Finnish Yearbook of International Law: Volume XV, 2004 (Finnish Yearbook of International Law) (v. 15)

FINNISH YEARBOOK OF INTERNATIONAL LAW

FINNISH YEARBOOK OF INTERNATIONAL LAW Volume XV, 2004

Ius Gentium Association

MARTINUS NIJHOFF PUBLISHERS LEIDEN/BOSTON

A C.I.P. Catalogue record for this book is available from the Library of Congress. ISSN 0786-6453 ISBN 9004-15506-6 ______________________________________________________________________________ Published by Brill Academic Publishers, P.O. Box 9000, 2300 PA Leiden, The Netherlands. [email protected], http://www.brill.nl Sold and distributed by Turpin Distribution Services Limited, Blackhorse Road, Letchworth, Herts SG6 1HN, United Kingdom

Cited as: FYBIL

The Ius Gentium Association gratefully acknowledges that the publication of the Finnish Yearbook of International Law is made possible with the support of the Academy of Finland and the Legal Department of the Finnish Ministry for Foreign Affairs.

Printed on acid-free paper All Rights Reserved © 2006 Koninklijke Brill NV, Leiden, The Netherlands Koninklijke Brill NV incorporates the imprint Martinus Nijhoff Publishers No part of the material protected by this copyright notice may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without written permission from the copyright owner. Printed in the Netherlands

Finnish Yearbook of International Law Editor-in-Chief Jan Klabbers Executive Editor Taina Tuori Guest Editor Miia Halme Editors Viljam Engström Petra Hagelstam Katja Keinänen Kati Kulovesi Päivi Leino Samuli Seppänen Associate Editors Tobias Bräutigam Jutta Gras Erkki Holmila Anna Huilaja Timo Kallinen

Virpi Koivu Yrsa Korkman Riikka Koskenmäki Taru Kuosmanen Rain Liivoja Pekka Niemelä

Ilona Nieminen Katja Nieminen Juha Rainne Rouzy Vafaie Varro Vooglaid

We welcome unsolicited contributions related to international law. All manuscripts and editorial correspondence should be addressed to: Executive Editor Finnish Yearbook of International Law Faculty of Law P.O. Box 4 (Yliopistonkatu 3) FIN-00014 University of Helsinki, Finland e-mail: [email protected] You’ll find general information for authors and a detailed guide to our house style at the end of this book. – We look forward to hearing from you.

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Editorial Advisory Board Chair Jarna Petman Ruth Donner Kari Hakapää Lauri Hannikainen Päivi Kaukoranta Esko Kiuru

Outi Korhonen Erkki Kourula Pirkko Kourula Raimo Lahti Marja Lehto

Ari-Matti Nuutila Esa Paasivirta Allan Rosas Martin Scheinin Markku Suksi

International Advisory Board Chair Bengt Broms Daniel Bardonnet Ove Bring James Crawford Vladimir Djuro Degan

Christian Dominicé Sir Robert Jennings Vladimír Kopal Shabtai Rosenne Bruno Simma

Sir Ian Sinclair Antti Suviranta Hugh W.A. Thirlway Holger Rotkirch

Honorary Board Chair Kari T. Takamaa Veijo Heiskanen Sirkku Hirvonen

Juhani Kortteinen Tuomas Kuokkanen Juhani Parkkari

Ritva Saario Matti Tupamäki

Contents Symposium (edited by Miia Halme) Symposium on Law and Anthropology – An Interrelationship of Fantasies and Utopias Martti Koskenniemi: Introduction Annelise Riles: Anthropology, Human Rights and Legal Knowledge: Culture in the Iron Cage Reetta Toivanen: Human Rights: A Stumbling Block for the Anthropologist or How Should We Deal with Culture? Timo Kallinen: ‘My Solemn Responsibilities to My People’: Traditional Rulers and Post-Colonial State in Ghana Samuli Seppänen: Narcissistic Law: Legal Fictions and the Law of the People’s Republic of China Baûak ÇalÖ: Bargaining Transnationalism: The European Court of Human Rights Peter Fitzpatrick: ‘We Know What It Is When You Do Not Ask Us’: The Unchallengeable Nation Amy Levine: Risking Ethics

3 5 9

39

61 83 111 129 149

Articles Meltem Aslan: Secure State, Insecure People: Turkey’s Freedom of Expression Problem Veijo Heiskanen: Death of the Layman: The Legacy of Deconstruction and the Philosophy of International Law Stiina Löytömäki: Law and the Global Phenomenon of Righting Old Wrongs Katja Nieminen: The Rules of Attribution and the Private Military Contractors at Abu Ghraib: Private Acts or Public Wrongs?

177

233 273

289

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Stephan Wittich: Non-Material Damage and Monetary Reparation in International Law

321

Book Reviews & Review Articles Gerry Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (Gerrit W. Gong) Ole Spiermann, International Legal Argument in the Permanent International Court of Justice: The Rise of the International Judiciary (Jan Klabbers) Rüdiger Wolfrum and Nele Matz, Conflicts in International Environmental Law (Timo Koivurova) David Kennedy, The Dark Sides of Virtue. Reassessing International Humanitarianism (Päivi Leino) Anne-Marie Slaughter, A New World Order , Alex Callinicos, The New Mandarins of American Power. The Bush Administration’s Plans for the World, John Murphy, The United States and the Rule of Law in International Affairs, Christopher Meyer, D.C. Confidential (Gerry Simpson)

371 373 381 384 395

New Finnish Doctoral Dissertations in International Law James Summers (lectio praecursoria, 11 December 2004): The Idea of the People: The Right of Self-Determination, Nationalism and the Legitimacy of International Law Review by Karen Knop Päivi Leino (lectio praecursoria, 23 April 2005):

Particularity as Universality. The Politics of Human Rights in the European Union Review by Marise Cremona

404 410 418 424

Recent Developments and State Practice Juha Rainne:

Elements of Finnish Practice 2003 and 2004 General Information for Authors Ius Gentium Association

435 453 465

Symposium Law and Anthropology

Symposium on Law and Anthropology - An Interrelationship of Fantasies and Utopias On the behalf of the editing team, we are pleased to offer you this volume of the Finnish Yearbook, starting with a Symposium on Law and Anthropology. Some readers may wonder why the Finnish Yearbook, at this point in time, has chosen to publish a Symposium around the – for international lawyers – rather esoteric relationship between law and anthropology; what relevance does it offer for scholars and practitioners not intimately interested in the combination of the two disciplines? The present volume suggests that, in fact, this relationship is anything but marginal, and instead holds the potential to offer great insights also for a wider audience. This suggestion relates in particular to the various implicit assumptions embedded in legal writings both on the domestic and international levels. Of these, a graspable example is offered by assumptions made on human nature: is man considered, in the Hobbesian tradition, as fundamentally egoistic and all human interaction tainted by fierce competition and potential hostility, or in the Rousseaun tradition altruistic, making it natural for man to wish to live with others in piece and harmony? In the present volume such questions are addressed both by anthropologically oriented lawyers and legally oriented anthropologists who take turns in elaborating the implicit assumptions the others hold. However, the contributions give rise to the question: are the assumptions such that the others would also recognize them, or the product of their own fantasies of what the others are like? While gathering the present contributions, the theme of fantasies and utopias arose to centre stage and is in some form present in all the contributions. Fantasies and utopias have two sides: on the one hand they may enforce negative stereotypes, on the other hand, glorify and elevate the unknown unwarrantedly. Thus the articulation of existing utopias appears a cardinal step in the way toward genuinely new inter-disciplinary ventures – the buzzword of the day – and possibly also new innovation. This volume wishes to contribute to the project in which lawyers and

Finnish Yearbook of International Law (Vol. XV, 2004) 4 __________________________________________________________________ anthropologists could obtain a more sober and intimate knowledge of who the others really are. It also makes a contribution to the emerging inter-disciplinary collaboration at the University of Helsinki, receiving its most concrete embodiment in the Academy of Finland ‘Centre of Excellence in Global Governance Research’, a venture bringing together scholars of international law, international relations and anthropology for the years 2006-2011.

Introduction Martti Koskenniemi*

A recent work on the ‘anthropological function’ of law stressed the exceptional role played by law in Western thought about the relationship between the individual and community and the degree to which it appears incompatible with non-Western modes of thought and social organisation.1 For an international lawyer, like the present, the suggestion that the idea of universal law is in fact another irredeemably hegemonic effort of extending the dominance of occidental culture over others is of course disconcerting. What Weber would have termed the ‘calling’ of an international lawyer involves undoubtedly a moral and political commitment to strengthening the role of international law everywhere. So, does this mean that international and human rights lawyers are by formation the last brand of official apologists of Western empire? Yet the book was also able to suggest in a subtle way that although the globalisation of Western law was part of a history of the expansion of the West, it was also – at least in its peculiarly French, étatist form – a valuable, even progressive aspect of social transformation. In the end, despite its frequent references to Chinese, Japanese and Islamic attitudes to law, the book appeared to turn on an internal debate in the West about the virtues of individualism versus solidarity, the market versus public power, law and economics versus law as dogmatics, common law versus codification. The reader left the book with the impression that if law constituted a Western-type of intervention in the world, so did anthropology, and that the political ambitions, doubts and conflicts that riddled international law and human rights were no less prevalent in specialist discourse about the study of culture. It is perhaps no surprise that the essays in this volume of the Finnish Yearbook of International Law all take for granted that the home of law as ‘we’ know it is the cultural and political West and in various ways seek to come to grips with the fact that it nonetheless makes claims that seek independence from that * 1

Professor of International Law, University of Helsinki. Alain Supiot, Homo juridicus. Essai sur la fonction anthropologique du Droit (Seuil: Paris, 2005).

Finnish Yearbook of International Law (Vol. XV, 2004) 6 __________________________________________________________________ background. The essays by Reetta Toivanen and Timo Kallinen do this quite expressly by contrasting the ‘universality’ of human rights and the political form of Western statehood with claims of cultural particularity in general and indigenous forms of rule in Africa in particular. But if law is culture, so is anthropology. Reading these essays one soon begins to feel that they are also part of the same culture. This seems suggested by the fact that in both fields of enquiry the naïveté of the idea of a universal human nature grounding something like universal human rights meets with the equal naïveté of the view that ‘everything’ can only be culturally understood and assessed. Yet one should not be too embarrassed about the constant reappearance of this opposition in countless internationalist debates. That anthropologists search for a (necessarily unstable) middle-ground between what Toivanen calls ‘naturalist fallacy’ and ‘culturalist fallacy’ is a very familiar predicament for international and human rights lawyers whose disciplinary grammar has been provided by the unending search of a reconciliation between what I have elsewhere called ‘utopia’ and ‘apology’.2 The twin poles do not denote claims that could be verified or falsified but set the problematique of international law and anthropology without which we could not recognise those two forms of knowledgeproduction as what they are. These tensions constitute a condition of possibility for the existence of something like ‘international law’ or ‘anthropology’ and the corresponding forms of professional expertise. This, I suppose, is why the law students whose circle is given an ethnographic description in Amy Levine’s contribution react in such apparently predictable but nonetheless opposing ways to the presence of an anthropologist in their midst. To characterise the difference between anthropology and law in the stereotypical way as that between an ethics of self-reflection and ethics of ‘separateness from self’ is both true and false. Even as the professional ideology endlessly repeats such an opposition, it is part of the training of the professional to become profoundly suspicious of it. Again, there is no firm opposition but an uneasy oscillation between the two positions and it seems quite obvious that in managing the tension lawyers and anthropologists might sometimes find themselves very close to each other. The essays by Basak Cali and Samuli Seppänen survey two legal fields in which these tensions are being managed by different but familiar techniques. In Cali’s paper, the notion of ‘transnational’ emerges as a fluid and unstable field within which the European Court of Human Rights constructs its practice. Within such an ‘intermediate’ area, it is able to manage the relationship between States and individuals without having to assert the full autonomy of a professional field nor succumbing to full instrumentalisation in the service of external (national, 2 Martti Koskenniemi, From Apology to Utopia. the Structure of International Legal Argument. Reissue with a New Epilogue (Cambridge University Press, forthcoming 2006).

