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2014 ASIL Certificates of Merit Announced

by Duncan Hollis

I had the great pleasure the last several months to serve on ASIL’s Book Awards Committee (along with Jutta Brunnée, Jean d’Aspremont, Saira Mohamed, and a very well organized chair in Jacob Cogan).  I’m pleased to announce that the Society’s Executive Council has selected three winners for 2014 based on our nominations.  The winners (plus the Committee’s accompanying citation) are as follows:

Certificate of Merit for a Preeminent Contribution to Creative Scholarship:  Ryan Goodman and Derek Jinks, Socializing States: Promoting Human Rights through International Law (Oxford University Press 2013).

In Socializing States: Promoting Human Rights Through International Law, Ryan Goodman and Derek Jinks offer a groundbreaking theory of acculturation that illuminates how social processes can promote human rights and, more generally, can influence norms. “Acculturation” refers to “the general process by which actors adopt the beliefs and behavioral patterns of the surrounding culture.” The authors distinguish acculturation from two other mechanisms of social influence: “material inducement,” or the offering of rewards for conformity or punishments for nonconformity with a state’s or institution’s demands, and “persuasion,” whereby actors internalize new norms through a process of social learning and “redefine their interests and identities accordingly.” Goodman and Jinks offer a sophisticated account that both defends the relevance of acculturation and acknowledges its weaknesses in some areas. The theoretical complexity and methodological rigor of Socializing States make this a book that should be studied by any scholar interested in promotion of human rights, the spread of global norms, regime design, or compliance. It has already changed scholarship in these areas and will certainly continue to influence the field in the years to come.

Certificate of Merit for High Technical Craftsmanship and Utility to Practicing Lawyers and Scholars:  Robert Kolb, The International Court of Justice (Hart Publishing 2013)

Robert Kolb’s International Court of Justice provides a magisterial, lucid study of its subject. The breadth and depth of the treatment are impressive: Kolb takes the reader from the history of the Court, to its role in international society, to the more technical questions concerning its composition, powers and procedures, to the development of its jurisprudence, and to its future. The finely grained discussion provides much more than a mere survey of the Court’s constitutive instruments and decisions. It engages the Court as an institution and asks how it actually operates, and secures efficacy and authority in doing so. The book’s careful and detailed coverage of the Court’s legal framework and operation will benefit practitioners and scholars alike. There is no doubt that Kolb’s volume immediately takes a place among the authoritative references on the Court.

Certificate of Merit in a Specialized Area of International Law:  Bardo Fassbender and Anne Peters eds., The Oxford Handbook of the History of International Law (Oxford University Press 2012).

The Oxford Handbook of the History of International Law innovatively and comprehensively provides a timely and ambitious global history of international law from the sixteenth century to the mid-twentieth century. Under the skilled editorship of Bardo Fassbender and Anne Peters, the contributors, experts who themselves come from all parts of the world, present a history that imagines international law as the product of different regions, cultures, actors, and eras. Setting a new agenda for the field, the Handboowill be the indispensable starting point for students and researchers exploring the history of international law.

The awards will get presented at this year’s ASIL Gala Dinner.  I’m looking forward to seeing the authors there and having a chance to congratulate them personally on their achievements.

Olympic Free Agency (An Idea Whose Time Has Not Come, Apparently)

by Peter Spiro

I have a piece up on Slate arguing that the Olympics should no longer require competitors to have the nationality of the country for which they compete.

A journalist friend of mine once told me, “Don’t ever read the comments. Just don’t.” Misguidedly thinking that Slate readers were somehow exempt from the laws of the internet, I made that mistake. Maybe 10 to 1 against. A lot of ad hominem stuff. (To this one, really, I’m not such a bad guy.) Doesn’t everyone know that we academics are supposed to play the role of the court jester, saying things that other people can’t?

On the substantive side, two responses:

1) The seemingly reflexive opposition to eliminating nationality requirements (“I’m not even going to read this piece”) takes no account of athlete interests. If you’re the number three player in China, you’re probably also the number three player in the world, but because of the two-competitor per-country quota in singles table tennis, you don’t get to compete. That seems unfair.

