar and related about behavioral analysis and international law. Behavioral international law is not a ‘theory of everything’. Neither is it a normative framework of analysis, as such. But properly constructed behavioral research selectively employing the methodologies I describe here can significantly increase our knowledge in all areas of international law, with respect to many problems and puzzles.

In my article, I developed three examples that cover the entire spectrum of levels of analysis as well as research methodologies. In all of them, a mere theoretical application is sufficient to stimulate discussion by posing alternative hypotheses and explanations, but if one is concerned with empirical accuracy, field studies and experimental work is necessary. Moreover, the examples – essentially three mini-articles – cover diverse areas of international law (treaty law, WTO dispute settlement and international humanitarian law). I will briefly summarize two examples.  (more…)

Behavioral International Law: A Methodological Framework

by Tomer Broude

[Tomer Broude is Vice-Dean and Sylvan M. Cohen Chair in Law at the Faculty of Law and Department of International Relations at the Hebrew University of Jerusalem.]

In my previous post, I tried to briefly introduce the merits of “Behavioral International Law”. Experimental research has shown that in many cases human behavior diverges from theoretical assumptions about rationality. Prospect theory, loss aversion, endowment effects, anchoring, hindsight bias, availability bias, conformity effects, framing effects – the list of experimentally proven, systematic diversions from perfect rationality in human behavior is long. The confines of a blog post preclude detailed discussion of any of these biases and heuristics; the literature in cognitive psychology is vast. The important point, pursued by scholars over the last decade or so, is that this knowledge of actual, rather than hypothesized or assumed, human behavior, can have significant implications for legal regulation. Why should this not be the case with respect to public international law?

A number of objections may arise, and I will mention two of them briefly here. The first would be that cognitive psychology and behavioral economics relate primarily to the conduct of individuals as (obviously) unitary actors, while the main subjects of international law are collective entities, primarily states. This presents a type of external validity problem: can the knowledge we have on human behavior, carry over to other actors? (more…)

Behavioral International Law: An Introduction

by Tomer Broude

[Tomer Broude is Vice-Dean and Sylvan M. Cohen Chair in Law at the Faculty of Law and Department of International Relations at the Hebrew University of Jerusalem.]

I’d like first to thank the Opinio Juris team, and particularly Prof. Chris Borgen, for inviting me to present my article manuscript, “Behavioral International Law”, in this online forum. Today I will devote my post to general observations on this project. In my second post I will discuss the range of available research methodologies in this area. A third post will discuss some concrete examples of behavioral research in international law.

Behavioral science has in recent years been applied successfully to many legal issues. A field that just a decade ago was entirely new now merits its own research handbooks (one forthcoming with OUP in 2014, edited by my Hebrew University colleagues Doron Teichman and Eyal Zamir). Behavioral research is now embedded in national and regulatory policy-making that clearly interacts with international affairs (see Cass Sunstein’s article on “Nudges.gov” here; the UK’s Behavioural Insights Team; and this conference in December on EU law and behavioral science). No less importantly, the groundbreaking work of cognitive psychologists such as Daniel Kahneman and the late Amos Tversky has been greatly popularized in a series of popular science books (see here, here, and here), making it more accessible to lawyers and policy-makers (for better or for worse).

Simplified, the central concept underlying research in this field is the recognition that human cognitive capabilities are not perfect or infinite; our rationality is ‘bounded’. The human brain makes shortcuts in judgment and decision-making that diverge from expected utility theory. Limiting aspects of bounded rationality and the shortcuts taken to overcome them – generally known as biases and heuristics – inevitably cause human decisions that would be regarded as erroneous if compared with theoretically/perfectly rational outcomes. As I explain in the article, this should at least give pause to standard rational choice approaches to law in general and international law in particular, whose assumptions about the rationality of states and other actors are often distant from behavioral realities.

