Author Shana Tabak Responds to Comments from Ruti Teitel & Vasuki Nesiah

by NYU Journal of International Law and Politics

[Shana Tabak is a Visiting Associate Professor of Clinical Law at The George Washington University Law School, where she is also a Friedman Fellow with the International Human Rights Clinic. She is the author of False Dichotomies of Transitional Justice: Gender, Conflict and Combatants in Colombia, 44 N.Y.U. J. Int’l L. & Pol. 103 (2011).]

I’m very grateful to Professors Ruti Teitel & Vasuki Nesiah for taking the time to respond to my article, False Dichotomies of Transitional Justice. They have both offered generous comments and insights, and I’d like to offer a few brief words in response.

Professor Teitel highlights that questioning the role that gender ought to play in transitional justice may, in and of itself, generate alternative perspectives on conflict. I couldn’t agree more with this assertion; one of the central goals of my article is that scholars and practitioners ask not only the “gender” question, but also ask, (with thanks to the scholarship of Mari Matsuda) the “other” question, thereby considering what other normative structures may be intertwined with gender as a society seeks to re-define itself as it emerges from conflict.

In referencing Catharine MacKinnon’s recommendation that the law of war might provide leverage with which to surpass common gendered dichotomies within domestic attempts to implement transitional justice, Teitel provides an important reminder of the ways in which legal systems interact with and build upon one another. Due to its explicit references to gendered violence, the international law of war “humanizes” women from a legal perspective, and this simple recognition can itself transform traditional approaches that transitional justice mechanisms may, unwittingly, rely upon as I discuss throughout this article. Certainly this recognition is one that must be sought within a transitional justice scheme; it also demonstrates the ways in which progress regarding the role of gender in transitional justice may be incremental and context-specific. In the synthesis of gendered approaches to transitional justice that I outline in my article, I attempt not to undermine the importance of the revolutionary yet basic recognition that women are “human.” Instead, I demonstrate that this may be the starting point for transitional justice, and that mechanisms must build upon these advances and aspire to do more. They must not rely exclusively on mechanisms of the law of war, which may reinforce women’s positioning solely as victims, may relegate men to the position of perpetrators, and may neither fully encompass the reality of either nor challenge preconceived norms regarding gender.

In her post, Professor Nesiah challenges the manner by which gender-oriented scholarship best offers policy proscriptions, and expresses concern that specific revisions to transitional justice or DDR may undermine critical theory’s broader and more ambitious project of restructuring the normative role of gender in society.

In offering a gender-oriented critique, my article’s use of critical perspective, critical though it may be, is rooted in the notion that transitional justice is not merely a theoretical approach, but must seek to provide commentary on and proscribe remedies for the real-world issues it identifies. I offer critique that attempts to encompass the theoretical and the tangible, and recognizes the ways in which a gender critique complicates how the work of transitional justice is done. Despite my article’s rigorous analytical examination of three false dichotomies within transitional justice, I aim for this article to also provide guidance for the design and implementation of transitional justice mechanisms.

Therefore, I don’t share Nesiah’s claim that a gender-oriented critique must be poised with fangs ready to attack any tangible revisions, large or small, to transitional justice mechanisms. In adopting a gender-oriented approach, I offer some critique to previous approaches of transitional justice, but I also express a great debt to those scholars who developed means of seeking human rights accountability for all genders, such as the legal scholars who, after centuries of it being a reality of wartime, finally defined rape as a crime of war.

To be clear, however, my article offers more than simple policy prescriptions or deference to re-legitimization of the state, arguing that it is crucial that transitional justice must “actively resist simply re-cementing societal relationships that laid the groundwork for conflict in the first place.” I agree with Nesiah’s claim that a gender-oriented critique calls attention to the normalization of structural violence as well as structural economic inequities. I emphasize these topics through exposure of traditional transitional justice mechanisms’ reliance on the public / private dichotomy, which may highlight violations of civil and political rights, while neglecting economic and social rights violations which may be more acutely felt by both male and female victims.

I’ve truly enjoyed the opportunity to have a virtual discussion with these two scholars whose work has so influenced my own thinking on this topic, and I look forward to future comments and conversations.

Ruti Teitel Responds to Shana Tabak

by NYU Journal of International Law and Politics

[Ruti G. Teitel is the Ernst C. Stiefel Professor of Comparative Law at New York Law School.]