Restrictions on transfer of nationality are in some ways worse. The Olympic Charter requires a three-year cooling-off period when an athlete wants to compete for another country (waivable at the discretion of the country of origin). Sporting federation rules add another layer, sometimes extreme. Soccer and basketball prohibit transfers altogether. Once you’ve played for one country at the international level you cannot play for any other. That looks to me like a human rights problem, a kind of modern-day feudalism.

2) A number of commenters suggest my proposal will lead to corporate teams rather than national ones. I’m not suggesting (for now) that the Olympics abandon the state-based orientation, for team sports at least, just that individual players not be required to have citizenship in the country whose team they’re playing for.

But the role of corporate sponsorship is implicated here. It might be part of the answer. To the extent that the Jamaican bobsled team attracts a lot of attention, corporations should be interested in footing training bills in a way that Jamaica the state may not be. A big part of the charm is that the team is labeled as Jamaican. Corporations will have an interest in backing teams not just from the United States and other big countries. (Here is an example from Sochi involving tiny Tonga, though perhaps not one to be emulated.)

Regardless of nationality rules, we seem to be moving towards corporate sponsorship in any case. Would that be the end of the world? In Korea, baseball teams sport the name of companies not cities (and the fans are astonishingly fanatic). To the extent companies had their name on Olympic scorecards, they might be even more generous with their teams, with athletes and fans as the ultimate beneficiary. But I mean this as a THOUGHT EXPERIMENT ONLY, so please, no need for negative responses below!

For the First Time, U.S. Says China’s South China Sea Nine Dash Line is Inconsistent with International Law

by Julian Ku

As Jeffrey Bader of Brookings notes, the U.S. government has, for the first time, publicly rejected the legality of China’s “Nine Dash Line” claim in the South China Sea (for a little background on the unusual Nine Dash Line, see an earlier post here). This is a semi-big deal as it shows how the US is going to use international law as a sword to challenge China’s actions in this region.

During testimony before Congress, U.S. Assistant Secretary of State for East Asian and Pacific Affairs Daniel Russel stated:

Under international law, maritime claims in the South China Sea must be derived from land features. Any use of the ‘nine-dash line’ by China to claim maritime rights not based on claimed land features would be inconsistent with international law. The international community would welcome China to clarify or adjust its nine-dash line claim to bring it in accordance with the international law of the sea.

It is actually surprising that the U.S. government has never actually publicly stated this argument before, since the Russel statement fits comfortably within the U.S. government’s long-standing positions on the nature of maritime territorial claims.  And China could not have been unaware of US views on its 9-dash-line claim. But the U.S. also likes to repeat that it takes no position on any sovereignty disputes, and since the Nine Dash Line is sort of a sovereignty claim, it has always been a little unclear whether the US was neutral on the Nine-Dash Line as well.

Russel’s statement ends this ambiguity, and also offers more explanation on how the US “neutrality” in sovereignty disputes does not mean that it has no view on how those disputes would be resolved.

I think it is imperative that we be clear about what we mean when the United States says that we take no position on competing claims to sovereignty over disputed land features in the East China and South China Seas. First of all, we do take a strong position with regard to behavior in connection with any claims: we firmly oppose the use of intimidation, coercion or force to assert a territorial claim. Second, we do take a strong position that maritime claims must accord with customary international law.

Again, I can’t imagine this is a new US government position, but it is useful to make it clear publicly.

By tying itself to customary international law, the U.S. is challenging China to try to fit its Nine Dash Line into the legal framework created by the UN Convention on the Law of the Sea.  Even some clarification from China as to the legal basis for its Nine Dash Line would be helpful, since it would shift the burden on China to explain its legal position.

Moreover, the US government is also offering a legal roadmap for other countries that are not claimants in the region. It is hardly a controversial legal position, and should be fairly easy for the EU, Canada, or Australia to adopt (assuming they don’t mind tweaking China).

Having wedded itself to international law, the US will now have to see whether China will start making non-legal claims or even noises about withdrawing from UNCLOS.  The law definitely is not on China’s side here, but that doesn’t mean that China is going to back down in the SCS.