Having said this, it is important to understand that behavioral economics does not aspire to replace one ideal-type decision maker (a perfectly rational one) with another (rationally imperfect) one. (more…)

Interpretation isn’t just Meaning! The Existential Function of Interpretation in International Law

by Duncan Hollis

Looking back at all the debates over whether the United States could have legal authority to use force in Syria, I was struck by the presence of two very different types of arguments about the Responsibility to Protect (R2P).  For some, the R2P questions were interpretative in nature — what did R2P mean (i.e., does it require Security Council authorization) and how does its meaning apply in the Syrian context?  Obviously, different interpretative methods and techniques could generate different answers to what R2P meant, and, with them, different outcomes for the Syrian intervention question. Many others, however, never made it to this interpretative stage.  For them, the R2P questions were existential — did it even exist within the corpus of international law in the first place?

Looking at R2P in Syria provides a paradigmatic example of how international legal interpretation can do more than simply explain what a legal concept “means”.  It shows that the interpretative project is not just an expository process but an existential one. The very act of interpreting validates the legal existence of that which is being interpreted. Interpretations of R2P with respect to the legality of a Syrian intervention necessarily accepted the existence of R2P within international law.  At the same time, deciding whether or not R2P exists itself constitutes a particular form of interpretative process, or what I call an existential interpretation.  I’ve written a paper about these existential aspects of international legal interpretation that’s now available on SSRN (I also presented it at this fabulous conference on interpretation in Cambridge).  Here’s the abstract:

For most international lawyers, interpretation involves acts giving meaning to a particular legal rule. Interpretative studies center largely on questions of method and technique – by what process should (or must) meaning be given to an international legal rule and how does a given meaning accord with the interpretative method employed. In recent years, increasing methodological awareness of interpretative theory has broadened – or, in the case of critical scholarship, challenged – the capacity of interpretation to give meaning to international law.

Notwithstanding the value in focusing on interpretative methods and techniques, the concept of interpretation they produce remains incomplete. International law’s interpretative processes are like an iceberg – the meaning arrived at by an interpreter is not simply a function of the method and technique employed (the visible tip) but rests on an array of earlier choices about what “exists” to be interpreted in the first place (the iceberg’s hidden, critical mass). A familiar example involves the question of what evidence counts as “State practice” for purposes of identifying customary international law. Interpreters who only count what States “do” may generate different content for a claimed rule than those who also consider what States “say” about the rule, even holding constant the method and technique employed. Similar existential questions arise throughout the international legal order. Before a treaty can be interpreted according to the 1969 Vienna Convention, for example, the interpreter must conclude the treaty actually exists. Indeed, interpretative choices lie at the core of international law’s sources doctrine, since what qualifies as international law (or not) can privilege or foreclose specific interpretative methods and outcomes.

This paper seeks to uncover the “existential function” of interpretation in international law. It explains how all interpretations have existential effects as they create, confirm, or deny the existence of the subject of interpretation. At the same time, I identify a particular structure of interpretative argument – what I call “existential interpretation” – by which interpreters ascertain the existence of their subjects. I review examples of this phenomenon in questions about the existence of interpretative authority, evidence, international law, and its sources.

Existential interpretations and the functions they serve have significant implications for international legal (a) discourse, (b) doctrine, and (c) theories of international law. Existential interpretations delineate the boundaries for interpretative discourse, narrowing it in cases of consensus on the existence of the interpreted subject, and broadening it in cases of dispute. Where interpretative resolutions of existential questions are possible, they may impact the content of international law doctrine, either directly or indirectly. And, where resolution is not possible, existential interpretations may operate as proxies for theoretical disagreement about the nature or purpose of international law (e.g., positivists may insist interpreters exclude from their toolbox the same soft law sources that naturalists insist require effectiveness as a matter of right). The paper concludes with a call for further study of existential interpretation given its importance to practice as well as its potential to provide a new lens for mapping the unity and fragmentation of the international legal order itself.