I am happy to join the conversation on Shana Tabak’s “False dichotomies of Transitional Justice Gender, Conflict and Combatants in Colombia,” forthcoming in the next issue of the NYU Journal of International Law & Politics. Tabak’s article is a thoughtful meditation on the difficult issues surrounding gender conflict and justice with specific reference to the ongoing situation in Columbia. Her article is an example of recent scholarship e.g., On the Frontlines (OUP 2011) that draws attention to the place of gender in considerations of transitional justice in conflict and

The contribution of the article is in its critical challenge to any simplistic approach to the question of what role gender ought to play. Indeed as Tabak notes the scholarship in this area all too often suffers from false dichotomies of war/peace: conflict/postconflict; male/ female; ordinary /transitional. Indeed, one might add the core dichotomies that relate to the problem of reconciling law and change. Prior to publishing Transitional Justice (2000) I coined the term in order to evoke the dual nature of the challenge of promoting rule of law and justice in political transition—both forward-looking and backward-looking at the same time.

But once these false dichotomies are conceded, where does gender belong in the project of transitional justice? The question in Tabak’s words is “What might a genuinely feminist version of transitional justice look like?” She anchors her critique on the specifics of the Colombian conflict and the significant participation of women in that conflict as combatants. Women find themselves on all sides of conflict—gender cuts across the victim-perpetrator divide. This crucial reality in Tabak’s view was not sufficiently recognized in Colombia’s Justice and Peace Law providing for demobilization but which lacked gender specificity and therefore failed to adequately account for and support former female guerrilla forces in the post conflict period. Instead, Tabak argues for a continuum of possibilities including more “holistic” solutions that may well venture beyond the confines of the law and its modalities, to get beyond the categories of victim-perpetrator, and consider impact more broadly on the community.

Still, one cannot help but wonder if the importance of this question of what role gender ought to play in situations of conflict and post/conflict couldn’t itself generate alternative perspectives on what counts in this context. Indeed, noted feminist Catherine Mackinnon argues in recent work that women ought to turn to the law of war, and related international legal space that might enable getting beyond the usual dichotomies that plague “domestic” law. For, after all, it is the law of war that explicitly addresses gendered violence (consider the International Criminal Court’s Rome Statute criminalizing sexual violence as both a “war crime” and a “crime against humanity.”). Beyond, that the law of war contemplates enforcement mechanisms, as well as for recognition of change in status and treatment in violent conflict’s aftermath. Here, one might think of East Timor where post conflict status contemplated a move from combatants to “veterans” thus laying the basis for shared status and recognition with men as well as offering a basis for pensions and other added support. As I argue in my new book Humanity’s Law (OUP 2011), the turn to international humanitarian law may well reframe the ordinary gender-related dichotomies so to draw attention to women’s humanity under the law—such a move rendering them human juridically speaking and in this way the international legal regimes and fora though they may seem to involve distant conflicts may also lay the basis for changed status and recognition that might have spillover transformative effects at home.

From False Dichotomies to a Real One: A Response to Shana Tabak by Vasuki Nesiah

by NYU Journal of International Law and Politics

[Vasuki Nesiah is an Associate Professor of Practice at NYU’s Gallatin School of Individualized Study.]

From manufacturing petrol bombs in their homes in Northern Ireland to planning assassinations in Colombia, female combatants confound received scripts of gender and war. Shana Tabak’s article challenges the analytical frameworks deployed by orthodox approaches to transitional justice, lays out an alternative framework that she situates in critical ‘gender oriented’ scholarship and then draws from this framework to enter the world of female combatants. For Tabak this alternative framework highlights problems with orthodox transitional justice approaches to female combatants but also suggests policy directions for how we may reform transitional justice to better serve these combatants.

Significantly the challenge to orthodox approaches is in fact a challenge to two strands – both a gender-neutral strand, and what we may describe as a “traditional” feminist strand invested in female victimhood. I found Tabak most helpful in exposing the arenas of convergence between these two strands. While traditional feminism often sees itself as opposing the ‘gender neutral’ approach, Tabak reveals that the gender neutral strand and the traditional feminist strand share background assumptions regarding the dichotomies between conflict and non-conflict, victims and perpetrators, and even public and private. Equally, Tabak was helpful in systematically outlining key insights of critically oriented feminist scholarship – what she identifies as ‘gender-oriented approach to transitional justice.’