AJIL Symposium: Comment on “The Travaux of Travaux: Is the Vienna Convention Hostile to Drafting History?”

by Richard Gardiner

[Richard Gardiner is a Visiting Professor at University College London, Faculty of Laws]

The article which this symposium addresses is important, timely, and elegant.

It is an important study because it examines one of the most common misunderstandings about the VCLT provisions on the role of preparatory work in treaty interpretation. It lays to rest the mistaken idea that an interpreter may only consider preparatory work if interpretation of a treaty provision by applying the general rule reveals ambiguity or obscurity, or leads to a result which is manifestly absurd or unreasonable. As the study shows, these considerations are only prerequisites for use of preparatory work to determine meaning, not for its much wider role of confirming meaning.

This is particularly timely because the ILC may itself have given the misleading impression in its recent (and otherwise very useful) work on subsequent agreements and practice, suggesting that any recourse to preparatory work is limited by preconditions:

Article 32 includes a threshold between the primary means of interpretation according to article 31, all of which are to be taken into account in the process of interpretation, and “supplementary means of interpretation” to which recourse may be had when the interpretation according to article 31 leaves the meaning of the treaty or its terms ambiguous or obscure or leads to a result which is manifestly absurd or unreasonable. (ILC 2013 Report, Chapter IV, A/68/10, p 14, Commentary on Draft Conclusion 1, para (3), footnote omitted.)

This seems to lose the careful distinction in the 1969 ILC/VCLT scheme between general use of preparatory work to confirm and its conditioned use to determine meaning.

The most elegant feature of the study is its use of the preparatory work of the VCLT to confirm the proper meaning of the Vienna provisions themselves. (more…)

More on the Al Qaeda Name

by Deborah Pearlstein

For those who try to keep up with the shifting nature of radical Islamist groups – groups too many in the media sometimes wrongly link to Al Qaeda –the stories earlier this week on the group formerly known as Al Qaeda in Iraq, now calling itself ISIS, are significant:

Early Monday morning the leadership of al-Qaeda disowned Islamic State of Iraq and Greater Syria (ISIS), the most effective of its two franchises fighting in Syria, in a maneuver that could alter the trajectory of the fight against President Bashar Assad. In a message posted on jihadi websites, the al-Qaeda general command stated that its former affiliate “is not a branch of the al-Qaeda group [and al-Qaeda] does not have an organizational relationship with it and is not the group responsible for their actions.”

Evidently not among those trying to keep up with the latest – the U.S. House Foreign Affairs Committee, which today held a hearing entitled: “Al-Qaeda’s Resurgence in Iraq: A Threat to U.S. Interests.”

AJIL Symposium: Is the Vienna Convention Hostile to Drafting History? A Response to Julian Davis Mortenson, Part 2

by Ulf Linderfalk

[Dr. Ulf Linderfalk is a Professor of International Law at the Faculty of Law at Lund University, Sweden. The first part of his comments can be found here.]

In what sense does the VCLT give a description of the way to understand a treaty?

The way Julian describes prevailing legal doctrine, the presumption against preparatory work is effectuated “by a set of threshold restrictions that relegate drafting history to ‘a carefully bounded and contingent role’, for use only … ‘when the text [of a treaty] cannot, in itself, guide the interpreter’” (pp. 782-783). Julian finds this position to be inconsistent with legal practice. As he says, (p. 783)

the ‘strange thing’ about Articles 31 and 32 ‘is that the one serious limit these rules set, is constantly ignored: I cannot think of a serious lawyer who would not at least have a look at some of the preparatory work to bolster her conclusion or, if necessary, reconsider her conclusion, regardless of whether the interpretation without the preparatory works would lead to ambiguous or absurd results.’

Such statements indicate a failure to distinguish between the scholarly investigation and description of an activity such as the interpretation of treaties in a context of discovery and in a context of justification, respectively.

Investigating the usage of Articles 31-32 of the VCLT in a context of discovery, scholars’ primary interest is with the mental processing of the kinds of material listed in those two provisions. Scholars are interested in knowing the way some given agent or agents, or class of agents (such as international lawyers or judiciaries, for instance) actually use particular means of interpretation in reaching an understanding of a treaty. Investigations ask questions such as the following:

(1)   When lawyers think they have an insufficient understanding of a treaty, do they generally consult preparatory work?