Introduction 7 __________________________________________________________________ internationalist) causes. Seppänen, for his part, examines the way Western lawyers have analysed the Chinese legal system as a ‘Narcissus’ pool’ – a way to make (highly ideological) claims about the West. Yet, in order to do this, the Western ‘realists’ celebrate the ‘fictions’ of rationality, determinacy and objectivity that those same observers can deconstruct in five seconds as they turn their gaze to their domestic society. ***** One way in which the parallels in the study of law and anthropology appear, it has been recently suggested, is through the way both have to do with examining the way aspects of social life (both persons and things) are ‘fabricated’ through legal and cultural practices and discourses.3 Law creates legal ‘fictions’ that are then taken as objective, fact-like aspects of lived experience. ‘Ownership’ is one such aspect, ‘sovereignty’ and ‘right’ likewise. Such institutional facts can only be comprehended by reference to their system-related, constructive character. The best of legal study – Hans Kelsen’s positivism, for example, or applications of Luhmannian systems theory – has taken this aspect of the law for granted. Its importance law lies in particular in what it suggests by way of methodological alternatives. Most of the essays here take it as self-evident that law is, as Annelise Riles stresses, an instrumentalist discipline. As she then adds, this is precisely what critical lawyers have, for academic and political reasons, always found so problematic (but to which they have over again themselves come to contribute). I was interested to read that this was also the predominant optic from which most anthropologists have viewed law, and a practice into which they, too, occasionally succumbed. It is quite true that when critical lawyers and human rights activists embrace anthropology’s ‘cultural’ orientation, they have done this in order to find a refuge from mainstream legal instrumentalism. It is truly refreshing to feel that one does not need to end one’s reflections always in a policy proposal. Here the clarion may sound for a return to ‘formalism’ – a formalism having learned its lessons from decades of vain efforts to ground social sciences in a ‘realist’ notion of the ‘social’. The usual retort by mainstream lawyers about the ‘shallowness’ of formalism as an alternative to means-ends studies must today be seen as a predominantly conservative and ideological move. Viewing law’s form as constructive in its own right may not be sufficient but is certainly necessary for the development of a self-reflective and critical legal scholarship today. However paradoxical this may seem, anthropology’s gift to lawyers may consist of a revaluation of formalism. Perhaps lawyers can pay 3 Alain Potage and Martha Mundy (eds.), Law, Anthropology, and the Constitution of the Social. Making Persons and Things (Cambridge University Press, 2004).

Finnish Yearbook of International Law (Vol. XV, 2004) 8 __________________________________________________________________ this back by providing illustrations of the power of formalism as cultural analysis. This might perhaps be one way to think about the ‘circling back’ which Riles reflects upon. To return and to be taken seriously as a member of the legal tribe once one has received the alien knowledge of anthropology is surely easier if the travel brought no ‘alien’ knowledge at all, but a better appreciation of what was the key to one’s own speciality. I am optimistic. In the 1980’s everybody spoke the language of interdisciplinarity as part of the hegemonic manoeuvring in one’s academic environment. Yet, apart from a few friendships, not much followed from those exhortations. The succeeding years have blurred the boundaries of academic disciplines while proliferating Foucauldian commentary has highlighted the paradoxes and limits of ‘disciplinary’ thinking in the first place. So the new age is for ‘counter-disciplinary’ projects in which no identity is taken for granted, and in which no instrumentalism can remain quite assured what it is an instrument for. In such conditions, the fact that it may become impossible to distinguish the ‘lawyer’ from the ‘anthropologist’ not only opens more interesting professional careers but may also provide a possibility for novel and more self-reflective ways of managing the tensions of which those careers consist.

Anthropology, Human Rights and Legal Knowledge: Culture in the Iron Cage Annelise Riles*

In a recent article about anthropological debates about human rights and cultural relativism published in Human Rights Quarterly, the critical legal scholar and human rights specialist Karen Engle argues that anthropological debates about cultural relativism hide a more fundamental shift.1 What has changed from the American Anthropological Association’s (AAA) 1947 statement on human rights 2 to its 1999 revision,3 and what is salient about ubiquitous assertions by anthropologists that the discipline has changed its position on cultural relativism, Engle argues, is not anthropologists’ view of culture but of law. Where in 1947 Melville Herskovitz and his colleagues were highly ambivalent about law and about the human rights regime, now anthropologists ‘have embraced human rights rhetoric’.4 Engle’s argument prompted an article-length response from the anthropologist of law and human rights institutions Sally Merry.5 Merry argues that Engle and * Departments of Anthropology and Law, Cornell University, Ithaca, NY 14853-4901. I warmly thank Naoki Kasuga, Hirokazu Miyazaki, Peter Redfield, and AnnJanette Rosga for a conversation that was a turning point; Tony Crook, Karen Engle, Miia Halme, Iris Jean-Klein, Martti Koskenniemi, Susan Marks, Hiro Miyazaki, Kunal Parker, Peter Redfield, Adam Reed, AnnJanette Rosga, Marilyn Strathern, and four anonymous AA reviewers for their helpful comments on an earlier draft; and Tatiana Thieme for research assistance. This article was written at Girton College, Cambridge, where I served as a visiting fellow for the Easter Term, 2005, and I thank the Mistress and the Fellows for their hospitality. This article has been previously published in 108 American Anthropologist (March 2006). 1 Karen Engle, ‘From Skepticism to Embrace: Human Rights and the American Anthropological Association from 1947–1999’, 23 Human Rights Quarterly (2001) 536-59. 2 American Anthropological Association, ‘Statement on Human Rights Submitted to the Commission on Human Rights, United Nations’, 49(4) American Anthropologist (1947) 1-4. 3 American Anthropological Association, ‘Proposed Declaration on Anthropology and Human Rights’ (1999) Electronic document, <www.aaanet.org/stmts/humanrts.htm>, accessed April 26, 2005. 4 Engle, ‘From Skepticism to Embrace’, supra note 1, at 537. 5 Sally Engle Merry, ‘Human Rights Law and the Demonization of Culture (and Anthropology along the Way)’, 26(1) Political and Legal Anthropology Review (2003) 55-76. This article was published in the Political and Legal Anthropology Review under my editorship, although I did not play a role in shaping the argument.

Finnish Yearbook of International Law (Vol. XV, 2004) 10 __________________________________________________________________ other critical lawyers fundamentally misunderstand what anthropologists mean by culture and, hence, by cultural relativism. Lawyers fail to see that anthropologists have moved beyond a static and bounded conception of culture as ‘values’ to a much more dynamic, hybridic, fluid culture concept.6 From this point of view, culture need not be the enemy of human rights, Merry argues. Merry’s argument taps into a broader concern often heard within the discipline of anthropology that anthropological concepts are misunderstood and misappropriated by the human rights regime, and hence that anthropology and anthropologists are too often unduly ignored in processes that could benefit from anthropological expertise. On the surface, at least, Merry’s critique seems somewhat out of step with the thrust of Engle’s argument. Engle makes clear that most anthropologists understand ‘that cultures are not static and monolithic’,7 and she emphasizes that she shares anthropologists’ antiessentialist view of culture. In fact, she takes particular anthropologists to task for momentary lapses into essentialism: ‘By lumping together “gender, class and ethnicity,” or “women, ‘minorities’ and indigenous peoples,” [anthropologists Terence Turner and Carol Nagengast] fail to recognize the potential conflicts among these groups’.8 She also critiques the 1999 AAA declaration for failing to be explicit enough about the fluid and antiessential nature of culture: ‘While the Declaration specifically states that “human rights is not a static concept,” it does not say the same about culture’.9 Engle also does not claim that anthropologists are complete relativists. She argues rather that contemporary anthropologists unfairly accuse midcentury anthropology of relativism when in fact midcentury anthropologists – as well as the 1947 AAA statement on human rights – took a much more politically engaged view than this caricature would suggest.10 Yet Merry’s critique usefully draws attention to some odd points of friction, of arguments working at cross-purposes, as between Engle’s account and that of much anthropological writing. Engle asserts for example that ‘the [AAA] statement calls for tolerance of difference, or cultural relativism’.11 Most anthropologists would assert that tolerance for cultural difference is not at all the same thing as cultural relativism. What is a salient difference from one point of view in this conversation is not from another. Merry also adds a second important point: international human rights law, too, has a culture, she argues. The point is to remind Engle, in a relativizing spirit, that Ibid at 67. Engle, ‘From Skepticism to Embrace’, supra note 1, at 556. 8 Ibid at 558. 9 Ibid. 10 Ibid at 554. 11 Ibid at 539. 6

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Anthropology, Human Rights and Legal Knowledge 11 __________________________________________________________________ her own knowledge practices, as exemplified in this article are specific, particular, and available for study as ethnographic objects. Here, Merry builds upon a growing body of work in the anthropology of human rights in which she has been a pioneer. As Mark Goodale explains in his Introduction to this ‘In Focus’ collection, the last ten years have seen many anthropologists turn from treating human rights doctrines, actors, and institutions as instruments to be used (e.g., as a tool of advocacy on behalf of indigenous peoples) to treating them as subjects of ethnographic research, on par with other ethnographic subjects.12 In this article, I want to take up Merry’s suggestion that international human rights knowledge of the specific kind exemplified by Engle’s intervention is a ‘culture,’ in the specific sense of a potential subject of ethnographic study. What interests me about the conversation between Engle and Merry is its very condition of possibility. Engle’s analysis is representative of a growing body of scholarly and activist projects by lawyers involved in the administration and academic analysis of human rights who nevertheless perceive themselves as skeptics of the human rights regime. These lawyers look to anthropological accounts as a source of theoretical insight and, as we will see, of methodological escape from the constraints of human rights knowledge itself. These lawyers find common ground with many contemporary anthropological accounts. They assert that rather than ‘solve’ the cultural relativism problem in human rights, one should ask what it hides, what it reveals, and who has an interest in framing the principal conversation between the First and Third Worlds in the vocabulary of ‘rights versus culture’ – as opposed, for example, to the vocabulary of critiques of neoliberal economic models. 13 One refrain in this movement is skepticism about invocations of both culture and of victimhood as well as attention to the political consequences of labeling some persons human rights ‘victims.’ For example, a number of feminist critical human rights lawyers argue – in ways evocative of feminist anthropological arguments about human rights, including Merry’s own – that treating women as victims under international law encourages non-Euro-American feminists to slot themselves into the role of native subject in their engagements with international legal institutions.14 12 Mark Goodale, ‘Introduction’, 108 American Anthropologist (forthcoming 2006); Sally Engle Merry, Human Rights and Gender Violence: Translating International Law into Local Justice (University of Chicago Press: Chicago, 2005); Merry, 108 American Anthropologist (forthcoming 2006); Annelise Riles, The Network Inside Out (University of Michigan Press: Ann Arbor, 2000); Richard Wilson, Human Rights, Culture and Context: Anthropological Perspectives (Pluto Press: London, 1997); Richard Wilson, The Politics of Truth and Reconciliation in South Africa (Cambridge University Press: Cambridge, 2001). 13 Eg. Balakrishnan Rajagopal, International Law From Below: Development, Social Movements and Third World Resistance (Cambridge University Press: Cambridge, 2003) at 166. 14 Ratna Kapur, ‘The Tragedy of Victimization Rhetoric: Resurrecting the “Native” Subject in International/Post-Colonial Feminist Legal Politics’, 15 Harvard Human Rights Journal (2002) 1-37.