I part company with Tabak when she moves from this mapping of debates to an analysis of female combatants in Colombia. It is indeed the case that these issues challenge orthodox transitional justice. However, the implications of critical feminism may not fall neatly into the policy prescriptions that Tabak highlights. Tabak suggests that if we recognize that gender neutral DDR programs and interventions premised on women as victims do not address the issues of female combatants then we are unlikely to encourage demobilization, empower demobilized women combatants in their civilian lives or engender civic trust. Rather, she suggests that transitional justice interventions have to become more ‘holistic’ and multifaceted through strategies such as avoiding gender stereotyping in “social services” and making proactive efforts to ensure that DDR initiatives (from demobilization packages to job training programs) address opportunities for women. In other words, let’s be more context sensitive, and indeed, gender sensitive, to ensure meaningful inclusion.

On the one hand, no one can argue with tailoring DDR packages to the specificities of the context or more proactive and nuanced approaches to gender inclusion. On the other, to see the specific revisions to DDR programs that she makes as the end result of critical ‘gender oriented’ scholarship would be to defang the critique and domesticate the extent to which it challenges orthodox transitional justice. When critical traditions have taken on the “false dichotomies of transitional justice,” they have also highlighted that what is at stake is the extent to which extraordinary violence and violence on the body obscures and normalizes ordinary structural violence. Thus the response cannot be to once again foreground the battlefield in focusing on female combatants as combatants; rather (as Tabak understands) we need to also look at the structural issues that engendered the conflict. This may not be then merely about ameliorative measures for gender sensitive employment opportunities or inclusion of women’s clothing in DDR packages but a more radical push to restructure economic arrangements. In this brief response, I do not have time to highlight multiple examples of the internal tension that flows through the second part of Tabak’s paper but again and again one sees that the need to challenge the enabling conditions of conflict is clearly recognized in her analytical rethinking of orthodox transitional justice but it gets neutered in her discussion of the implications of this rethinking. There she defers to efforts that “re-legitimize the state” and “build civic trust”. There is, I would argue, deep political stakes here that cannot be reconciled with invocations of a “holistic” transitional justice framework; coating state policy initiatives with a layer of gender sensitivity is not on a seamless continuum with challenging social relationships. This is not to trivialize Tabak’s proposals but to highlight a disjuncture between the radical potential in the analytical framework she endorses and the ameliorative, small-bore policy prescriptions she advances. This is a real dichotomy.

False Dichotomies of Transitional Justice: Gender, Conflict and Combatants in Colombia

by NYU Journal of International Law and Politics

[Shana Tabak is a Visiting Associate Professor of Clinical Law at The George Washington University Law School, where she is also a Friedman Fellow with the International Human Rights Clinic.]

Although the field of transitional justice has made great strides in addressing harms perpetrated against women in the aftermath of conflict, this paper argues that transitional justice mechanisms mistakenly rely on three false dichotomies with regard to the role of gender in conflict. In order for transitional justice mechanisms to achieve success in reordering society, promoting justice, and overcoming past trauma and human rights abuse, it is crucial that these assumptions be questioned, both by scholars and practitioners. Taking as a case study Colombia’s decades-long armed conflict, in which one-fourth of combatants are women, this paper addresses the problem of reintegrating female combatants in Colombia’s violent conflict into civil society after they have left armed groups. In doing so, it demonstrates the centrality of exposing these false assumptions regarding the nature of transitional justice in achieving sustainable post-conflict structures, and potentially, in preventing conflict before it begins.

Reflecting on the ways in which transitional justice may fail female combatants, this paper exposes three central concerns as inaccurate reflections of the realities of both men and women affected by conflict. These false dichotomies are (1) between the conflict era and the post conflict era; (2) between public and private space; and (3) between the commonly-employed legal concepts of victim and perpetrator. In order to fully examine the complexities of these dynamics, this article synthesizes contemporary feminist scholarly work on transitional justice with detailed research on gender in Colombia. It first traces the evolution of feminist thinking on transitional justice mechanisms, and then contributes to the existing feminist scholarship on transitional justice by examining the additional complication of women who may have suffered the horrors of conflict, but who have also been perpetrators of some of these horrors. Utilizing detailed research on the experiences of both Colombian women and men, it critiques transitional justice approaches from a gender-oriented perspective, and seeks to imagine what a gender-inclusive strategy might look like in Colombia.

The full article is available for download here.

Ming-Sung Kuo Responds to Comments on His Article by David Gartner & Karl-Heinz Ladeur

by NYU Journal of International Law and Politics

[Ming-Sung Kuo is an Assistant Professor at the University of Warwick Law School.  He is the author of Taming Governance with Legality? Critical Reflections upon Global Administrative Law as Small-c Global Constitutionalism, 44 N.Y.U. J. Int’l L. & Pol. 55 (2011).]