I’d welcome feedback if any of you find the paper is worth a read.

What’s Wrong with International Human Rights Law?

by Duncan Hollis

I’ve long admired Oscar Schachter’s idea that there is an ‘invisible college’ of international lawyers operating across the globe, all of whom share a common culture of professionalism and purpose in advancing international law.  Of course, with fragmentation the unity of that profession is more overtly stressed now than in the past (which, I suppose, should not be all that surprising since anyone who’s spent time within a “college” can attest to the occasionally sharp divisions that emerge among faculty and/or their students).

There is one area, however, where the unity of the international legal profession has, to date, appeared unchallenged — international human rights law.  To be sure, there are frequent debates over what this law contains, who has a voice in its interpretation and application, and how effective these rights may be in practice.  But, it’s almost taboo to challenge the concept of international human rights itself.  After all, since we’re all humans, who could oppose the idea that we all have (and are entitled to) certain universal rights?  Well, my colleague Jaya Ramji-Nogales has actually launched just such a challenge as part of a new research agenda, seeking to examine critically the concept of international human rights.  Her first step is a new draft article, ‘Undocumented Migrants and the Failures of Universal Individualism‘.  In it, she actually does something I don’t think I’ve seen an international lawyer do before — identify multiple conceptual problems with the very idea of a universal, international law of human rights.  It’s sure to be a controversial thesis.  But I also think it’s not one to be shouted down, but rather engaged with openly, especially by those who identify themselves as international human rights lawyers.  Here’s her argument in abstract form:

In recent years, advocates and scholars have made increasing efforts to situate undocumented migrants within the human rights framework. Few have examined international human rights law closely enough to discover just how limited it is in its protections of the undocumented. This article takes that failure as a starting point to launch a critique of the universal individualist project that characterizes the current human rights system. It then catalogues in detail the protections available to undocumented migrants international human rights law, which are far fewer than often assumed. The article demonstrates through a careful analysis of relevant law that the human rights framework contains significant conceptual gaps when it comes to the undocumented. It concludes by stepping away from human rights law and offering a radically innovative approach to protecting undocumented migrants and other vulnerable populations.

 

For those interested in reading further, the paper is up on SSRN here.

TEDxHagueAcademy: September 9

by Chris Borgen

For a number of years now, I’ve enjoyed watching TED talks  and TEDx events on a variety of subjects in the realms of science, design, and society. TED may be an acronym for Technology, Entertainment, and Design, but TED talks already go well beyond those topics and tomorrow, September 9, there will be a TEDx event on issues of international justice.

TEDxHagueAcademy will bring together a wide range of speakers on issues of international justice, including  former Acting Solicitor General (and, lead counsel for Guantanamo detainees in Hamdan v. Rumsfeld) Neal Katyal and President of the ICTY Theodor Meron. Other speakers will include activists and artists who are engaged in questions of peace, justice, and reconciliation. For example, Michael Liu, a lawyer from mainland China representing victims before the Extraordinary Chambers in the Courts of Cambodia, will speak on China and international justice, journalist and human rights activist Iduvina Hernandez will talk about the struggle for justice in Guatemala, and filmmaker Faisal Attrache will talk about his documentary on Syrian refugee barbers.

Two of the organizers of this event were also involved in bringing the group of bloggers over to the Hague for the Peace Palace meetings last week, so I got to hear a bit about TEDxHagueAcademy and it sounds like it will be a very interesting and wide-ranging event.

Videos of the TEDxHagueAcademy talks will be available (and archived for later viewing) on its webpage.

More information is available via TEDxHagueAcademy’s Facebook page and there is a Twitter feed, where you can also send questions to the speakers.