Finnish Yearbook of International Law (Vol. XV, 2004) 12 __________________________________________________________________ Indeed, what is remarkable about this conversation between Merry and Engle is how much is agreed upon by the two sides at the level of theory. 15 Both Merry and Engle agree that culture should not be considered a static, reified thing. Both also agree that for human rights law, culture is ‘the other’.16 Both agree that an emphasis on culture as the source of women’s oppression has the effect of masking other sources and causes of oppression.17 But Merry’s assertion that human rights law also is a culture implicitly points to what is disturbing to an anthropological reader about Engle’s article: Engle goes beyond shared views of culture, power, and law to take an interest in anthropology’s methods of cultural analysis and, more than this, to appropriate and apply these back onto the study of anthropological discourse and methodology itself. What is significant about Engle’s analysis of anthropologists’ changing engagement with the human rights regime, aside from the argument itself, is that she is studying anthropologists and their discourse as a cultural artifact in its own right. In this respect, Engle’s article breaks out of the stable frame of analysis maintained even in most studies of human rights as a ‘culture,’ in which human rights practices and discourses have remained an object of analysis distinct from the social scientific observer. As I will describe, this appropriation of anthropology’s methods – the appropriation of cultural analysis, and of ethnography, not simply of anthropological concepts such as ‘culture’ – is an increasingly common occurrence in the human rights world. This suggests that it is necessary to treat the intersections and gaps between disciplines as its own ethnographic zone, to observe how particular actors make claims for themselves and their disciplines through and against disciplinary accounts and the borrowing of one another’s methods. In this context, the question of how exactly anthropology’s methods and tools get appropriated, reformulated, taken apart, critiqued, and reclaimed becomes a subject worthy of ethnographic investigation. Accordingly, I want to extend recent ethnographic work on the culture of human rights regimes to revisit ethnographically the marginalization and appropriation of anthropology’s tools and insights by the human rights regime. Attending to the contours of this discursive landscape will require rethinking the project of the anthropology of human rights and, indeed, the project of the Cf. Annelise Riles, ‘The Virtual Sociality of Rights: The Case of “Women’s Rights Are Human Rights”’ in M. Likosky (ed.), Transnational Legal Processes (Cambridge University Press: Cambridge, 2002) 420-439. 16 Merry, ‘Human Rights Law and the Demonization of Culture’, supra note 5, at 60. 17 Merry, ‘Human Rights Law and the Demonization of Culture’, supra note 5, at 63; see Karen Engle, ‘Female Subjects of Public International Law: Human Rights and the Exotic Other Female’, 26 New England Law Review (1992) 1509-1526; Karen Engle, ‘International Human Rights and Feminism: When Discourses Meet’, 13 Michigan Journal of International Law (1992) 517. 15

Anthropology, Human Rights and Legal Knowledge 13 __________________________________________________________________ ethnography of expert cultures in a number of ways. Douglas Holmes and George Marcus have recently argued that what they term ‘para-ethnographic’ activities – activities that are in some sense analogs to ethnography – are, in fact, quite ubiquitous aspects of cultures of expertise.18 Holmes and Marcus’ insight in turn evokes longstanding debates in the anthropology of law and science about the specific problems associated with ‘studying up’.19 Yet the phenomenon at issue in this case is something more challenging still than ‘analogs’ to anthropological practice or even ethnographic subjects on par with anthropologists in terms of levels of expertise, authority, or status. Here, we have subjects who explicitly appropriate anthropology’s methods, concepts, and practices, even to the extent of turning these back on the study of the discipline of anthropology itself. Moreover, one condition of this ethnography is that the bureaucratic, scholarly, and activist outputs skeptical lawyers are already deeply intertwined with the personal and institutional networks, reading lists, and publication practices of anthropologists working in human rights fields. In some ways, the subject is already too well known to be apprehended as a ‘new ethnographic subject.’ One way to describe this condition would be to say that anthropological knowledge and human rights knowledge often work the same terrain, but at crosspurposes. One example would be the consequences of anthropology’s disciplinary commitment to context when anthropological discourse enters the human rights field. Anthropologists sometimes invoke context in debates about human rights when they assert that different geographical and social contexts produce entities of different orders. For example, claims to rights to be free from military violence in Peru do not require engaging claims that the veil violates women’s human rights in Afghanistan, an anthropologist might assert, because the context of the deployment of human rights discourse in one case is so radically different than in the other. Yet this impulse to contextualize is directly at cross-purposes with the logic of human rights claims. Human rights rhetoric is a tool precisely for rejecting such appeals (by so-called human rights ‘violators’) regarding the special social, political, or economic context of their particular acts of violation. Human rights rhetoric is effective only to the extent that it negates such contextually derived distinctions – to the extent that it is possible to claim that a human rights violation anywhere is of the same epistemological order and of the same moral, political, or legal significance as a human rights violation elsewhere. By virtue of anthropologists’ very participation in Douglas R. Holmes, and George E. Marcus, ‘Cultures of Expertise and the Management of Globalization: Toward the Refunctioning of Ethnography’ in A. Ong and S. J. Collier (eds.), Global Assemblages: Technology, Politics, and Ethics as Anthropological Problems (Blackwell: Oxford, 2005) 235-252. 19 Laura Nader, ‘Up the Anthropologist – Perspectives Gained from Studying Up’ (First Published 1969) in D. Hymes (ed.), Reinventing Anthropology (University of Michigan Press: Ann Arbor, 2002) 284311. 18

Finnish Yearbook of International Law (Vol. XV, 2004) 14 __________________________________________________________________ human rights rhetoric, therefore – that is, in order to demonstrate their membership in the community of human rights enforcers (and to counter suspicions that anthropologists side with human rights violators, as in the ‘culture’ debates) – anthropologists working for human rights in Peru would seem to be forced to negate their own commitments to contextual differentiation. 20 What is interesting for present purposes is that both Merry and Engle agree that the field of human rights is a distinctly legal culture. 21 Indeed, for Engle, anthropologists’ struggle with the subject of cultural relativism is better understood as a struggle with their own relationship to human rights law as a discursive regime. I read Engle’s analysis to suggest that in the human rights world, the culture concept itself is often a linguistic marker, a shorthand for the problems with the legal human rights regime and for moments or points of rejection of that regime. An invocation of ‘culture’ is a performance of dissent within this vocabulary. When anthropologists assert that culture is not a problem for human rights, then, it is a way of saying that they wish to participate in the legal regime human rights rather than dissent from it. There is growing agreement among both anthropologists and critical lawyers that in many cases the knowledge practices at stake in human rights regimes borrow implicitly or explicitly from legal institutions, theories, doctrines, and forms of subjectivity. In my own work, I have shown how the knowledge practices of even the least overtly legal of United Nations activities, the United Nations World Conferences, are best understood as spheres of legal knowledge – insofar as they explicitly engage diverse constituencies (from so-called experts to so-called grassroots) in a common practice of document production that emulates legal practices.22 Harvard Law Professor David Kennedy, a prominent figure in the critical study of international human rights law, makes the same point from his disciplinary perspective: The daily newspaper reminds us that it is the sovereign, the President, the Parliament, the government, which decides. Theirs is the vocabulary of politics … But increasingly the decisions which allocate stakes in global society are not taken there and are not contested in these terms. They are taken by experts, AnnJanette Rosga offers another example. She recounts her attempts to ‘contextualize’ the social scientific study her informants had asked her to produce by revealing in the final report the social process of its making, and the social, political, and economic difficulties encountered along the way. Rosga’s informants respond to a draft of her report with annoyance and distress. She concludes by asking, ‘Do anthropological moves to “reveal” constructedness pull the rug out from beneath human rights actors who assume constructed-ness but who feel the need to present more “transparent” findings in order to get funding?’ AnnJanette Rosga, ‘The Traffic in Children: The Funding of Translation and the Translation of Funding’, 28(2) Political and Legal Anthropology Review (2005) 258-281. 21 Merry, ‘Human Rights Law and the Demonization of Culture’, supra note 5, at 71. 22 Riles, The Network, supra note 12. 20

Anthropology, Human Rights and Legal Knowledge 15 __________________________________________________________________ managing norms and institutions in the background of this public spectacle – legal norms and private institutions, decisions rendered in technical vocabularies.23

In this article, I build upon these observations to argue that the problems anthropologists encounter with the appropriation and marginalization of anthropology’s analytical tools are best understood in terms of the particularly legal character of human rights.24 In other words, I argue that an ethnographic understanding of many aspects of the human rights regime demands treating such aspects as spheres of legal knowledge practice. To be more precise, I posit that the discursive space of ‘interdisciplinarity’ between anthropology and human rights is animated by the pervasive instrumentalism of legal knowledge. From this perspective, I argue that anthropologists and critical lawyers who critically engage the human rights regime share a common problem – the problem of the iron cage of instrumentalism – although they encounter it in different ways and from the vantage point of different starting problems and ultimate solutions. I conclude that the ethnographic method, reconfigured to respond to the specific challenges of legal instrumentalism, offers a respite from the hegemony of legal instrumentalism at those points at which critique and irony, the tools of critical human rights lawyers, fail.

Human Rights Skepticism I approach this subject from the point of view of my ethnographic work among critical human rights lawyers. As part of a larger study of the character of legal knowledge among lawyers working in various capacities in the United States, Europe and Japan, I have worked closely over the past ten years with legal scholars, bureaucrats, and activists involved in various aspects of international law, human rights, and ‘law and development.’ All of these people share a profound and David Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (Princeton University Press: Princeton, NJ, 2004) at 349. 24 The anthropology of human rights has tended to reproduce methodologically the human rights community’s own divide between human rights institutions and actors, on the one hand, and the clients of human rights institutions, on the other. My discussion here is limited to the anthropology of human rights professionals rather than their clients. There is however now a considerable body of new and challenging ethnographic work on the clients of human rights organizations, e.g., Wendy Coxshall, ‘From the Peruvian Reconciliation Commission to Ethnography: Narrative, Relatedness, and Silence’, 28(2) Political and Legal Anthropology Review (2005) 203-222; Iris Jean-Klein, ‘Into Committees, out of the House? Familiar Forms in the Organization of Palestinian Committee Activism during the First Intifada’, 30(4) American Ethnologist (2003) 556-577. 23

Finnish Yearbook of International Law (Vol. XV, 2004) 16 __________________________________________________________________ sophisticated skepticism about various aspects of the human rights regime – its theoretical claims, its institutional practices, and its archetypal subjectivities. The particular skeptics of human rights law with whom I have worked are largely associated, in one way or another, with a school of international legal theory they term the ‘New Approaches to International Law’.25 David Kennedy coined the term New Approaches to International Law and its acronym NAIL. Kennedy once explained to me that the adjective new meant nothing at all and, hence, revealed nothing substantive; nevertheless, it had an inherently positive valence. ‘Who can be against the New?’ he said. In 1997, Kennedy organized a conference at Harvard entitled ‘Fin de NAIL: A Celebration’.26 The conference launched the term in the vocabulary of the broader field of international law and human rights. But it did so by pronouncing the ‘new approaches’ as already officially over at the moment of its launching. The NAIL seemed to anticipate possible future critics of their own movement with the observation that there is really no point in critiquing (or for that matter describing ethnographically) the NAIL since it was already over. Participants in the NAIL include legal academics; bureaucrats working in international organizations such as the World Bank, the International Monetary Fund, and the European Commission; members of the foreign service of various countries; practicing lawyers; investment bankers trained as lawyers; individuals running NGOs in the developing world; and so forth. The community in question is geographically dispersed – from Cairo to Cambridge, Nairobi, Seoul, Madison, and Rio de Janeiro. Nevertheless, these skeptics enjoy relatively easy access to the considerable public, private, and university funding resources available for ‘global’ projects in human rights, law and development, or rule of law reform; hence, they meet frequently. Since the mid-1990s, there have been several annual international conferences on doctrinal subjects in international law (comparative law, new forms of international regulation, public international law, human rights law, etc.). These conferences have provided the more formal setting for such skeptics to meet, and over the years, several hundred persons have participated in such conferences. But formal conferences are only one venue. There are also more informal settings such as gatherings at one person’s country house in New England, or the south of France; the constant flow of apprentices (graduate students, young bureaucrats in training, visiting technical experts and visiting lecturers, romantic partners); a continual circulation of texts (academic articles, position papers) via e-mail; gossip; as well as mutual intellectual, political, and personal critique – all of which are equally constitutive forms of knowledge production. E.g. Riles, ‘The Virtual Sociality of Rights’, supra note 15. See Thomas Skouteris, ‘Fin De NAIL: New Approaches to International Law and Its Impact on Contemporary International Legal Scholarship’, 10 Leiden Journal of International Law (1997) 415-420.