It is a great pleasure and honour to have Professors Karl-Heinz Ladeur and David Gartner as interlocutors in response to my piece to appear in the NYU Journal of International Law & Politics (JILP).  Their critical comments and insightful observations shed illuminating light on important issues my piece aims to address.  Instead of writing a ‘rejoinder’ addressing each single challenging issue raised by Karl-Heinz and David, I am taking this opportunity to highlight our disagreement and the underlying concerns we share about global administrative law (GAL), which will not only enhance the accessibility of my JILP piece but also take the debate on GAL a stage further!

The questions both responses have raised with my piece can be said as resulting from the fact of the fragmentation and pluralisation of this globalising legal landscape.  Situated in this institutional background, both Karl-Heinz and David have asked three important questions centring publicness, legitimacy, and constitution.  Notably, these three notions have seen their enduring influence on the discussion on domestic law.

The first question concerns the idea of publicness in GAL.  To be clear, my characterisation of post-public legitimacy in global administrative law does not imply my agreement to this positioning.  Specifically, my concern is that despite speaking in the name of publicness, global administrative law is moving toward the privatisation of legitimacy as also noted by Karl-Heinz.  This concern arises against the backdrop of the fragmented, postnational legal order.  It is also here where Karl-Heinz and David and I have parted company.

In response to my critique of GAL’s taking existing institutional settings as the sites where publicness is expected to materialise, David points to their advantages in ensuring expanded participation by affected parties as more focused institutional settings and regulatory domains.  It is true that affected parties can easily focus attention on these tangible sites rather than on some elusive transnational or infranational (as Professor Joseph Weiler terms it) civil society.  However, as rightly noted in GAL, types of global administrative law have already extended beyond the formal public (inter)governmental organisations to the so-called standard-setting private bodies.  Then arises the question: while GAL posits that regulatory power-exercising bodies are regarded as the focused sites of participation by affected parties, the very private form of some power-exercising bodies in regard to global administration may hamper affected parties from participating in their related practices.  For example, it is hard to know when standards or practices resulting from private bodies will be included in the body of GAL.  Private standards are not created at the moment when public (inter)governmental organisations reach out to private bodies for some particular regulatory purpose.  Rather, they materialise through a long process of trial and error involving the members or stakeholders of private bodies and only when they are regarded as mature will public (inter)governmental organisations incorporate them into the formal regulatory framework.  In other words, it will be too late for affected parties to participate in their formation if we follow GAL’s criteria of deciding the sites of publicness by reference of existing regulatory power-exercising bodies.

“Constitutionalizing” Global Administrative Law or Experimenting With a Hybrid Transnational Legal Order? (a Response by Karl-Heinz Ladeur)

by NYU Journal of International Law and Politics

[Karl-Heinz Ladeur is a Professor Emeritus at the University of Hamburg.]

1. Ming-Sung Kuo’s article proffers several hypotheses. One is that global administrative law can be regarded as an element of a “small c-constitutionalism” – as opposed to “large C-Constitutionalism” in a more fundamental approach to a transformation of international law into a new type of “global law beyond the state” (G. Teubner). The concept of “constitutionalism” has different meanings – this is a problem which might hinder a productive discussion. On the one hand it is focused on a kind of self-reflection which refers to “secondary norms” of procedure, competence, systematic differentiation, validity etc. (in the sense of H. L. A. Hart). These “secondary norms” process a “control project” for “primary norms” which then reshapes social norms as legal ones. On the other hand we have a strong version of “constitutionalization” which can be regarded – with a certain simplification – as a transfer of state-related conceptions of a hierarchy of norms (with the constitution at the top) to the international domain. The role of constitutionalization is seen as a frame of reference for the closer integration of international law which is meant to supplement the weakening function of the state in the globalization process.

These are but the general foci of different versions of “constitutionalism”. Even if one leaves aside the descriptive approaches to the constitution of political sciences there is a “political constitutionalism” within the legal system which is no less normative than the “legal constitutionalism”. Both refer to some basic legal structure that has a fundamental role for the processing of the law in a modern state: the former version epitomizes the roles of parliament, public opinion, government as institutional devices for the preservation of not only democracy but also civil rights, whereas the latter tends to regard “constitutionalism” to be incomplete once it no longer includes judicial protection of civil rights even from infringements by parliamentary statutes.