Syria Insta-Symposium: Ezequiel Heffes and Brian E. Frenkel–The Decision-Making Process of the R2P Doctrine: Towards New (Old) Paths in the Use of Force in International Law

by Ezequiel Heffes

[Ezequiel Heffes and Brian E. Frenkel are LL.M. candidates at the Geneva Academy of International Humanitarian Law and Human Rights and Teaching Assistants of Public International Law at the University of Buenos Aires, School of Law. This post reflects partial conclusions of our ongoing research at the University of Buenos Aires’s Law School as members of the project “Beyond the Jus In Bello? The Regulation of Armed Conflicts in the History of Jus Gentium and the Limits of IHL as an Autonomous Regime Before other Branches of a ‘Fragmented’ Public International Law.”]

In the last few years the general prohibition on the use of force enshrined in Article 2 (4) of the UN Charter has been approached differently from the classical view. In situations of mass violations of human rights and international humanitarian law, the responsibility to protect (R2P) and humanitarian intervention have begun to emerge as possible exceptions. As Jennifer Trahan correctly points out, from a legalistic point of view the UN Charter only allows intervention in two scenarios: UN Security Council authorized action, and the exercise of the “inherent right of individual or collective self–defence if an armed attack occurs” by one State against another State (Article 51 of the UN Charter).

In consequence both, R2P and humanitarian intervention, would be outside any legal framework. But perhaps, and only perhaps, by analyzing the use of force in international law from a different perspective, new proposals could be taken into account. In an earlier post on this blog, André Nollkaemper has presented the possibility that strikes could be part of a process of reconstruction of the law on the use of force, but what does this mean? An alternative view of the existence of the prohibition of the use of force in international law has to be approached.

Rosalyn Higgins has postulated in the past that international law is a legal decision–making process, i.e., it is a continuing process of authoritative decisions. This idea considers that rights and obligations of entities are created by participants –and not by subjects of international law, a notion that according to her has no functional purpose– and determined not by reference to the trend of past decisions, which she calls ‘rules’, but through a continuous and dynamic process of decisions made by authorized persons or organs. This participation, however, would depend in the end on their factual power to do so in order to be accepted by other established participants of that same system. Higgins affirmed in the same sense that if international law was only a set of rules, then it would be unable to contribute to a changing political world. This rejection means that “those who have to make decisions on the basis of international law –judges, but also legal advisers and others– are not really simply ‘finding the rule’ and then applying it. This is because the determination of what is the relevant rule is part of the decision – makers’ function; and because the accumulated trend of past decisions should never be applied oblivious in the context”. Precisely, Julian Ku raised a similar matter when he posted here that President Obama affirmed that international law is a “factor in the decisionmaking process in the U.S.” since U.S. officials were looking at Kosovo as a precedent for an intervention. The main issue therefore seems to be concerning the prohibition of aggression, is it possible to consider that it is only a set of rules? Could it be changed through the abovementioned process? Higgins answered these questions affirming that even when its prescription is a necessary rule of coexistence, it still must be taken into account the fact that it is “the practice of the vast majority of states that is critical, both in the formation of new norms and in their development and change and possible death”. This means that the foresaid prohibition could change without necessarily loosing its strength, and R2P and humanitarian intervention could be allowed only with the States’ consent. From a theoretical perspective this seems difficult, but not impossible.

Higgins’s theory is certainly susceptible to objections. Roland Portmann for instance affirms that there is a confirmed tendency today that supports the idea of having general rules of international law. Even though this could be taken into account, new paradigms shall be explored including other notions of the above–mentioned use of force regime having in mind that today the law created to maintain international order is not working, or it is working but only in a limited sense since it is not persuading some States to not use the force.