(2)   In any situation described in Question (1), do lawyers generally consult the relevant conventional language or languages, that is, the lexicon, grammar, and pragmatic rules of the language used for the authenticated version or versions of the treaty?

(3)   In any situation described in Question (1), to the extent that lawyers consult preparatory work and conventional language, do they generally consult conventional language before they consult preparatory work, or rather the opposite?

Investigating the usage of Articles 31-32 of the VCLT in a context of justification, scholars’ primary interest is with international law as a reason for action. Scholars are interested in knowing under what particular condition or conditions an understanding of a treaty will be considered legally correct. Investigations ask questions such as the following:

(4)   In a situation where a treaty is in need of clarification, when does an agent have a legally sufficient reason to understand the treaty in accordance with conventional language?

(5)   In any situation described in Question (4), when does an agent have a legally sufficient reason to understand the treaty in accordance with whatever can be inferred from its preparatory work?

(6)   In any situation where the usage of conventional language and preparatory work imply the adoption of different meanings, when does an agent have a legally sufficient reason to understand the treaty in accordance with conventional language rather than in accordance with whatever can be inferred from preparatory work?

(7)   In any situation described in Question (6), when does an agent have a legally sufficient reason to understand the treaty in accordance with whatever can be inferred from preparatory work rather than in accordance with conventional language?

Obviously, like most rules in the VCLT, Articles 31-32 give a description of the proper justification of legal propositions. They do not seek to teach us anything about the mental processing of interpreters of interpretation data such as preparatory work and conventional language. Rather, they seek to teach us something about the conditions under which the understanding of a treaty in accordance with each respective set of data will be considered legally correct. Any failure to see this will quite naturally cause questions like that posed by Julian on page 787:

[The Confirmation Route] allows the use of travaux to check and reassess the provisional hypothesis yielded under Article 31. Unsurprisingly, this inquiry usually validates the interpreter’s hypothesis. But not always. Sometimes, a fair and thorough analysis of the travaux will convince an interpreter that the drafters meant to convey something different from her original understanding. What happens then?

Obviously, if Articles 31-32 gives a description of the interpretation of treaties, not in a context of discovery, but in a context of justification, then nothing in the VCLT prevents an agent from consulting the preparatory work of a treaty before he/she/it engages in serious studies of conventional language, the context of the treaty, or its object and purpose. The order of consultation is immaterial. In a context of justification, the relevant questions are whether or not the meaning that the agent possibly discovers from studying preparatory work can be justifiably inferred; whether Article 31 provides sufficient reason to confer a different meaning on the treaty; and if so, whether there are sufficient reasons to refer to that meaning as manifestly absurd or unreasonable, in the sense of Article 32.

What is the appropriate method for a scholarly analysis of Articles 31-32 of the VCLT?

Julian’s conclusion about the role and significance of preparatory work for the interpretation of treaties builds on an analysis of the meaning of Article 31, paragraph 4, and Article 32 of the VCLT. The methodology used for this analysis implies very little usage of other interpretation data than the preparatory work of the VCLT, including Summary Records and Documents of the Vienna Conference; Reports of the 1966 meetings of the Sixth Committee of the UN General Assembly; the Final Draft Articles With Commentaries adopted by the International Law Commission in 1966; comments given by governments on the ILC Final Draft Articles; the Draft Articles With Commentaries preliminarily adopted by the International Law Commission in 1964; Summary Records of the ILC meetings held in 1964 and 1966; and the Third and Sixth Reports of the ILC Special Rapporteur on the Law of Treaties. Obviously, this choice of methodology assumes the conclusion. Julian relies primarily on preparatory work to show that preparatory work can be used as a “primary means of interpretation” – on an equal footing with conventional language, context, and the object and purpose of a treaty. To Julian’s defense, it could perhaps be contended that whatever other methodology he would have chosen, he would have appeared as internally inconsistent. This contention, however, builds on a misunderstanding of the role of the international legal scholar.