Adopting legal conceptions that have been developed in the history of the western state in the domain of global law should not be regarded as impossible, however, it is, as Benedict Kingsbury rightly puts it, “challenging”.  This is all the more so as “global administrative law” might rather be regarded as a kind of “ersatz” for the missing foundations of the new arenas of the globalization of law and public governance. There is neither a clear distinction between legislative and administrative functions, not to mention the negligible role of courts in the transnational domains of decision-making. There is no clear separation of constitutional and administrative questions either. There is not even a settled core of legal principles that might give orientation to the evolution of global law. This weakness of global administrative law should not be played down by a reference to a vague conception of  “small c-constitutionalism” which might sound like a contradiction in adiecto because any constitutionalism is focused on basic issues of a polity. In some countries such as Germany a tendency toward a comprehensive “constitutionalization of the legal order” as a whole is gaining momentum in the practice of the Federal Constitutional Court, but this is a top-down approach within an idea of a “legal constitutionalism” which presupposes a high degree of legal and political homogeneity.

Global Administrative Law & The Challenge of Legitimacy: a Response by David Gartner

by NYU Journal of International Law and Politics

[David Gartner is an Associate Professor of Law at the Sandra Day O’Connor College of Law, Arizona State University.]

Thanks for the opportunity to offers some thoughts on Ming-Sung Kuo’s provocative and interesting article entitled Taming Governance with Legality: Critical Reflections Upon Global Administrative Law as Small-c Global Constitutionalism, which highlights some of the key tensions within the project of Global Administrative Law (GAL). The core underlying concern that the article raises about whether Global Administrative Law adequately addresses the challenge of fostering legitimate and meaningful participation within global governance is a critical question and hopefully it will spur much wider debate on that issue. The article raises valuable questions about the limits of expertise in overcoming the challenge of legitimacy but also understates the potential significance of deliberation in fostering more accountable governance. Ultimately, the project of Global Administrative Law holds more promise than the article suggests precisely because its real ambitions are more modest than Ming-Sung interprets them to be.

The article proceeds in three steps, each of which seems essential to reaching Ming-Sung’s ultimate conclusion. The first step is the claim that Global Administrative Law has emerged as a kind of “small c” constitutional law of global governance. The second step is that the legitimacy of Global Administrative Law rests on a conception of publicness which seeks to connect democracy and the rule of law without relying on a “capital C” Constitution. The third step in the argument is the claim that the concept of publicness articulated within Global Administrative Law is fragmented because of its focus on particular regulatory regimes and that it ultimately offers a post-public notion of legitimacy.
Taking up the first step in this argument, the core question is whether Global Administrative Law really does evolve into “small-c” constitutionalism. Nearly all Global Administrative scholars frame their ambitions more modestly with a focus on making existing international institutions more accountable rather than seeking to design a constitutional order. The article suggests that the project nonetheless takes on a constitutional character as its underlying normative principles gain currency but this begs the question as to whether any norms of accountability could be similarly characterized as constitutional norms. Nonetheless, Ming-Sung is right to question whether the boundaries between merely administrative procedures and more robust conceptions of governance can so easily be defined and this is an issue that deserves further exploration.

The next major claim made by Ming-Sung is that the conception of publicness developed by Global Administrative Law is really a privatization of legitimacy. Although the article rightly highlights some of the limits of expertise in furthering democratic aims, it seems to reach too far in suggesting that deliberative conceptions of democracy can so easily disintegrate into outsourcing by another name. GAL values expertise not because it is less prejudiced than parliamentary debate, as the article suggests, but rather because it can in the right context foster meaningful deliberation and require public justification of the reasoning behind decision-making in ways that could lead to more broadly acceptable decisions. While I am quite sympathetic with Ming-Sung’s concern that reasoned decisions and transparency are not enough to overcome the democratic deficit in global governance, I am less persuaded that deliberation can play little meaningful role in responding to this challenge.

The last major step in Ming-Sung’s argument is that Global Administrative Law offers a post-public conception of legitimacy. The basic idea outlined in the article is that GAL abandons a principal-agent model of accountability and instead relies upon individual regulatory publics within a given regulatory field which actually constitute private clubs with privileged players. There is clearly a serious risk of regulatory capture and also of the exclusion of affected but less well-organized actors within many of the institutions highlighted by GAL scholars. Yet it is also the case that more focused institutional settings and regulatory domains can make expanded participation by affected parties more plausible in a global context. It is much easier to ensure participation by those most affected by the building of a particular dam or in a particular field of global health than it would otherwise be to constitute participation at a global scale. The significance of transparency is that it enables the workings of a given institution to be subject to significantly wider public scrutiny rather than limit its oversight to a privileged few. Requiring institutions to publicly disclose and defend their reasoning for major decisions also potentially supports broader public accountability. At the same time, expertise and transparency are not adequate substitutes for meaningful participation and new models of participation are required to respond to the democratic deficit that the article highlights.