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Anthropology, Human Rights and Legal Knowledge 17 __________________________________________________________________ These meetings are important to the individuals who attend them because one of the crucial aspects of their own subjectivity, in their own conception, is a sense of their own marginality vis-à-vis the human rights regime, by virtue of their skepticism. Notwithstanding this self-image of professional and political marginality, however, these skeptics now include persons who hold key positions at many elite academic institutions around the world, and persons who play key roles within international bureaucracies from the United Nations to the European Commission to the diplomatic service in both the developed and developing world. In his ethnographic work among participants in the international humanitarian organization Medecins Sans Frontières (MSF) in Europe and in Africa, Peter Redfield describes an analogous phenomenon. MSF workers, with a dose of irony, work to maintain for themselves an image of the ‘unshaven, cigarette-smoking French man,’ in the words of one MSF volunteer, 27 even as their operations have grown to a global scale, taken on a highly professionalized valence, and received such mainstream recognition as the Nobel Peace Prize. Another pronounced feature of these skeptical lawyers’ subjectivity is a highly self-conscious marginality, a carefully performed self-positioning at arm’s length distance from every given political position and associated group, including even the NAIL itself. People who participate in this sociality recoil at the embarrassingly naive suggestion that they are ‘members’ of a group or ‘adherents’ to any particular ideology. If one were to ask many of my informants to recount their recent professional life histories, it would be clear that NAIL activities play an important role in their own self-descriptions. Nevertheless, these informants do not wish to go so far as calling themselves ‘NAIL persons’ or ‘NAIL members’ – that is, they do not wish to suggest that these activities are actually constitutive of their own identities. I know of no one – not even the persons who might be objectively described as the founders of the NAIL – who would openly claim, ‘I am a “new approaches” person.’ In fact, most of my NAIL friends would quibble with a characterization of them personally as exemplars of persons involved in the NAIL (although they would usually agree with the characterization of others). There is considerable division of opinion about issues ranging from the relative importance of political economic analysis versus deconstruction, to the value of engaging in debate with so-called human rights ‘true believers,’ to the privileging of Euro-American and male perspectives. In the late 1990s, a number of ‘new approaches’ conferences became stages for disputes over what scholars who represented ‘Third World’ perspectives (organized as an informal subgroup within the NAIL under the acronym TWAIL, or Third World Approaches to International Peter Redfield, ‘Against Sacrifice: The Residual Hope of Humanitarian Action’. Paper presented at the Annual Meeting of the American Ethnological Society, San Diego, CA, April 10, 2005.

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Finnish Yearbook of International Law (Vol. XV, 2004) 18 __________________________________________________________________ Law) saw as the marginalization of questions of particular concern to them by some First World white male professors. But there are also other sources of conflict within the NAIL, ranging from disputes over questions such as who makes the best dinner company – human rights victims or human rights victimizers – to personal divisions resulting from the breakup of romantic partnerships, to negative evaluations of one another’s performances at academic conferences, often retold with wicked humor over drinks following formal proceedings. Although the content of NAIL skepticism is asserted in different theoretical vocabularies and in different modalities (academic articles, internal bureaucratic documents, NGO position papers), and although different individuals emphasize different issues, a summary of the theoretical positions of these lawyers may prove useful as a guide.

A Critique of Power Relations This critique includes the following points: Numerous forms of coercion take the form of intervention in the name of, or compliance with, human rights. 28 The field of human rights is a predominantly U.S. project; hence, it raises questions about U.S. global domination in particular.29 One also cannot discuss human rights without analyzing the influence of large donors based primarily in the United States and Europe who, whether purposefully or not, promote certain local intellectuals and projects that fit more closely with their own agendas while ignoring others. 30 Moreover, human rights discourse has now achieved a kind of hegemonic status: It is ‘the sole approved discourse of resistance’.31 Hence, it is important to pay attention both to what cannot be said in the language of human rights and to the way human rights discourses disempower other discourses of resistance.

A Distrust of Claims to Ethical Purity Perhaps what unites these skeptics more than anything else is an instinct that simple ethical positions – the good human rights activist versus the bad human rights violator – are doing far more work than first meets the eye. First-hand accounts of experiences in the human rights world, often told in a highly entertaining tone, serve as recurring parables, whose point is that human rights work is often less in the 28 Makau Mutua, Human Rights: A Political and Cultural Critique (University of Pennsylvania Press: Philadelphia, 2002) at 19. 29 Ibid at 36. 30 Ibid at 38. 31 Rajagopal, supra note 13, at 165.

Anthropology, Human Rights and Legal Knowledge 19 __________________________________________________________________ service of ‘victims’ and more in the service of the legitimation of the human rights regime, its institutions, and the activists and bureaucrats who work within those institutions (and along with these, the funding streams, professional, and symbolic capital that allow this work to continue). This is fine, from the NAIL point of view, but what is annoying is that these activists and bureaucrats refuse to admit this commonly understood truth and persist in pretending that they are doing ‘God’s work.’ The human rights lawyer Makau Mutua sums up the point: I know that many in the human rights movement mistakenly claim to have seen a glimpse of eternity, and think of the human rights corpus as a summit of human civilization, a sort of an end to human history. This view is so self-righteous and lacking in humility that it of necessity must invite probing critiques from scholars of all stripes.32

Mutua compares the self-presentation of the human rights activist to the arrogant zeal of the evangelical missionary.33 Others point to the hidden personal costs to the human rights worker who must continually suppress her own ‘bad faith’ in the entire human rights project in order to keep up heroic appearances. David Kennedy makes the point in a different way: Human rights types like to believe that they are powerless fighters for the powerless, speaking truth to power from outside the centers of authority, he points out. One comfortable consequence of this myth of their own powerlessness is that they rarely feel they must take responsibility for the consequences when human rights campaigns go dreadfully wrong as other, more powerful actors ultimately made the decision to invade Afghanistan or to bomb Sarajevo. For such people, ‘it can be unsettling to think of humanitarians, whether activists or policy makers, as participants in the world of power and influence’. 34 Janet Halley takes up the point in the context of the globalization of feminist discourses. She points to the growing hegemony of ‘United-Statesean feminism’ in global international organizations and the participation of feminism in new projects of global domination around the regulation of sex in particular: If you look around the US, you see plenty of places where feminism – far from slinking about underground – is running things. Sex harassment, child sexual abuse, pornography, sexual violence … In some important senses, feminism rules. Governance feminism. Not only that, it wants to rule. It has a will to power.35

Mutua, Human Rights: A Political and Cultural Critique, supra note 28, at x. Ibid. at 13. 34 Kennedy, The Dark Sides of Virtue, supra note 23, at xvii. 35 Janet Halley, ‘Take a Break from Feminism?’ in K. Knop (ed.), Gender and Human Rights (Oxford University Press: Oxford, 2004) 57-82 at 65. 32

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Finnish Yearbook of International Law (Vol. XV, 2004) 20 __________________________________________________________________ Although the figure of the human rights skeptic may seem rather marginal in the human rights landscape, recent ethnographic work among other classes of human rights workers suggests that the skepticism that these lawyers claim as their badge of distinction from the ‘mainstream’ human rights community may be far more generally shared. AnnJanette Rosga’s ethnographic work on the training of Bosnian police officers in human rights methodologies, on the one hand, and the production of social scientific research by international organizations seeking to document such human rights violations in Bosnia-Herzegovina, on the other, 36 unearths pointed, sophisticated, and also highly humorous internal discourses about the limits of human rights machinery among figures at the very center of the human rights machinery.37 Likewise, Peter Redfield’s Medecins Sans Frontières informants continually spoof themselves in their publications and speeches as a bunch of overgrown 1960s radicals out of touch with reality. What is interesting about all of these figures is that they elaborate critiques of the human rights regime in the very course of their own engagement with ‘doing’ human rights work. The skeptical human rights lawyers in the NAIL are also teaching human rights law, serving as expert witnesses, training military commanders in human rights technologies, producing human rights documents, going on human rights fact-finding missions, ordering military strikes, planning and implementing structural adjustment programs, and serving on university sexual harassment committees.

A Para-Academic Modality of Analysis But as the conversation between Engle and Merry suggests, there is one further aspect of this skepticism that explicitly calls anthropological discourse into conversation. It will be apparent to the reader that there is considerable theoretical affinity between these lawyers’ views of human rights and those of many anthropologists who study human rights. The points summarized above play a central role in the anthropological literature on human rights as well.38 Indeed, these lawyers import their critiques from bodies of theory that have also influenced the AnnJanette Rosga, ‘Transparency and Accountability: Trafficking in the Rule of Law’. Paper presented in ‘Anthropology of Sexuality Series,’ Cornell Law School, February 7, 2005; AnnJanette Rosga, ‘The Shalom Babies (Anti-?)Trafficking Ring’. Paper presented at the Annual Meeting of the American Ethnological Society, San Diego, CA, April 10, 2005; Rosga, ‘The Traffic in Children’, supra note 20. 37 Rosga, ‘The Shalom Babies’, supra note 36. 38 E.g. Lila Abu-Lughod, ‘Do Muslim Women Really Need Saving? Anthropological Reflections on Cultural Relativism and its Others’, 104(3) American Anthropologist (2002) 783-790; Mahmood Mamdani, When Victims Become Killers: Colonialism, Nativism and Genocide in Rwanda (Princeton University Press: Princeton, NJ, 2001); Diane Nelson, A Finger in the Wound: Body Politics in Quincentennial Guatemala (University of California Press: Berkeley, 1999). 36

Anthropology, Human Rights and Legal Knowledge 21 __________________________________________________________________ recent anthropology of human rights (for example, the work of Foucault, Fanon, Freud, Butler, Sedgwick, Marx, Derrida, and Lacan). These skeptics sometimes differentiate themselves from other human rights participants (in their own conception) by producing ‘theoretical’ styles of knowledge.39 In particular, they have written a substantial number of articles for academic law journals and have published some books aimed at an audience of human rights actors. I have also often heard the authors of some such articles and books express the hope that they might be recognized as wider public intellectuals with an audience beyond the human rights community. In this proto-academic guise, the methodology includes discursive and historical analysis aimed at excavating abandoned strands in the history of human rights law and at understanding the discursive roots of its limitations.40 For example, some articles and books trace the influence of ideas of civilizing and evangelizing missions, and accompanying tropes of the ‘civilized’ and the ‘savage,’ on the mediation of modern-day relations between the First and Third Worlds through the discourse of human rights. 41 These self-styled theorists are also particularly fond of what they term mapping exercises. These might involve analyses of fundamental concepts in human rights (such as the ‘culture’ concept) that reveal hidden tensions and contradictions. 42 Mapping can also mean producing a discursive catalog of the range of possible positions or arguments on any given issue in human rights that, while accurate, has the effect of objectifying the arguments of one’s colleagues in the ‘mainstream’, of turning them into discursive specimens. One initial ethnographic insight to be drawn from this material, then, is that to the extent that some anthropologists understand their task as critiquing the human rights regime and its discourse, they have competition. Some actors from within the human rights world already produce subtle and sophisticated critique. Moreover, these actors are deploying many of the same theoretical tools anthropologists deploy to launch this critique. Anthropologists certainly can engage in critique along side these actors, and perhaps even learn some critical moves from them, but we should not imagine that we have privileged access to a different or more devastating line of

See Skouteris, ‘Fin De NAIL’, supra note 26. E.g. Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870– 1960 (Cambridge University Press: Cambridge 2001). 41 E.g. Antony Anghie, ‘Francisco deVitoria and the Colonial Origins of International Law’, 5(3) Social and Legal Studies (1996) 321-336. 42 Rajagopal, International Law From Below, supra note 13, at 210. 39

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Finnish Yearbook of International Law (Vol. XV, 2004) 22 __________________________________________________________________ argument. In this respect, to the extent we claim critique as a plane of disciplinary privilege, our critique may indeed have ‘run out of steam’.43 But it is not just the space of critique that our subjects now claim for themselves. They also claim the space of cultural description and analysis. For example, in his recent book, David Kennedy includes several chapters of first person narrative that aim to capture the culture of human rights practice in its full subtlety and complexity. He does so in ways that uncannily resemble an ethnographic account.44 His first person accounts are full of sensitive and destabilizing insights that might make many an anthropologist of human rights envious. One feature of human rights as a fieldwork locale, in other words, is that the anthropologist must contend with, and perhaps even participate in, the subjects’ own para-ethnographic work.45