Treaty interpretation is an activity that engages many different kinds of agents, including, for example, international legal scholars, judiciaries, state organs and representatives, and state counsels. Not all agents are subject to the same societal constraints, of course. Depending on the capacity of a treaty interpreter, consequently, different lines of action are typically expected. So, for example, is a person acting as state counsel expected to choose the line of action that serves the particular interest of his or her employer or client as effectively as possible. One-sidedly advocating a particular meaning of a treaty, without caring too much about other possible meanings or counter-arguments, is standard procedure. If instead the person had acted in the capacity of an international legal scholar, like Julian Mortenson does, this same line of action would be considered improper. A scholar is expected to consider openly the possibility of conferring different meanings on a treaty. He or she is expected to conduct an open-minded assessment of those different possibilities, making allowance for arguments and counter-arguments alike.

Consequently, as I see it, the only appropriate method for Julian to conduct his analysis of the meaning of Articles 31-32 of the VCLT is to assess his preferred interpretation with an open mind to other possible alternatives. Thus, he should have inquired more carefully into (i) the wording of the VCLT, (ii) the organizational structure of Articles 31-32 of the VCLT, and (iii) the general significance and possible ways of reading ILC materials. In so doing, his entire argument would have come out rather differently. For those with a particular interest in issues of treaty interpretation, I have developed this argument in a working paper posted on the SSRN.

AJIL Symposium: Is the Vienna Convention Hostile to Drafting History? A Response to Julian Davis Mortenson, Part 1

by Ulf Linderfalk

[Dr. Ulf Linderfalk is a Professor of International Law at the Faculty of Law at Lund University, Sweden.]

Julian’s article focuses on a single proposition (p. 780)

“[W]hen an interpreter thinks a text [of a treaty] is fairly clear and produces results that are not manifestly unreasonable or absurd, she ought to give that prima facie reading preclusive effect over anything the travaux [préparatoires] might suggest to the contrary.”

Specifically, Julian argues (p. 781), that this proposition – while today shared by an overwhelming majority of international judiciaries and legal scholars – “cannot be reconciled with the agreement actually reached in 1969” and embodied by Articles 31 and 32 of the 1969 Vienna Convention on the Law of Treaties (VCLT).

In critically assessing Mortenson’s article, I find that it builds on three assumptions:

  • In the final analysis, the legally correct meaning of a treaty is determined by the intention of its parties. Thus, when interpreting a treaty, the ultimate purpose is to find out how the original parties to the treaty actually intended it to be understood.
  • Articles 31 and 32 of the VCLT guide interpreters to discovering the common intention of treaty parties. Thus, ordinary meaning, context, preparatory work, and other means of interpretation help interpreters understand the legally correct meaning of a treaty.
  • A detailed analysis of the preparatory work of the Vienna Convention is an appropriate method for a scholarly analysis of the legally correct meaning of Articles 31 and 32 of the VCLT.

As I will explain in my two posts for this Symposium, I think all three of Julian’s assumptions are either fundamentally flawed or seriously debatable. Readers with a particular interest in issues of treaty
interpretation might want to consult the slightly more elaborate working paper that I have recently posted on the SSRN.

(more…)

AJIL Symposium: The Travaux of Travaux

by Julian Davis Mortenson

[Julian Davis Mortenson is Assistant Professor of Law at Michigan Law]

It is often asserted that the Vienna Convention on the Law of Treaties relegates drafting history to a rigidly subsidiary role in treaty interpretation. Many commentators go so far as to suggest that the VCLT entrenches a categorical prejudice against travaux préparatoires—the preparatory work of negotiation, discussions, and drafting that produces a final treaty text. Because of this alleged hostility to history as a source of meaning, the conventional wisdom is that when an interpreter thinks a text is fairly clear and produces results that are not manifestly unreasonable or absurd, she ought to give that prima facie reading preclusive effect over anything the travaux might suggest to the contrary.

As The Travaux of Travaux: Is the Vienna Convention Hostile to Drafting History? demonstrates, however, this conventional wisdom cannot be reconciled with the agreement that was actually concluded in 1969. Careful analysis of the multi-decade process that led to the VCLT shows that, far from adopting a doctrinally restrictive view of drafting history, the Vienna Conference sought to secure the place of travaux as a regular, central, and indeed crucial component of treaty interpretation. In reaching this conclusion, the article draws on a range of published and unpublished sources, including minutes from meetings of the Institut de droit international, the International Law Commission, the UN General Assembly in both its plenary and Sixth Committee sessions, and the Vienna Conference itself; internal memoranda and other documents circulated at each of those institutions; and proposed drafts and amendments that were submitted throughout the process.