In the context of R2P, by adopting the World Summit Outcome Document, the UN instead of participating in this decision–making process decided to enclose possible new paths within the Charter (Secretary General Report “Implementing the responsibility to protect”; General Assembly Resolution 63/308; SC Resolutions 1674, 1894, among others). It decided then to incorporate all of these legal constructions but nonetheless expressly included the intervention and approval of the Security Council as a requirement. At that time none of the P–5 criticized this. On the contrary, they reaffirmed it (Resolution 1674/2006 unanimously adopted) perhaps as a way of legitimizing their delegitimized position. Nowadays, facing situations where SC action is blocked because of the veto of one or more P–5 members, the others are looking to go back to an alternative view outside Article 2 (4). This would be supported by Higgins’s design, which seems to be the most suitable guideline for the dynamic processes of the international community. It could be said therefore that certain States are continuously contributing in the creation of new international rights and obligations in order to develop new paradigms, either because they understand that the 1945´s does no longer solve current issues, or because it does not serves their interests. In any case, the struggle on the decision-making process cannot be denied. The changes on the UN conception about the R2P doctrine, the division within the Security Council and the veto possibility, the returning to old arguments, they all prove that the Article 2 (4) is no longer considered “sacred” and that there are some intentions to make a change.

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’.” (more…)

AJIL Symposium: Comment on Eyal Benvenisti, Sovereigns as Trustees of Humanity

by Christopher McCrudden

[Christopher McCrudden FBA is Professor of Human Rights and Equality Law, Queen’s University, Belfast, William W Cook Global Professor of Law, University of Michigan Law School, and Leverhulme Major Research Fellow (2011-2014). I am particularly grateful to Kathleen McCrudden who provided helpful comments on an earlier draft.]

Eyal Benvenisti asks how far, if at all, national sovereign states are under an obligation to take into account the effects of their internal decisions on those outside the boundaries of the state. We can consider his argument either at a very high level of abstraction, or test his (and our) intuitions by using a worked example of a practical problem that raises the issue he discusses. I prefer the latter approach.

An example

Over the past couple of years, there has been an intense debate in the United Kingdom over whether the UK should leave the European Convention on Human Rights; as part of this larger debate, there has also been a narrower debate over whether (and if so how) the UK should implement the decisions of the European Court of Human Rights on prisoner voting (an issue on which I have blogged earlier elsewhere).  The way in which both the broader and narrower debates are conducted have potentially adverse effects well beyond the UK. The sight of the House of Commons defying the Court on prisoner voting, or high-ranking members of the Government arguing that the UK should leave the Convention, has potentially damaging effects on the authority and legitimacy of the Court and the Convention in other states.

It is one thing for the robust UK debate to be picked up in other stable constitutional democracies with good human rights records.  It is another thing entirely where the British debate is transmitted to barely democratic European states with a debatable human rights record, and a weak commitment to constitutionalism. In the latter states, the British ‘defiance’ gives aid and comfort to altogether darker forces, which see the British resistance as legitimizing their own visceral resistance to the cosmopolitan liberal vision that the Court and the Convention embody.  Is the UK under an obligation to take into account the adverse effects that the British debate, and any decisions flowing from it, may have elsewhere?

There is, of course, both an empirical as well as a normative issue in play here.  For the purposes of this post, I don’t want to get embroiled in the empirical question of whether the UK debates do have such effects externally (although I’m quite prepare to believe that they have). The question I’m interested in is whether, assuming that there are such external effects, the UK ought to take these into account. It is at this point that Eyal Benvenisti’s article is powerfully relevant, since it addresses directly the morality (as well as the legality) of ignoring what economists call ‘externalities’ in domestic decision-making.  On what might we base an obligation (whether moral or legal) to ‘internalise’ these externalities, for example in the debate over the UK’s continuing membership of the ECHR, or whether to implement the ECtHR’s decisions?