Bruno Latour, ‘Why has Critique Run out of Steam? From Matters of Fact to Matters of Concern’, 30 Critical Inquiry (2004) 225-248; Riles, The Network, supra note 12; Peter Redfield, ‘Doctors, Borders, and Life in Crisis’, 20(3) Cultural Anthropology (2005) 328-361. 44 Kennedy, The Dark Sides of Virtue, supra note 23. 45 Douglas R. Holmes, Integral Europe: Fast-Capitalism, Multiculturalism, Neofascism (Princeton University Press: Princeton NJ, 2000); Cf. Annelise Riles, ‘Encountering Amateurism: John Henry Wigmore and the Uses of American Formalism’ in A. Riles (ed.), Rethinking the Masters of Comparative Law (Hart: Oxford, 2001) 94-128. Human rights institutions even seem to anticipate the ethnographer’s arrival. Rosga recounts how her NGO subjects enlist her services as a researcher in producing a sociological study (AnnJanette Rosga, ‘The Traffic in Children’, supra note 20; Ulrika Dahl, ‘Social Science Seen Twice: Knowledge as “Activism”’. Paper presented at the workshop ‘Anthropology of Human Rights Administrations: Expert Observation and Representation after the Fact,’ New York, April 9, 2004.). The ethnographer arrives on the scene, in other words, to discover that the subjects claim that the anthropologist’s work – the work of producing cultural description – is already indigenously done. And to add insult to irony, some subjects, such as the human rights workers who engaged Rosga, are clever enough to get the work already indigenously done by the anthropologist herself. Rosga’s ethnographic discovery of how she was immediately slotted into the role of staff researcher is prescient. As I have suggested elsewhere, human rights slots ethnography in: There are gaps in the literal and figurative forms of the asylum petition for the expert ethnographic account, and even places in funding proposal for ethnographers to produce accounts of the organizational cultures of human rights administrations and the cultures of those administrations’ clients. Riles, The Network, supra note 12. Doug Holmes and George Marcus have discussed this condition in terms of the anthropologist’s ‘complicity’ with the subject, a phrasing that usefully foregrounds the necessity of refusing claims to ethical purity and neutrality in such ethnography. Holmes and Marcus, ‘Cultures of Expertise’, supra note 18; See also Bill Maurer, ‘Please Destabilize Ethnography Now: Against Anthropological Show-Biz as Usual’, 32 Reviews in Anthropology (2003) 159-169. I have recently described this condition as a question of collaboration and collegiality, in which the relationship with the ethnographic subject becomes a model for the relationship with the academic colleague and vice versa. Annelise Riles, ‘Deadlines’ in A. Riles (ed.), Documents: Bureaucratic Authorship, Academic Collaboration, Ethnographic Response (University of Michigan Press: Ann Arbor, forthcoming 2006). But I like Rosga’s formulation: ‘We’re just driving along, side by side, in the next lane’ (Rosga, conversation with author, April 10, 2005). 43

Anthropology, Human Rights and Legal Knowledge 23 __________________________________________________________________

Differences of Genre On closer observation, however, something is ‘off,’ from an anthropological perspective, in this work. David Kennedy’s cultural description, based on short trips to conferences, a day on a battleship, a few days on a human rights mission, and so on, more closely resembles the genre of 19th century travel diaries than Malinowskian social science. The ‘mapping exercises’ that dominate the academic work of these skeptical lawyers are likely to strike anthropological audiences as somewhat sloppy, imprecise, and uninformed. One anthropologist friend to whom I recommended David Kennedy’s book commented after reading it that it was an arbiter of the law professor’s privilege that the author could make points that are in general circulation in the academic culture without acknowledging the work of others, or perhaps that the author could even hold onto the conceit that he or she is the inventor of those ideas. Other anthropologists have commented on their frustration with these lawyers’ lack of interest in the details of human rights conditions in locales that the anthropologist has experienced first hand. It is perhaps this irksome sense of amateurism, of free play and frivolity about the details, that animates Merry’s critique of Engle’s discussion of anthropological debates. Other anthropologists have criticized what they see as the futility of legal theory games for their own sake – the propensity of these lawyers to play freely and loosely with concepts, to mix and match, to do some structuralism here and some psychoanalysis there without a clear sense of theoretical, epistemological, or ethical commitment. How should we make sense of this disjuncture between analytical styles, and is the propensity on the part of anthropologists to see in this disjuncture a disciplinary difference warranted? In order to begin to answer this question, it is necessary to say more about the cultural practices of these skeptical human rights lawyers. Beyond the scholarship, there are also differences in genre of self-presentation. The carefully calibrated and yet highly ironic move of self-constitution as a movement whose moment has passed – as implied by the conference title ‘Fin de NAIL’ – gives some sense of the discursive sophistication of these actors. It also is suggestive of the importance of image – of producing a proper subject and object – for these actors. In my conversations with anthropologists who have attended NAIL conferences, I have heard many anthropologists voice distaste at what they perceive as a ‘posturing,’ ‘flippant,’ and ‘cliquish’ personal style on the part of attendees at NAIL events. For some anthropologists, however, the problem may not be differences, but similarities. Comments from some anthropologists suggest a certain confusion or even frustration about the fact that skeptical human rights lawyers do not behave in the different, lawyerly way these anthropologists might have imagined human rights

Finnish Yearbook of International Law (Vol. XV, 2004) 24 __________________________________________________________________ lawyers to behave. These lawyers seem too interested in critical theory and too uninterested in the technical details of law. Furthermore, their work seems inadequately focused on designing and implementing ‘concrete’ human rights projects ‘on the ground.’ They should be less internally focused and more ethically committed. They should be acting in the trenches, not in the ivory towers of theory, in other words. The criticism is a source of consternation for some skeptical lawyers. One critical human rights lawyer told me of the experience of attending an interdisciplinary conference at which the literary theorists repeatedly prodded him to take more mainstream positions on doctrinal legal subjects, and they repeatedly voiced frustration at his interest in ‘theoretical’ questions. When he refused to play the role they had set out for him, he told me, one cultural theorist told the group, ‘I think our problem is that we have the wrong lawyers at this conference’. 46 The human rights lawyer found the story amusing but also symptomatic (to use his wording) of cultural studies scholars’ fantasies about the law. But one might make the same observation about these lawyers’ fantasies about anthropology. For their part, as Merry suggests in her article, critical human rights lawyers entertain fantasies about anthropology as the realm of ‘culture,’ as a kind of ready-at-hand antidote to the technocratic rationalities of law. These lawyers often voice a hope that anthropology might be a realm of imaginative possibility, or of glamorous new theory, perhaps even a semi-utopian space full of accounts of modernism’s others – in short, of scholarship untethered from instrumentalism. Hence, many express frustration when anthropologists put their own knowledge practices to one side to advocate in ‘lawyerly’ language for human rights. In an analogous way to some anthropologists’ sense that something is ‘off’ in these lawyers’ usage of theory, critical lawyers argue that something is ‘off’ in anthropologists’ invocations of law. One example of this criticism appears in a 2003 debate in Political and Legal Anthropology Review47 between John Borneman and legal scholar Kunal Parker regarding U.S. intervention in Iraq. Borneman, the anthropologist, advocates the rule of law after ‘regime change’ in Iraq; meanwhile Parker, the legal scholar, expresses skepticism about Borneman’s underlying conception of ‘law.’ Parker argues that Borneman can sustain his faith in the potential of the rule of law in postinvasion Iraq only by subscribing to a naive layperson’s understanding of the separation of law and politics: Borneman’s faith in the distinction between ‘democracy’ v. substance, with its historical contingency, and ‘law’ v. procedure, with its alleged ahistorical 46 47

Conversation with author, April 15, 2005. Political and Legal Anthropology Review (Vol. 26, No. 1) 2003.

Anthropology, Human Rights and Legal Knowledge 25 __________________________________________________________________ universality and stable meaning. American legal historians have long known that the boundaries between ‘politics’ and ‘law,’ or between ‘substance’ and ‘procedure,’ are infinitely malleable and have shifted over time. Calling something ‘legal’ or ‘procedural’ has served as much to designate it as not ‘political’ or not ‘substantive,’ and thereby to mask its political nature, as anything else. Furthermore, the meaning of the most ‘procedural’ law is always indeterminate.48

Parker’s argument here is not idiosyncratic: I have heard critical lawyers point out on several occasions that anthropologists believe too much in a simplistic, idealized view of law in general and of human rights in particular. This demonstrates that anthropologists are not experts on human rights – if they were, they would be more agnostic about human rights law, because the marker of a true expert is a subtle agnosticism. But it is equally interesting that this exchange about the character of law builds upon an earlier disagreement about the nature of anthropological knowledge. Parker writes, Borneman states that he speaks as a social anthropologist, as one ‘concerned with aspects of the social, of rebuilding the social body and its culture after violent conflict.’ Are we to take it then that anthropology's role in the unfolding narrative of ‘regime change’ is to be no more than one of identifying for political power the realm of the ‘social’ as something that needs the most thorough ‘caring’ transformation? I hope not.49

To which Borneman replies, Parker imagines a bemused and benign role for anthropologists, where ethnographic encounters render our ‘mediated conceptual weaponry … mysterious, serendipitous, and surprising.’ This is a lovely romantic vision, but just does not hold (if, in fact, it ever did) for most contemporary fieldworkmediated knowledge. Most of our encounters are downright repetitive and predictable, even though they also entail unanticipated forms of engagement and kinds of responsibilities. We are told to look for cracks in the facade, from margins to center, for hope amidst despair, or critique at the heart of the assertion of habit. But these are positions of initial engagement, not outcomes of a longer period of engagement with alterity and of a writing process, at the end

Kunal Parker, ‘History, Law and Regime Change’, 26(1) Political and Legal Anthropology Review (2003) 43-48 at 46. For his part, Borneman takes Parker to task for his ‘postcolonial’ academic sensibility. John Borneman, ‘Rejoinder’, 26(1) Political and Legal Anthropology Review (2003) 49-54 at 50. 49 Parker, ‘History, Law and Regime Change’, supra note 48, at 47, citations omitted. 48

Finnish Yearbook of International Law (Vol. XV, 2004) 26 __________________________________________________________________ of which surprise, or the distinction between margin and center, is often just a heuristic device if not a ruse employed to claim ethnographic authority.50

In this exchange, Parker and Borneman stake out clear disciplinary perspectives: Each speaks from the standpoint of a discipline – law or anthropology. Each steadfastly, even absolutely, refuses the fantasy the other holds about his discipline. Law cannot master politics, as the anthropologist might fantasize, Parker tells Borneman; fieldwork cannot produce surprise, as the lawyer might fantasize, Borneman retorts. Their dialog highlights some of the frustrated fantasies and confusions about genre that pervade the engagement of anthropological and human rights discourses. In the section that follows, I argue that this problem is best understood by treating human rights as one instantiation of legal knowledge practices.