It is true (and likely a source of modern confusion) that Vienna Conference delegates rejected a U.S. proposal to formulate the rules of treaty interpretation as a totality-of-the-circumstances balancing test. But that had nothing to do with hostility to travaux as such, much less with any desire to impose strict threshold requirements on their use. Rather, the delegates were rejecting Myres McDougal’s view of treaty interpretation as an ab initio reconstruction of whatever wise interpreters might view as good public policy. They objected to the purpose for which New Haven School interpreters wanted to use travaux—not to drafting history as a source of meaning per se.

To the contrary, the drafters repeatedly reiterated that any serious effort to understand a treaty should rely on the careful and textually grounded resort to travaux, without embarrassment or apology. They themselves leaned heavily on travaux when debating any legal question that turned on the meaning of an existing treaty. And each time a handful of genuinely anti-travaux delegates attempted to restrict the use of drafting history to cases where the text was ambiguous or absurd, those efforts were roundly rejected.

The understanding that emerged was of interpretation as a recursive and inelegant process that would spiral in toward the meaning of a treaty, rather than as a rigidly linear deductive algorithm tied to a particular hierarchical sequence. In any seriously contested case, interpreters were expected automatically to assess the historical evidence about the course of discussions, negotiations, and compromises that resulted in the treaty text—in short, the travaux. The modern view that Article 32 relegated travaux to an inferior position is simply wrong. The VCLT drafters were not hostile to travaux. They meant for treaty interpreters to assess drafting history for what it is worth in each case: no more, but certainly no less.

Congratulations to Julian

by Kenneth Anderson

Warmest congratulations to OJ’s very own Julian Ku, on his election to ALI – the American Law Institute.  (For those unfamiliar with ALI and its work, this is a great honor in the American legal profession.  Among other things, it produces the Restatements of Law, as well as model codes and annotated commentaries and “Principles” on various legal topics.)

Ukraine: Popular Protests, Human Rights Reports, and the Push and Pull of Normative Competition

by Chris Borgen

Following up on my earlier posts on the normative aspects of the struggle concerning Ukraine and other former Soviet countries (1, 2, 3) in the run-up to, and the aftermath of, the EU’s November summit in Vilnius, where Ukraine had been expected to sign an Association Agreement with the EU.  However, the Yanukovich regime backed out at the last minute. I want to focus on recent developments in what analysts are calling the “post-Vilnius” atmosphere and what they reflect about how states and citizens compete over norms.

First, there is the spread of protests from the relatively  pro-EU western Ukraine into the relatively pro-Russia eastern Ukraine.  Electoral maps of Ukraine (1, 2) show the ideological division and why Ukraine is an example of what I’ve called a systemic borderland.  The fact that the anti-government protests moving eastward across the map may be a sign of an increasing tilt towards following the original path of the government in seeking closer association with the EU.  But it also may be nothing more that the populace being tired and angry of the political gridlock and motivated by pictures of anti-protestor violence in the western cities. In this latter scenario, the citizens in eastern Ukraine still want to be more closely tied with Russia, they are just sick of their government brutalizing their own people, for whatever the reason. News reports about protests are one thing, but understanding why people are protesting is very important in situations concerning whether or not domestic norms are in play.

I haven’t seen any significant data on whether there is a deeper normative shift taking place or whether the eastern protests are primarily a reaction to offensive government tactics.

The second development of note is the broadening of the Russia/ EU tensions. The New York Times article on this issue from the January 28 online edition is well worth a full read. Here are a few key points related to the normative aspects of the post-Vilnius tensions:

The future of Ukraine and disagreements over how Russia and EU have approached this are the drivers of the current international bickering. (Keep in mind the domestic tensions are also between the Ukrainian citizens and their government over how the Ukrainian government reacted to protests.)  The international tensions stem from a concern about how Russia perceives its future, vis-à-vis Europe. From the Times:

Russia, [Michael Emerson, the former EU envoy to Moscow] said, needs to show that “all its talk about a ‘common European house’ from Lisbon to Vladivostok is not just a slogan and that Ukraine can be comfortable with both the E.U. and Russia.”