Some international institutions are now experimenting with many of the core tools of Global Administrative Law and a new generation of institutions is increasingly seeking to build on the more participatory impulses which underly Ming-Sung’s central concerns in this article. The project of GAL is responding to the challenge of fostering greater accountability within an institutional universe that we inherited from the 20th century. As I have suggested elsewhere, enhancing participation by civil society actors holds enormous promise in opening up opportunities for richer deliberation than remains the case when states are the exclusive participants in the governance of international institutions. (Beyond the Monopoly of States) In order to mitigate the risks of capture that the article rightly highlights, constituency models within the governance of these institutions are important and can strengthen the likelihood of meaningful deliberation. When organizational actors are accountable to diverse counterparts, they must themselves engage in the type of public reasoning which GAL scholars hope will increasingly come to characterize international institutions more generally.

Overall, Ming-Sung’s article is a valuable contribution to an important ongoing debate not just about how we define the boundaries of Global Administrative Law but also about how we broaden our conceptual frames to respond to the challenge of legitimacy in global governance. Expanding meaningful participation in the governance of international institutions is one of the biggest challenges to fostering more legitimate and accountable governance in the 21st century. Hopefully this article will not only lead scholars to take more seriously the risks of capture and the limits of expertise within existing models but also to join Ming-Sung in examining the complex relationship between different theoretical approaches to understanding how law fits into a global architecture that remains very much a work in progress.

Taming Governance with Legality? Critical Reflections upon Global Administrative Law as Small-c Global Constitutionalism

by NYU Journal of International Law and Politics

[Ming-Sung Kuo is an Assistant Professor at the University of Warwick Law School.]

The project of global administrative law has stood out from the various efforts to tame global governance with the rule of law. By enhancing transparency and accountability, global administrative law is expected to improve the policy output of global administration, giving legitimacy to global governance. In this way, global administrative law evolves into a small-c global constitutionalism. In this paper, I trace the trajectory of global administrative law as small-c global constitutionalism and how the concept of legitimacy is recast in relation to global governance. I first point out that originally embedded in the practice of global governance, global administrative law effectively functions as the small-c constitutional law of global governance, echoing the trends toward constitutionalization. As it takes on constitutional character, however, global administrative law faces the challenges of legality and legitimacy. Turning away from state consent, global administrative law turns to the idea of publicness as the solution to its double challenges. My inspection of the notion of publicness in global administrative law shows that the strategy of resting the legitimacy of global administrative law as small-c global constitutionalism on the idea of publicness turns out to be the privatization of legitimacy, suggesting a post-public concept of legitimacy.

The full article is available for download here.

Co-authors Respond to Comments by Marko Milanovic and Chiara Giorgetti

by NYU Journal of International Law and Politics

[Lea Brilmayer is the Howard M. Holtzmann Professor of International Law at Yale Law School. Isaias Yemane Tesfalidet (LL.M. ’10, J.S.D. Candidate, Yale Law School) is a fellow with the Forum for International Criminal and Humanitarian Law. They are the authors of “Third State Obligations and the Enforcement of International Law“, 44 N.Y.U. J. Int’l L. & Pol. 1 (2011).]

We would like to start by thanking the NYU Journal of International Law and Politics and Opinio Juris for arranging this opportunity to discuss our article. We would also like to thank Marko Milanovic and Chiara Giorgetti for providing their reactions.

Our proposed model of third State obligations in enforcing international law rests on the premise that if “first party States” are obligated to observe international law, why shouldn’t third States be obligated, also. As we note in our article, “third State obligations … are a function of the type of involvement that the third State has with the dispute in question.” In other words, as Professor Milanovic correctly recognizes, we argue that:

The third State obligations with which we are concerned prohibit one State from contributing to another State’s violation. A State may take the side of the innocent party, or may remain completely on the sidelines, but is not entitled to facilitate, support, or encourage the violation of international law. Third State obligations require that if a State does get involved, it should be on the side of the victim.” (Section III).