Human Rights Instruments Although the rich and sophisticated exchange between Parker and Borneman described above involves many issues, from the character of ethnography to the nature of politics, what first ignites Parker’s critique of Borneman’s argument for the Rule of Law is Borneman’s confidence that law can be wielded successfully as a tool. Engle’s criticism of anthropologists’ ‘embrace’ of the human rights regime likewise reflects a certain bemused frustration with what she views as anthropologists’ newfound faith in the instrumental value of human rights. These two lawyers’ skepticism about the instrumentalist understanding of law they find in the work of their anthropological interlocutors builds upon a long history of legal instrumentalism and of frustrated attempts to critique and dislodge it. As I have shown elsewhere,51 an instrumentalist conception of law is the agreed theoretical and political basis of modern U.S. law. This political and theoretical understanding of law as a tool or instrument also provides the concrete, day to day form of legal knowledge practice – that of thinking in terms of relations of means to ends. The phrase ‘law is a means to an end’ or ‘law is an instrument’ appears hundreds of times in the canonical texts of modern U.S. jurisprudence.52

Borneman, ‘Rejoinder’, supra note 48, at 53. Annelise Riles, ‘Property as Legal Knowledge: Means and Ends’, 10 Journal of the Royal Anthropological Institute (2004) 775–795. 52 For example, the celebrated early-20th-century modernist legal thinker Roscoe Pound argued that ‘being scientific as a means to an end, [law] must be judged by the results it achieves, not the niceties of internal structure; it must be valued by the extent to which it meets its end, not by the beauty of its 50

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Anthropology, Human Rights and Legal Knowledge 27 __________________________________________________________________ This technocratic instrumentalist understanding of law is as prevalent in projects of legal reform that present themselves as politically ‘progressive’ as it is in the service of conservative projects. To think like a lawyer is to think of law as a tool or a means to an end, whether one imagines law as a tool of social justice or a tool of corporate interests. This is not to suggest that legal knowledge does not, at particular points, invoke, defer to, or deploy genres of knowledge that are explicitly imagined as ‘not technocratic,’ as demonstrated in Mariana Valverde’s53 work on the uses of common knowledge in legal settings. Indeed, I want to suggest that we understand the fascination with culture and with anthropological methods as just one such point of invocation and deferral. Yet the uses of such knowledge, and the framework within which it enters legal debates, remains defined by an instrumental logic. In the postwar period, international law has developed in an increasingly technocratic direction. The influence of the vision of law at work in modern U.S. law has been particularly strong through, among other things, the leadership role of U.S. trained lawyers (of various nationalities) in the building of key institutions of the postwar international legal regime. These U.S. trained lawyers have promoted a vision of international law as a set of problem-solving institutions and of legal techniques deployed and managed by international bureaucrats. In this way, the technocratic instrumentalism that pervades U.S. domestic legal knowledge has also become the hegemonic form of international legal reform projects such as human rights. Critical legal scholars have articulated a number of sophisticated critiques of the technocratic instrumentalism of legal knowledge. First, they emphasize that it depoliticizes social conflict. Instrumentalism is sometimes presented as a progressive approach to the law – human rights doctrines in the service of grassroots people, as a means to social ends, for example. Yet some critics suggest that the technocratic, managerial, pragmatic orientation of legal instrumentalism contains a built-in bias against more fundamental change. For example, technocratic processes for advancing women’s human rights may in fact predefine what counts as a harm in ways that are profoundly limiting. Some women from the French territories in the Pacific among whom I conducted fieldwork experienced tremendous frustration with the fact that at the United Nations Fourth World Conference on Women held in Beijing in 1995, it was procedurally difficult to define the experience of colonization as a women’s human rights issue. In UN parlance, colonization is a political question, not a technical one.54 logical processes or the strictness with which its rules proceed from the dogmas it takes as its foundation’. Roscoe Pound, ‘Mechanical Jurisprudence’, 8 Columbia Law Review (1908) 605-623 at 605. 53 Mariana Valverde, Law’s Dream of a Common Knowledge (Princeton University Press: Princeton, 2003). 54 Riles, The Network, supra note 12.

Finnish Yearbook of International Law (Vol. XV, 2004) 28 __________________________________________________________________ Critical legal scholars have contributed sensitive, yet scathing, sketches of the ‘double binds’ and ‘bad faith’ entailed in the subjectivity of the technocrat who, in order to assume his proper role, must develop a professional insensitivity to certain kinds of ‘irrational’ interests. For example, it becomes necessary for the Venezuelanborn but Harvard-trained lawyer at the international organization to assert that Latin American nongovernmental organizations that speak about the harms of neoliberal legal reforms are well intended but just do not understand the technical details. Or it becomes necessary for the advocate of humanitarian intervention to turn a blind eye to the collateral damage inflicted by such interventions.55 For my informants, these questions frame the practical conditions of the institutional politics within which they operate. They have many stories about being passed over for promotions, being ignored as candidates to lead important projects, or being denied tenure at universities on grounds that their approach to international law is ‘just not practical.’ I was recently told of a young diplomat who, when asked to write a country report on human rights in China, produced a brilliant discussion of the ways human rights rhetoric was being deployed and redeployed in the service of projects most would see as decidedly not progressive. Needless to say, the storyteller told me, the diplomat was required to rewrite the report entirely to eliminate this ‘extraneous’ discussion. In these persons’ view, an unquestioned belief in the fundamentally instrumental nature of law, as well as a lack of tolerance for ‘theory,’ ‘utopian thinking,’ or ‘critique,’ have too often convinced well-meaning people in the human rights system to take the wrong positions. Yet it is well accepted by critical human rights scholars that even the most sophisticated critiques of the political biases of instrumentalism usually cannot be articulated or heard within human rights institutions. In the legal academy and in international human rights organizations alike, critical lawyers bitterly recount the experience of watching efforts to critique the distributive consequences of technocratic regimes get sidelined on their own technocratic grounds. This problem with the failure of critiques of instrumentalism for critical lawyers also indexes their sensitivity to what they perceive as the larger failure of critique in the face of the hegemony of neoliberalism. It is not simply that critique fails to dislodge legal instrumentalism, for these lawyers: instrumentalism is also the condition of their own daily work, as laborers in the law. Whatever sociality critical human rights lawyers share through conferences, e-mail contacts, and holiday visits, daily work and life takes place in a quite different register. In their work as law teachers, they must teach legal doctrine from a largely instrumentalist point of view; in their work as bureaucrats, diplomats, or corporate lawyers, they must think about legal projects, and about their own role in those 55

Kennedy, The Dark Sides of Virtue, supra note 23.

Anthropology, Human Rights and Legal Knowledge 29 __________________________________________________________________ projects, in an instrumentalist way. I have often heard critical human rights lawyers talk of ‘passing’ as ‘mainstream lawyers’ or of their ‘closeted life’ in the bureaucracy, the law firm, or the academy, speaking in only half-joking parallels to the experiences of sexual and racial minorities. Some people I know resent this daily engagement with instrumentalist legal knowledge as an intrusion, a waste of time, or even a kind of subjugation. Others enjoy their involvement in ‘mainstream projects,’ value that work as a kind of craft, and are proud of their modest accomplishments in that world. However, for all my informants, the opportunity to perform one’s skepticism of legal instrumentalism in some contexts depends also on submission to the instrumentalist knowledge practices and forms of subjectivity that define human rights law at other times and in other contexts. In this sense, instrumentalism becomes the iron cage of daily knowledge work from which engagement with critical theory and with anthropology – as well as participation in events at which one is encouraged to voice one’s skepticism about legal knowledge explicitly – serves as an exception, a point of respite. These individuals persist in understanding their skepticism about the human rights regime as a marginal position in the human rights world because they interpret their personal successes within human rights institutions as the result of their skill in hiding their skepticism, not the result of that skepticism. I believe that we can understand these persons’ careful performances of marginality or distance from both mainstream and critical positions, and their heightened sensitivity to questions of self-presentation, as an effect of the complicated self-positioning required to balance their subtle and multifaceted relationship to the instrumentalism of legal knowledge. From this point of view, we can understand the styles of scholarship and selfpresentation – the performances of frivolity, gossip, even purposeful academic amateurism – as (momentary) positions of something that is not technocratic lawyering. Indeed, this is precisely what some anthropologists found puzzling about these performances. The lawyers’ spoofs of the earnestness (to use their wording) of human rights activists and the identity claims of human rights victims become ways of drawing attention to an ethical landscape in which human rights victim, human rights violator, and human rights advocate all are already instrumentalized subject positions. These are attempts to show how one cannot engage these subject positions outside the hegemonic logic of means and ends, despite the efforts of various players in this game to divide themselves into what Mutua calls the human rights ‘saviors,’ the human rights ‘victims,’ and human rights ‘savages’.56 The genre of the spoof or the purposefully frivolous draws attention to these ironies without producing yet another earnest and hence instrumentalizable account 56

Mutua, Human Rights: A Political and Cultural Critique, supra note 28, at 10.

Finnish Yearbook of International Law (Vol. XV, 2004) 30 __________________________________________________________________ of the human rights regime. In other words, these performances reject the earnestness of efforts to critique legal knowledge as both ineffective and intellectually disingenuous. It is seen as ineffective because it is too easily either sidelined by technocratic reasoning or instrumentalized as the rationale for further ‘interventions’ on behalf of further ‘victims’; it is viewed as disingenuous because it fails honestly to acknowledge the critic’s own participation in the technocratic machine he or she critiques. Such performances also cast aside any utopian fantasies of dislodging the hegemony of technocratic instrumentalism. In this respect, skeptical human rights lawyers share certain intellectual and political affinities with certain strands in postmodern theory, and these bodies of theory command considerable interest among these skeptical lawyers. I am often asked about anthropology’s reflexive moment of self-critique. From my informants’ point of view, George Marcus, James Clifford, Clifford Geertz, and Donna Haraway are the most familiar and well-respected examples of the contributions of anthropology to the understanding of the current ethical situation. Engle’s argument that culture is a marker for what is not-law then nicely captures the appeal of culture for skeptics as a place of respite from the technocratic dimensions of law. In conversations with skeptical lawyers, I often hear the term culture used to mean something closer to the anthropological concept of ‘theory.’ (For example, a ‘cultural approach’ to law could mean a Foucauldian approach, a psychoanalytic approach, or, in fact, any approach that is not ‘empirical,’ instrumentalist, or already committed to a technocratic project.) The very marginality of culture – and of anthropology, as the discipline devoted to culture – to law is what gives culture its cache. The invocation of culture is a performance of lack of faith in instrumentalism, on par with the frivolity, spoofs, and posturing that frustrate some anthropologists who come into contact with these lawyers. But if it is possible to understand these skeptics’ turn to anthropology and to the concept of ‘culture’ as a kind of escape from instrumentalism, there are ways in which these skeptics nevertheless remain deeply instrumentalist in their own thinking. Although they do not wear their instrumentalism on their sleeve, it bubbles to the surface at key moments. I remember receiving a particularly strong rebuke at a NAIL conference, when I was a young anthropologist first presenting my own research on human rights institutions. The rebuke came from a prominent member of this group, a diplomat from a small Northern European nation. This person, a devotee of poststructuralist theory, had already published highly sophisticated semiotic analyses of international legal ideology and, hence, was knowledgeable in the bodies of theory I was deploying. But for his taste, my work went too far. He responded to my presentation with a resounding, highly agitated account of the necessity to act at the moment – something to the effect that at the moment ‘when two ships are about to collide in the night,’ the international lawyer

Anthropology, Human Rights and Legal Knowledge 31 __________________________________________________________________ must intervene. It was an account of the realness of crisis and the need to make a practical, instrumental decision. What was particularly confusing about this rebuke was the way it equated kinds of work anthropologists would want to differentiate. My critic saw poststructuralist theory, ‘navel gazing,’ and ethnography as all forms of leisurely nonaction, as opposed to professional, up-to-the-minute instrumental action. Most critical human rights lawyers I know are rarely so explicit, but on closer analysis many aspects of their practice are best understood in terms of the relation of means to ends. At a conference I attended several years ago, a young graduate student in law, new to the world of human rights skeptics asked, ‘What about justice? Why don’t we talk more about social justice concerns?’ The groans and snickers were audible as the speaker put on an expression of feigned seriousness and sympathy for the question. The speaker then calmly proceeded to take the question apart by challenging what ‘justice’ could mean in that particular context with a series of humorous but shocking anecdotes of ‘victims’ in one context becoming monstrous perpetrators of human rights violations in the next. The student later said she felt humiliated, patronized, and offended by the particular examples the speaker had chosen, which she felt were specifically chosen to provoke her. I never saw her at another such event. I think we can understand the experience of this student as an encounter with the very same instrumentalist technocratic legal knowledge practices these skeptics reject in other contexts – albeit presented in their own performances as a postmodern rejection of legal knowledge. The technocratic, instrumentalist conception of law treats law as a means not an end. The ends of law rather are defined in other spheres outside the law (politics, society, and economy). For example, a law might be a tool of social justice, economic efficiency, public morality, a ‘culture of life,’ or economic redistribution. The same legal argument could be used in a legal brief for the purpose of exposing racism or for harassing one’s former spouse in a divorce settlement. Those are the ends, and they are for politicians or clients to decide. Lawyers rather stick to the manipulation of the means. The technocratic lawyer, as wielder of the tools is a controlled, limited form of subjectivity, one that acts on behalf of, and yet yields to, someone or something beyond herself or himself as well as beyond the tools (the human rights victim, the human rights cause, and the ends). To be a professional lawyer, then, is to be agnostic about the ends and to be far more interested in the means.57 In other words, the student’s ‘error’ in asking ‘What about justice?’ was that she drew too much explicit attention to the ends. That these critical lawyers should experience that as an embarrassment, as a kind of taboo that demands a humorous but, 57

Riles, ‘Property as Legal Knowledge’, supra note 51.

