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.