Benvenisti’s argument

(more…)

AJIL Symposium: On Medium and Message

by Jan Klabbers

[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. (more…)

AJIL Symposium: Pushing Benvenisti Further – International Sovereignty as a Relative Concept

by Armin von Bogdandy and Dana Schmalz

[Armin von Bogdandy is Director and Dana Schmalz is a Research Fellow at the Max Planck Institute for Comparative Public Law and International Law]

In another seminal piece, Eyal Benvenisti continues his well-balanced middle course between utopian cosmopolitan aspirations and resigned state pragmatism, this time by reconstructing contemporary sovereignty. Like many others, he considers the Westphalian model of state power to be neither an appropriate description of today’s world order nor a normatively appealing model for the future. Starting from an assessment of democratic deficits and dilemmas arising from limited space and resources, Benvenisti shows why a different conception of sovereignty is morally required. He then accomplishes a brilliant reconstruction of important court decisions and doctrinal evolutions that support his normative findings. Within this reconstruction, Benvenisti integrates a great variety of legal phenomena, ranging from a vessel’s right to innocent passage, to consultation duties in WTO-law, to the responsibility to protect.

These normative and legal reconstructions are impeccable, and we are sympathetic to the general thrust of Benvenisti’s argument. However, we suggest a more pluralist approach, mainly in two respects. For one, we would complement Benvenisti’s private law paradigm with a stronger focus on international public authority, which plays little role in his reconstruction. Depending on the subject matter and the institutions available, some issues might be resolved more effectively and inclusively through international institutions. At the same time and on a more basic level, we suggest construing the international sovereignty of a country in a more pluralist manner, taking into account its relevant constitutional law. We think that Benvenisti’s legal reconstruction can be thickened, in this way, while avoiding his problematic reliance on humanity as a source of public authority.

International sovereignty has changed from a founding concept to a functional concept: once, international sovereignty provided a point of closure where legal thinking could stop. Georg Jellinek perfectly captured this paradigm in 1882 when he stated that everything could be explained “through sovereignty and from sovereignty”. Today, as Benvenisti’s analysis shows, it is far better to conceive of international sovereignty functionally, so as to serve other principles, such as self-determination, human rights, or reasonable allocation of resources. Pushing Benvenisti’s reconstruction further, we propose that the functional concept should also be conceived as relative: The specific meaning of a state’s international sovereignty should be informed by its constitutional law and practice.

Benvenisti’s article perhaps presents the world in an overly uniform manner. To start with his fabulous image of the “small apartment in the densely packed high-rise”: Great as the picture is, it neglects huge differences between states. Sticking with the metaphor, we might say that some owners possess special voting rights in the owners’ association, have special access to the common property, and own a mansion out of town, to which they can escape when fed up with the neighbors. Others, by contrast, do not have such privileges, and still others have pooled their rights for common exercise. On a more legal note, the constitutional orders of China, Germany, or Lebanon enshrine deeply different understandings of the international order and the country’s place therein. A reconstructive proposal should take those differences into account. Accordingly,  international sovereignty could be informed by the respective constitutional openness towards common projects and willingness to recognize shared responsibility.

Yet, how can such relativization take place without endangering the autonomy of international law and the equality of states under international law? (more…)

AJIL Symposium: Sovereigns as Trustees of Humanity

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.]

We live in a shrinking world where interdependence between countries and communities is intensifying. This interdependence tests the limits of the traditional concept of sovereignty which crystallized at a time when distances between nations were large and cross-border externalities were rare; a time when peoples sought self-determination and self-sufficiency, justified by the perception of a perfect fit between the authors of the law and those subject to its rule. Nowadays sovereigns manage resources that are linked in many ways to resources that belong to others. They shape through daily regulatory decisions the life opportunities of foreigners in faraway countries, while the latter cannot participate meaningfully in those decisions either directly or through their governments. This reality questions the solipsistic vision of state sovereignty as the ultimate source of authority, a vision that yields outcomes that are inefficient, inequitable and undemocratic.

The misfit between the increasingly outdated and inadequate concept of sovereignty and pressing contemporary demands has led several scholars to explore more “globalist” visions, norms and institutions in lieu of state sovereignty. But one must not be too quick to endorse the demise of sovereignty and the transfer of state authority to global institutions. Sovereigns continue to be key venues for policy-making and for reviewing decisions made by global bodies. Precisely because sovereigns remain crucial global actors, their global role should be reflected in law: they must take on a “trusteeship” role that entails obligations towards all those potentially affected (negatively or positively) by their policies.