Finnish Yearbook of International Law (Vol. XV, 2004) 32 __________________________________________________________________ nevertheless, sanctioning response, suggests the affinity between their own knowledge and that of the very technocrats they abhor. Even the para-academic quality of these skeptical human rights lawyers’ knowledge – the deployment of poststructuralist arguments, the appeals to modes of description that mirror ethnography – are always already a kind of instrument, a weapon to make a specific intervention in the activities of or debates about human rights institutions. David Kennedy, for example, tells his readers that his contribution is not new knowledge but, rather, the instrumentalization of old knowledge: ‘The negatives [of international humanitarian work] are discussed privately, often cynically, but rarely strategically’.58 Likewise, Engle’s critique of anthropologists’ attempt to mediate their commitment to human rights and to obtaining respect for cultural difference with the concept of a ‘right to culture’ is ultimately framed in terms of the difficulty of instrumentalizing such a concept as a technique of intervention: ‘Collective rights, along with the other mediating techniques, might provide new justifications for the AAA to act, but they don’t determine how it should act’.59 No wonder the work seems askew to many anthropologists – what looks like the misuse of the culture concept, for example, is in fact a solution to an entirely different problem, a means to an entirely different end. Engle’s ‘culture’ has little to do with anthropological definitions of culture (even though she understands herself to be writing about anthropologists’ use of the word culture). Rather, Engle’s culture concept takes its form from the legal work the term does in framing and channeling the larger (political) conversation about the human rights regime and its limits. From this point of view, it is beside the point to correct the lawyer’s inaccuracies. What Engle has done is not so much ‘demonize’ culture, as Merry60 suggests, as instrumentalize it. This of course is not Engle’s aim. On the contrary, she and other critical human rights lawyers seek to produce a kind of knowledge that sidesteps the technocratic instrumentalism of legal knowledge. And yet, an ethnographic account of these skeptical human rights lawyers must emphasize the ease with which a critique of legal tools is transmogrified into a tool of legal critique; the way an insight becomes an intervention in a legal debate. In other words, the ethnography of skeptical human rights knowledge draws attention to the propensity of the means–ends relationship to absorb everything into its own logic – essentially to make a tool out of anything and everything. The inexorable problem of my

Kennedy, The Dark Sides of Virtue, supra note 23, at xviii. Engle, ‘From Skepticism to Embrace’, supra note 1. 60 Merry, ‘Human Rights Law and the Demonization of Culture’, supra note 5. 58

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Anthropology, Human Rights and Legal Knowledge 33 __________________________________________________________________ informants is that a description of an instrument is itself already an instrument – an extension or use of the very instrument it describes.61

Circling Back I have argued that human rights lawyers’ invocations of anthropological concepts and methods of knowledge production are best understood as a kind of rebellion against the instrumentalism of legal knowledge – from within the framework of instrumentalism itself. In this context, culture – and the wider ironic and paraacademic knowledge practices that invoke culture – becomes a kind of performative position, an alternative to both legal instrumentalism and the critique of instrumentalism. But I have also shown how the performance of culture ultimately fails to produce a position ‘outside’ legal instrumentalism. ‘Culture’ here becomes the inside out62 of instrumentalism. Its form and content are already (negatively) dictated by the form of the legal instrument itself. What implications might this ethnographic insight have for the anthropology of human rights? In recent years, some anthropologists have positioned themselves and their knowledge as being of some use to human rights administrations; others have lamented the fact that anthropological knowledge is not adequately put to use within the human rights framework. One sometimes hears the suggestion that if only human rights lawyers understood the true nature of Muslim women’s experience of the veil, for example, or Melanesians’ concept of ‘ownership,’ they would make different rules. Often the concept of ‘culture’ becomes the shorthand for anthropologists’ potential contribution to human rights law. The material I have presented in this article helps to explain the considerable frustrations these anthropologists have encountered when they engage the human rights regime. This discussion of the knowledge practices of even the most 61 In An Anthropology of the Subject, Roy Wagner makes the following observation about what we might take as one archetypal instrument, the wheel. The wheel, in Wagner’s description, is ‘the image of the work it does, a technological “interpretation” of gravity whose very simplicity conceals the gravitic reinterpretation within its operation’. Roy Wagner, An Anthropology of the Subject: Holographic Worldview in New Guinea and Its Meaning and Significance for the World of Anthropology (University of California Press: Berkeley, 2001) at 19. Wagner demonstrates that all descriptions of a wheel ‘do not explain the wheel at all but are instead explained by it. An “explanation” that worked as well as the wheel did, underdetermined its own means with a like pragmatic acuity, could probably be used in its place. That would be a reinvention of the wheel.’ Wagner, at 192. It is impossible adequately to describe the wheel without reinventing the wheel in other words. The better the description, the more it becomes what it describes. The fuller and more adequate the ethnographic account of the instrument, the more it becomes an instrument, and becomes instrumentalized, itself. 62 Riles, The Network, supra note 12.

Finnish Yearbook of International Law (Vol. XV, 2004) 34 __________________________________________________________________ anthropologically sympathetic of human rights lawyers demonstrates the proclivity of legal knowledge, with its particularly instrumental character, to instrumentalize everything in its path. That is, in order to engage the human rights regime, anthropologists must position culture as something useful, something of instrumental value to the lawyer and his client, the human rights victim. As one critical lawyer put it to me recently with cruel irony, ‘We [human rights lawyers] want you [anthropologists] to give us some facts so we can build better tools’.63 The problem is that a thick description turned into a tool of problem solving is no longer the same thick description. Culture takes on the particular form of an instrument; it becomes its own relation of means to end. In this context, familiar words and categories – women, culture, the social group – now have an entirely different valence; they are instrumentalized. But as Mark Goodale points out in his Introduction to this ‘In Focus,’64 a second wave of anthropological engagements with human rights purposely rejects this kind of role. Some anthropologists now treat human rights regimes as a culture of its own – that is, they seek to describe it as a subject of study. In this article, I have been participating in this trend in a way by describing in turn the encounter between these anthropologists of human rights and an equally sophisticated group of human rights lawyers. As I have shown, what both sides share is their rejection of the earlier instrumental view of both law and anthropology. Indeed, for both these anthropologists and these lawyers, reaching out to one another becomes a kind of performance of their rejection of instrumentalism. Here, the affinities between skeptical lawyers and anthropologists of human rights deserve further attention. The difficulties these lawyers face in overcoming the instrumental character of legal knowledge perhaps has analogs in the difficulties experienced by their anthropological counterparts. First, just as human rights skeptics ultimately contend with their own proximity to legal instrumentalism, anthropologists of human rights institutions contend with the fact that the human rights regime differs in some ways from traditional ethnographic subjects. Specifically, its discursive proximity – the fact that human rights experts will read, react to, critique, and redeploy anthropological work in ways that are beyond the anthropologist’s control – exposes the work to instrumentalization by the very subjects of ethnography. Consider once more the dialogue between Engle and Merry, which I alluded to above. Recall that in response to Engle’s legal use of the culture concept, Merry extended that concept to law, arguing that international human rights law, too, has a culture. What interests me is the way the ‘culture’ concept itself becomes instrumentalized in Merry’s argument, as a tool to be yielded 63 64

Conversation with author, August 20, 2005. Goodale, ‘Introduction’, supra note 12.

Anthropology, Human Rights and Legal Knowledge 35 __________________________________________________________________ in her debate with Engle. This is so even though Merry’s own approach to human rights institutions is self-consciously descriptive and not instrumental. If skeptical human rights lawyers make clear the limitations of critique in the face of the instrumentalism of legal knowledge, I want to highlight the limits of description, including ethnographic description of the regime itself. That is, to present the human rights regime as another cultural object among others is already to make an intervention in a debate framed in terms of legal knowledge – to create an instrument, in other words. To put the point more generally, a conventional description of human rights is either a use of human rights knowledge against itself, or a use of oneself and one’s own knowledge in relationship to human rights knowledge. In my earlier work I have sidestepped this problem by focusing on pockets of noninstrumental practice within the legal field. For example, I have described aesthetic practices within human rights NGOs65 and documentary practices within international institutions .66 Yet I want to close by outlining tentatively the contours of another possible response. To do this, I need to reveal something further about the fieldwork that is the subject of this article. The conventional model of the fieldwork project goes something as follows: Anthropologists begin at home in the academy, with theoretical questions and problems. They go to the field to answer those questions, to solve those problems. In the course of the fieldwork encounter, however, they discover different questions and problems altogether; it is these new questions that are the ultimate effect or consequence of the ethnographic encounter. This model fails fully to capture my intimacy with this particular ethnographic subject. My own trajectory actually worked the logic of problems and solutions in reverse. I began ‘among the NAIL,’ we might say – that is, I was educated into human rights law in dialogue with some of the persons and projects described in this article. I framed my problems and questions there – to put it simply, these were problems about the limits of legal skepticism and questions about how to circumvent the hegemony of legal knowledge.67 I then came to anthropology as an anthropologist comes to the field – in search for solutions to those problems. Along the way, I discovered new – anthropological – problems. Fieldwork in the NAIL, then, is an act of circling back, of engaging intellectual and ethical origins from the point of view of problems that now begin elsewhere. In other words, fieldwork entails selfconsciously re-encountering the subjects of this article as a source of intellectual surprises and as points of engagement for anthropological problems. Riles, The Network, supra note 12. Riles, ‘Deadlines’, supra note 45. 67 Riles, The Network, supra note 12, preface. 65

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Finnish Yearbook of International Law (Vol. XV, 2004) 36 __________________________________________________________________ As an ethnographic project, ‘circling back’ poses a number of challenges. The first concerns my effort to engage old social relations in a new register. My friends read artifacts of my attempts to engage them as informants, such as earlier drafts of this article, with interest and appreciation. But they read them as exemplars of the kinds of knowledge practices I have described in this article – that is, as ironic performance (albeit with a very serious point). Although I have tried, at various points and in various ways to explain my aims, from my informants’ point of view, very little has changed in our relationships: They are aware that I ‘went away’ for a few years, became older, perhaps a little less engaged, but that happens to lots of people. More difficult still is the question of audience and constituencies for the ethnographic account. I am aware that this artifact fails as conventional ethnography. There are some obvious ways in which this is the case: I am unable to provide certain requisite elements of ethnographic description (such as accounts of social relations, history, and politics), because a description of this kind would possibly cause various kinds of harm to my friends, who seek precisely not to account for themselves in these terms. A mere attempt at ethnographic description, in other words, must contend with the unavailability of the aesthetic devices and analytical categories that make up the ethnographic convention. I have struggled with other problems of genre: My subjects would prefer a genre of account closer to their own knowledge practices – a lighter, even ironic telling of their story. But such an account would seem as inappropriate in an anthropology journal as these lawyers’ performances strike anthropologists as strange. In a more general sense, the starting premise of the ethnographic project seems absent: There is no immediately apparent lack of knowledge of the subject and no self-evident gap in the knowledge base for ethnography to fill. These ethnographic subjects are not unknown others but familiar fellow travelers whose practices remain nevertheless ethnographically inaccessible, uninteresting, and, at times, infuriating. But perhaps failure is the only possible response to the hegemony of instrumentalism.68 In order to see how circling back is neither a replication, nor an extension of the indigenous point of view, nor a position that claims to be ‘outside’ the subjects’ own knowledge practices, let me close by contrasting the temporality of circling back as ethnographic practice to the temporal orientation of legal knowledge.

68 Hirokazu Miyazaki, and Annelise Riles, ‘Failure as an Endpoint’ in A. Ong and S. Collier (eds.), Global Assemblages: Technology, Politics and Ethics as Anthropological Problems (Blackwell: Oxford, 2005) 320331.