In short: is there one Europe or two?  Will Ukraine be a bridge uniting Europe or a border between two normatively distinct Europes?  A related issue is whether Russia even wants to explore deepening ties with the EU. The Times continues… (Continue Reading)

TED Talks, Placebo Politics, and the Work of International Lawyers

by Chris Borgen

I recently wrote a post that described the virtues of international lawyers thinking about the future and having an international law analog to “design fiction.” The main point being we as international lawyers are often so focused on historical examples, issues, and analogies that we need to spend more time considering the technological changes that are upon us and changing the world in which we live. A bit of tech futurism + international legal practice.

One of the best-known critiques of the profession considered the lack of imagination of the international legal profession. In 2001, Martti Koskeniemi wrote in The Gentle Civilizer of Nations that international law had been depoliticized and marginalized “as graphically illustrated by its absence from the arenas of today’s globalization struggles” or it had become “a technical instrument for the advancement of the agendas of powerful interests or actors in the world scene.” (page 3) He further wrote that international lawyers “in the past 40 years have failed to use the imaginative opportunities that were available to them, and open horizons beyond academic and political instrumentalization, in favor of worn-out internationalist causes that form the mainstay of today’s commitment to international law.” (page 5)

Now, having made a plea for a little more tech futurism in international law, I note that Professor Benjamin Bratton has just done a great job of taking the form of technological futurism most prevalent in TED conferences and smacking it upside the head a few times. Moreover, he did this in a sharp TEDx presentation (and an essay in The Guardian). I highly recommend watching the full TED talk. There’s a lot there that also applies to international legal profession.

Bratton describes the problem of “placebo politics”—focusing on technology and innovation as the solution to major world problems, but not taking into account the difficult issues of history, economics, and politics that bedevil actual workable solutions. Problems become oversimplified. He wrote in The Guardian:

Perhaps the pinnacle of placebo politics and innovation was featured at TEDx San Diego in 2011. You’re familiar I assume with Kony2012, the social media campaign to stop war crimes in central Africa? So what happened here? Evangelical surfer bro goes to help kids in Africa. He makes a campy video explaining genocide to the cast of Glee. The world finds his public epiphany to be shallow to the point of self-delusion. The complex geopolitics of central Africa are left undisturbed. Kony’s still there. The end.

You see, when inspiration becomes manipulation, inspiration becomes obfuscation. If you are not cynical you should be sceptical. You should be as sceptical of placebo politics as you are placebo medicine.

For more on Kony 2012, see our discussion of it, here.

Bratton continued:

If we really want transformation, we have to slog through the hard stuff (history, economics, philosophy, art, ambiguities, contradictions). Bracketing it off to the side to focus just on technology, or just on innovation, actually prevents transformation.

Instead of dumbing-down the future, we need to raise the level of general understanding to the level of complexity of the systems in which we are embedded and which are embedded in us. This is not about “personal stories of inspiration”, it’s about the difficult and uncertain work of demystification and reconceptualisation: the hard stuff that really changes how we think. More Copernicus, less Tony Robbins.

[Emphases added.]

International lawyers can be (but aren’t always) good at the facts on the ground, the messy realities of history, politics, economics. If my previous post was about how lawyers need to keep a weather eye on how new tech is changing the present and shaping the future, then Bratton reminds us how the technologists need to appreciate the hard realities of the present and to remember the lessons of past. In other words, each of us has a lot to learn from the other.

Welcome to the Blogosphere AJIL Unbound

by Duncan Hollis

I’m pleased to flag the fact that the American Journal of International Law has recently launched its own blog — AJIL Unbound.  Interested readers can find out more about the project and the Journal‘s interest in reader feedback here.  In the meantime, AJIL Unbound is currently hosting an on-line discussion of the U.S. Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co. in concert with the Journal‘s print-based Agora on that same case in its October 2013 issue.  I look forward to reading these posts and also to seeing how AJIL Unbound develops and evolves in the weeks and months ahead.