Admittedly, our proposal has serious and far-reaching implications for international law and international relations. As Milanovic points out, our proposal would impose no less burden than the State bystander model in that “… all states would still in principle be policing every other state in the relationships with third parties ….” However, we do not require third States to undertake additional efforts to “collect a new body of evidence” because they should already have been in possession of the relevant information when they decided to get involved in the first place. Third States would make the decision when they routinely formulate their foreign policy.

We share the concern with the practicability of third State obligations but we think that part of the concern and reluctance to recognize third State obligations emanates from “a mistaken idea of what they would have to look like ….” We also address the ambivalence of Article 16 of the ILC Articles on State Responsibility and think that this ambivalence is in part attributable to “… the long shadow cast by the universal extension of affirmative responsibilities, with its extreme impracticability.”

Professor Giorgetti raises two important questions. First, is “a specific finding of a violation of international law […] required to trigger a third State’s obligation?” We think that a finding of violation of international law by an independent body (for example, an international fact finding commission or arbitral tribunal) is not necessarily required. Slightly different sets of issues are raised where there is a prior finding of violation. In fact, whether third States should assist in the enforcement of judgments and awards of properly constituted international tribunals is the subject of Tesfalidet’s doctoral dissertation. The second question that Giorgetti poses is “what amounts to a violation and what is just in international relations”?

At the risk of attributing to Giorgetti what may not be her position, the question reveals the desire to keep international law separate from international politics. As we note in our article, the victim of a violation of international law and the third State are speaking different languages – the former, the language of law and the latter the language of power politics. Our third State model in part seeks to bring this into the open. Importantly, this question also touches on how far can or should international law restrict the range of choices that States have in their international relations. While we think that our proposed model does not unduly restrict third States lawful choices, that, obviously, is too extended a topic to deal with in this response.

A Response to Lea Brilmayer & Isaias Yemane Tesfalidet by Marko Milanovic

by NYU Journal of International Law and Politics

[Marko Milanovic is a Lecturer in Law at the University of Nottingham School of Law.]

In their timely article Brilmayer and Tesfalidet address an important issue of general international law – when should states bear obligations to either put an end to or not contribute to violations of international law by other states, even when the obligation in question is not owed to them specifically. They challenge the orthodox view that by and large it is not any one state’s business whether third states comply with their obligations towards others, so long as the obligation concerned is not erga omnes in character. They similarly challenge the state bystander responsibility model offered by Monica Hakimi in an article published last year in the EJIL. They offer instead a third state obligation model, under which states would be under a general obligation not to contribute to another state’s violation of international law. This model can, in their view, contribute greatly to an atmosphere of obedience to international law, and to the greater coherence of international law as a legal system. In effect, it could serve as a substitute for the (general) lack of an institutional mechanism of law enforcement by the international community.

Having read this very interesting paper, I must confess to some doubts as to the cogency of its main argument. First, it is at times unclear – or at least it was not clear to me – what the argument actually is. This lack of clarity affects both the paper’s claims with regard to the law as its stands and as to relevant policy considerations. Second, I am not convinced that the paper’s portrayal of its approach’s appeal as compared to its competitors is persuasive.

To start with my second doubt, the paper does strongly argue that it would be quite impracticable to impose Hakimi’s state bystander model to all international obligations. In other words, it would not only be unsupported by current practice but also be unwise as a matter of policy to say that all states have the positive obligation to take all reasonable measures to put an end to all violations of international law by third states, regardless of the substance or character of the obligation in question. Even the far more limited obligation for states to cooperate to put an end to breaches of jus cogens in Art. 41 of the ILC Articles on State Responsibility was subject to much debate. As Brilmayer and Tesfalidet persuasively argue, it would be unrealistic, to say the least, to apply a version of that obligation to all breaches of international law, i.e. to expect of states to actively police the compliance by all other states with the totality of international law.