The first aim of my article is to provide a normative foundation for the claim that sovereigns should be regarded also as trustees of humanity rather than the trustees only of their own people. I present three distinct normative approaches for grounding the obligation of sovereigns to weigh other-regarding considerations: the right to self-determination whose exercise exclusively within national communities can actually undermine peoples’ ability to have their lives in their own hands; the obligation of national governments to recognize the equal moral worth of all individuals, and hence to justify why they treat non-nationals differently; and the obligation of the same governments to explain to others their exclusive use of portions of the earth, which inherently belongs to all. Each of these three interrelated grounds leads to the conclusion that sovereignty must be regarded as embedded in an encompassing global order that delineates not only states’ powers but also their obligations. These obligations essentially require sovereigns to exercise their authority in ways that take account of the interests of all individuals potentially affected by them either negatively or positively. While sovereigns may have good reasons to give priority to the interests of their citizens, they must nonetheless keep in mind the interests of those beyond their borders and, to some non-negligible degree, be accountable to them.

The article then identifies the minimal normative and procedural other-regarding obligations that arise from the trusteeship concept. My choice here is to focus on the minimal obligations is based on the pragmatic concern with the imposition of global burdens on states without safeguards that ensure appropriate space for preferential treatment of one’s own citizens and adequate mechanisms for burden-sharing among states. Obviously, the trustee sovereignty concept suggests that sovereigns have an obligation to mutually explore and develop the current system of sovereign states. But this exploration requires a separate discussion which is beyond the scope of the article.

The idea is therefore to explore the minimal obligations that apply to all branches of the sovereign state (legislatures, executives, and courts), regardless of whether other sovereigns reciprocate (although reciprocity or the lack thereof could be a relevant consideration when making the decision). These minimal obligations include the obligation to take the interests of foreigners into account when formulating and implementing policies; to provide voice in their decision-making processes to all those affected by their policies; and to accommodate foreign interests if doing so is costless to the state (or even to incur costs in cases of catastrophes). The article further suggests that these minimal obligations are already embedded in several doctrines of international law that delimit the rights of sovereigns, such as the general doctrine on abuse of rights or specific rights of passage through straits or through another state’s land.

This emphasis on minimal obligations that are primarily procedural is informed by the administrative law-based tradition, which takes decision-making processes seriously. This tradition puts faith in the power of voice of affected stakeholders and in the discipline of accountability of decision-makers. The assessment is that public participation and accountability are not only valuable intrinsically, but they also contribute to better informed, more efficient and also more egalitarian outcomes.

The invocation of “humanity” by sovereigns has too often served as mask to colonial and other types of illegitimate foreign intervention. The trusteeship concept as developed here is not susceptible to similar concerns. It is invoked not to justify intervention by one or several states in another state’s affairs (as, for example, the concept of responsibility to protect envisions), but just the opposite – it invites the foreigner to have voice in the sovereign’s decision-making processes. The minimal trusteeship obligations sets-forth a limiting set of obligations rather than an enabling one. Indeed, the main promise of the trusteeship concept lies in its limiting impact on powerful countries that shape the opportunities of individuals everywhere: global leadership generates global accountability obligations.

The article was written as a framing paper for the GlobalTrust research project that I direct at Tel Aviv University Faculty of Law. Initially funded by the Israeli Science Foundation (2010-2013), the project is now funded by a European Research Council Advanced Grant (2013-2018). The project will explore the historical and moral background of the state trusteeship concept, assess the specific obligations that states owe to foreigners stakeholders in different areas of international and constitutional law (investments and trade law, environment law, human rights law, international humanitarian law, etc.), and evaluate the possible institutional mechanisms (such as international and national courts) that could legitimize the external monitoring and review of states’ compliance with such other-regarding obligations.