I am not sure, however, that even Monica would argue differently – but I would of course leave this to her. I am also not sure that Brilmayer’s and Tesfalidet’s proposed solution is any more realistic. As I read it, they would create a negative obligation of states not to contribute to violations of international law by third states, much akin to the complicity provision in Art. 16 ILC ASR. So far so good. What they would in fact do, however, goes beyond Art. 16. In effect, they would dispense with the Art. 16(b) requirement that prohibits complicity only when the ‘accessory’ state and the ‘principal’ state are bound by the same obligation. But not only is this proposal not necessarily any less utopian than the one requiring positive action – all states would still in principle be policing every other state in the relationships with third parties – but the exact specifics of this proposal remain unclear. For instance, Brilmayer and Tesfalidet try to reduce the scope this broad prohibition on complicity by limiting it to states that are somehow ‘involved’ in the dispute, but the whole point of complicity obligations is precisely to prohibit some level of involvement. In other words, the conduct being prohibited cannot serve as a threshold for the application of the prohibition itself. The argument would, in my view, have been conceptually clearer had it taken Art. 16 ASR as a baseline and provided a more substantial critique of some of its features or requirements. Similarly, most examples of third state obligations that they offer arise in contexts such as human rights or self-determination which may already be covered by primary positive obligations to prevent certain acts, or negative obligations to refrain from certain acts or not recognize their validity. That makes the comparative advantages of their proposal harder to weigh against existing international law – I would hence have liked to see their model applied to a number of real world examples that they felt were inadequately dealt with under existing law. That said, while I may not agree with every claim in the paper, I certainly enjoyed reading it.

Third State Obligations: An Essential Discussion for International Law, a Response to Brilmayer & Tesfalidet by Chiara Giorgetti

by NYU Journal of International Law and Politics

[Chiara Giorgetti is an Adjunct Professor at Georgetown Law Center and a member of the International Arbitration Group at the Washington, D.C. office of White & Case.]

I am very pleased to join this discussion on Professor Lea Brilmayer and Isaias Yemane Tesfalidet’s upcoming article on third State obligations and the enforcement of international law.

In their article, Brilmayer and Tesfalidet argue that States have a positive obligation not to contribute to another State’s violation of a victim’s legal rights, and propose that liability is triggered only when a third State is already somehow involved in the dispute by supporting the violator rather than assisting the victim. In essence, in their proposal they suggest that third States do not frustrate international law and worsen an already alive – but legally clear – dispute.

The proposition that third States should not interfere with another State’s violation of a party’s established legal rights is intuitively correct and appealing.

It is quite surprising that international law has not produced more legal scholarship on the subject. The new article by Brilmayer and Tesfalidet fills this vacuum in a satisfying and well-reasoned manner. This is indeed a discussion that must be had.

When third States interfere in an international law conflict taking the side of the violator, they are undermining international peace and international comity, and in fact international law (see, for example, how art. 2(5) of the UN Charter requests Members to “refrain from giving assistance to any State against which the United Nations is taking preventive or enforcement action”).

Interestingly, when Tribunals consider requests for provisional measures they also often recommend that parties refrain from aggravating the disputes. An argument could be made that third State should be equally required to refrain from aggravating an international dispute.

Importantly, the authors assert that “the legal basis for imposing third State liability is that the third State is involved in the violation of the same substantive law as the primary violator.” Thus, the obligation to refrain from supporting an international law violator is a legal obligation and is grounded in international law.

I think that further support for this theory can also be given by general principles of international law, and especially those principles that require States to cooperate with one another.

An interesting question is whether a specific finding of a violation of international law is required to trigger a third State’s obligation, and what specifically would amount to a violation and what should be considered the normal performance of international relations.

Third State Obligations and the Enforcement of International Law

by NYU Journal of International Law and Politics

[Lea Brilmayer is the Howard M. Holtzmann Professor of International Law at Yale Law School. Isaias Yemane Tesfalidet (LL.M. ’10, J.S.D. Candidate, Yale Law School) is a fellow with the Forum for International Criminal and Humanitarian Law.]

International legal theorists have always had substantial interest in what can be called the “first party” question — whether States are themselves obliged to obey international law. But discussion of non-party responsibilities — what we analyze here as “third State” obligations — is very limited. There are a small number of exceptional situations (mostly involving human rights norms characterized as jus cogens or erga omnes) where non-parties are already recognized as having affirmative legal obligations to become involved; but there are no general legal duties that apply across the board. This state of affairs presents something of a puzzle: If we assume that the parties to a conflict are bound by the international legal norms that govern the dispute, then why aren’t third States? And how is international law to be enforced if other states undercut it by making their indecisions according to political expediency?

Our position is that international law does have something important to say about third State obligations. Non-parties, in our view, are under a legal obligation not to contribute to another State’s violation of international law. This obligation is satisfied if either the third State has no involvement at all in the dispute or it is involved on the side of the victim. This approach is quite different from the closest existing analog – what we call the “State bystander” model – which is limited to specific issue areas such as human rights and which rests on debatable premises concerning affirmative obligations. If third State obligations are accepted as a general matter, the result will be a tremendous expansion of international duties, but all in the service of international law.

The full article is available for download here.