Anthropology, Human Rights and Legal Knowledge 37 __________________________________________________________________ As I have argued elsewhere,69 human rights knowledge has what I call a ‘temporality of projects.’ What I mean is that it is understood by its practioners to occupy particular discrete segments of time, segments in which discrete projects are undertaken, and then to come to an end. At present, for example, human rights lawyers are debating strategies and approaches for holding occupying powers to certain human rights standards regarding torture. Torture under conditions of occupation is the problem of this moment, and the moment is defined by the problem. But at some point, it is expected that the problem will come to be replaced by other, more pressing problems and associated projects. This helps to make sense of the joke implicit in the ‘Fin de NAIL’ label – that is, the positioning of the NAIL as a project already finished, in the way legal projects routinely come to be finished. The temporality of circling back in contrast borrows from a conventional anthropological understanding of the way questions periodically return fresh or linger in the background to be picked up again. Although ethnography in the modality of circling back works the same ‘ground’ as legal knowledge (anthropological knowledge is already entirely commingled here with the ethnographic subject), circling back serves as a counterpart to the forward-looking but ultimately periodically limited temporality of human rights projects. Circling back does not produce new knowledge of a foreign object, new solutions, or even revisit old knowledge from a new perspective. Rather, in contrast to the forwardlooking temporality of projects, the ethnographer in the modality of circling back commits to standing in two temporal places at once – past and present – and hence to the pull of the past into the present. 70 In this article, I have shown how, because of the legal character of human rights, in which instrumentalism is the hegemonic knowledge form, ethnographic description (of human rights as culture) is already a legal instrument. I have shown, in other words, how under certain conditions, ethnographic description transmogrifies into its subject. The question then is what ethnography under such conditions might become. One of the emerging features of some current ethnographic work in human rights is an empathy for and responsiveness to human rights actors’ own efforts to guard against claims of ethical purity, and an effort to respond in kind, with an ethical commitment to hold back and to protect the ethnographic subject from attempts by the various constituencies for the ethnographic text to instrumentalize it in turn.71 My point has been that where Riles, ‘Deadlines’, supra note 45. Hirokazu Miyazaki, The Method of Hope: Anthropology, Philosophy, and Fijian Knowledge (Stanford University Press: Stanford, 2004). 71 Iris Jean-Klein and Annelise Riles ‘Introducing Discipline: Anthropology and Human Rights Administrations’, 28(2) Political and Legal Anthropology Review (forthcoming 2005) 173-202; Redfield, 69

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Finnish Yearbook of International Law (Vol. XV, 2004) 38 __________________________________________________________________ ethnographic description is already absorbed into the hegemonic form of its subject, this ethical commitment demands that ethnography become something other than description and cultural analysis. I intend this project of circling back as one attempt in this direction.

‘Doctors, Borders, and Life in Crisis’, supra note 43; AnnJanette Rosga, ‘Transparency and Accountability’, supra note 36; AnnJanette Rosga, ‘The Shalom Babies’, supra note 36.

Human Rights: A Stumbling Block for the Anthropologist or How Should We Deal with Culture?* Reetta Toivanen**

Universality of human rights presupposes some sort of a universal notion of humanity. A universal concept of humanity in turn presupposes some shared understanding of the notions of justice and equity in order to have a general basis for the rights human beings have. Social anthropology has from earliest stages of the discipline tried to understand individuals in terms of their own distinct cultures. One could say that anthropology has celebrated the differences in the values and traditions of divergent groups of people classified as separate cultural groups.1 Thus, human rights seem to pose fundamental problems of both theory and practice for anthropology as a discipline, as Terence Turner summarises.2 This paper examines the role of social anthropological and ethnographic studies in the field of human rights and human rights law. Since the beginning of the discipline of anthropology (ethnology)3, a vast amount of * I have written this paper as an introduction for students and scholars of legal studies who wonder what anthropologists are doing when they study human rights law. A historical basis is necessary for the reader to understand that there is nothing new in this interest. At the same time the essay may be of some interest for anthropologists because it pays tribute to Franz Boas, often stamped as a cultural relativist, as one of the first anthropologists who took the universalist position seriously. ** Senior Researcher, Department for Social Anthropology/ European Ethnology, Humboldt University Berlin. 1 For classical accounts see Adamson E. Hoebel, The Law of Primitive Man (Harvard University Press: Cambridge, MA, 1954); Karl Llewellyn and Adamson E. Hoebel, The Cheyenne Way (University of Oklahoma Press: Norman, 1941). 2 Terence Turner ‘Human Rights, Human Difference: Anthropology’s Contribution to an Emancipatory Cultural Politics’, 53 Journal of Anthropological Research (1997), 2nd ed. 2005, 273-292 at 273. 3 I am using here concepts such as social anthropology, anthropology and ethnology as synonyms. The discipline has its variations reflecting the countries’ traditions were they are used. In Germany and in countries influenced by the German tradition (esp. Central Eastern European states) the

Finnish Yearbook of International Law (Vol. XV, 2004) 40 _______________________________________________________________ anthropological researchers have studied the social circumstances in which law and legislation is created, negotiated and argued.4 Anthropologists have also collected valuable empirical material on the effectiveness and consequences of laws and litigation and they have witnessed the sometimes odd side-effects and unwanted consequences of law(s). This research has, however, remained at the periphery of the knowledge of many lawyers and judges. One of the reasons is certainly a suspiciousness of both lawyers towards anthropology and vice versa. This paper begins with a description of the beginnings of the discipline of ethnology / anthropology in the last years of the 19th century and first decades of the 20th century. This was the time when Franz Boas, influenced by such liberals as Bastian and Virchow, immigrated, not least due to anti-Jewish atmosphere in Germany, to the United States of America (USA) and took with him the German universalist position adhered by Herder and Hegel. It is well documented that universal human rights have caused severe challenges to anthropology. 5 However, it seems interesting to recognise that since the beginning of the discipline, there have been strong proponents of universal human rights, and especially among those who are often accused of being cultural relativists. It shall be explained how this cultural relativism, which calls for the understanding of diverse cultural contexts and advocates against the misunderstanding of universalism as some kind of fundamentalist absolutism, can in an important way contribute to human rights research. This kind of anthropological human rights research uses concrete fieldwork to show in detail the multifarious (negative and positive) political implications of intergovernmental, governmental, non-governmental and private actions. 6 In the first part of this paper the following question will be posed: ‘How did Franz Boas become to be known as the leading cultural relativist?’ The second part addresses the fact that later, in 1947, students of Boas prepared a statement to the UN Commission on Human Rights criticizing the proposed Universal Declaration of Human Rights (UDHR). The critique was concept of ethnology is more common, the study of ethnic groups. Anthropology and social anthropology are used in countries strongly influenced by Anglo-Saxon tradition (e.g. Finland). Social anthropology is interested in human beings as producers and products of the social environment. 4 See, e.g., the two edited books by people around Sussex University, United Kingdom: Richard A. Wilson (ed.), Human Rights, Culture and Context: Anthropological Perspectives (Pluto Press: London, 1997) and Jane Cowan, Marie-Bénédicte Dembour and Richard A. Wilson (eds), Culture and Rights: Anthropological Perspectives (Cambridge University Press, 2001). 5 See, e.g., the special issue dedicated on universalism vs. cultural relativism in 53 Journal of Anthropological Research (1997), 2nd ed. 2005. 6 See here Sally Falk Moore, ‘Certainties Undone: Fifty Turbulent Years of Legal Anthropology, 1949-1999’, 7 The Journal of the Royal Anthropological Institute (2001) 95-116 at 110.

Human Rights: A Stumbling Block for the Anthropologist? 41 _______________________________________________________________ basically warning that Western cultural values should not be imposed on other cultures. It will be argued that this event was not a surprising turn to cultural relativism within American anthropology. Rather, it represents a deep commitment of anti-colonialist and anti-racist researchers to equality between cultures, and here one cannot overestimate Boas’ personal influence. From then on, anthropologists have carried the stamp of being cultural relativists, often understood as cultural nihilism. To me it seems, however, that human rights as such are not at the core of the reluctance of anthropologists to develop theory and methods in order to investigate human rights law. It is much more the concept of culture and how it is used by lawyers and politicians that troubles the anthropologists. The third part begins with an introduction of three prototypical ways in which the relationship between culture and rights and law is deployed by anthropologists. It will be shown that the meaning given to such concepts as culture and rights has changed dramatically during the past 50 years. Still, the main difficulty has remained the same: anthropologists are suspicious of universal rights because ‘universal’ is often defined by those who have the economic and political power to decide what universalism means. In other words, anthropology most often takes sides with the less powerful and asks how and in which ways the diversity of people around the globe could be included in the definition of universality. The last part of this paper addresses the role of anthropology in the field of legal studies and stresses the point that anthropological research can be crucial to avoid both ‘culturalist’ and ‘natural law’ fallacies, both common among lawyers.

Early Days of Anthropology: How Franz Boas Became the Leading Cultural Relativist During the early days of colonialism, anthropologists were often considered to be the best interpreters of local values and cultures and providers of important guidance for law-makers. In order to understand that social anthropology has, since the end of the 19th century, had a commitment to the idea of universal humanity and thus to the need to guarantee the same rights for every distinct people, it seems important to say a few words about the beginning of the discipline. Franz Boas is often mentioned as the father of modern anthropology.7 7 In 1994, the president of the American Anthropologist Association, Johnetta B. Cole similarly to this paper traced the long tradition of concern among anthropologist with human rights back to (the person of) Franz Boas. See Johnetta B. Cole, ‘Human Rights and the Rights of

Finnish Yearbook of International Law (Vol. XV, 2004) 42 _______________________________________________________________ His approach can illustrate how the understanding of the universality of human rights is actually at the very core of the discipline. Franz Boas was born in 1858 in Minden, Westphalia, which was a province of Prussia. He grew up in a middleclass Jewish environment. Already in his adolescence, he was fascinated by natural sciences and cosmology and, in particular, by the voyages of Alexander von Humboldt.8 During his university years, he was often forced to assume the role of a Jew in an anti-Semitist environment even though it was important for him to be a member of mainstream society as well.9 According to Julia E. Liss, this made him ‘increasingly impatient with prejudice, especially that deriving from generalisations about racial or physical characteristics.’10 In 1882, Boas went to Berlin and was introduced to Rudolf Virchow and Adolf Bastian,11 who both came to support Boas’ interest in preparing a study on Inuit in Baffinland. These researchers reaffirmed Boas’ commitment to German scientific heritage and universalistic values.12 Virchow, who was the leading figure of German physical anthropology until his death in 1902, was in multifarious ways influenced by Herderian and Humboldtian liberal universalist humanism, especially by its anti-racist tone. Herder’s approach celebrated a common bond of humanity, composed of diversity rather than of similarity of human forms – from this perspective each cultural entity had the same ability to contribute to humanity at large. According to Matti Bunzl, Wilhelm von Humboldt was deeply impressed by this criticism of the universal reason fashioned by the French Enlightenment when he developed his inductive method based on empirical observation rather than Kantian abstract speculation. Similarly his brother, Alexander von Humboldt, attempted a

Anthropologists’, 97 (3) American Anthropologist (1994) 445-448. In many other writings this title is given to Bronislaw Malinowski who in the 1920s urged his students for an ethnographic study of law. See the overview in William Nixon, ‘Legal Anthropology’, <www.indiana.edu/~wanthro/ legal.htm> (visited 30 August 2001). 8 Julia E. Liss, ‘German Culture and German Science in the Bildung of Franz Boas’ in George W. Stocking Jr. (ed.), Volksgeist as Method and Ethic: Essays on Boasian Ethnography and the German Anthropological Tradition, History of Anthropology Series, vol. 8 (University of Wisconsin Press: Madison, 1996) 155-184 at 159. 9 Ibid. 10 Ibid. at 169. 11 It is worth of mentioning that Bastian and Virchow were – like most German anthropologists of that time – physicians by training and anthropology was studied as a sub-discipline of medicine. See Robert Proctor, ‘From Anthropologie to Rassenkunde in the German Anthropological Tradition’ in George W. Stocking Jr. (ed.), Bones, Bodies, Behavior: Essays on Biological Anthropology (University of Wisconsin Press: Madison, 1988) 138-79 at 141. 12 Liss, ‘German Culture’, supra note 8, at 179.

Human Rights: A Stumbling Block for the Anthropologist? 43 _______________________________________________________________ comprehensive description that was to be ‘achieved by induction based on data at hand.’13 Bastian was the director of the Ethnological Museum of Berlin, and in a Humboldtian tradition, he used the particular to understand the universal. This often meant that the museum displayed large collections showing the variety of cultural traditions of mankind with a commitment to cultural pluralism.14 Unfortunately followers of Virchow’s anti-racist approach and Bastian’s humanist project began to shift the study to the study of human differences solely for their own sake. As H. Glenn Penny stresses, the nationalism that was gathering strength in Germany at that time, subjugated scientific research to its service.15 When Boas, committed to his humanist universalist position, immigrated to the US at the end of 1890’s, he had high hopes of finding an academia without anti-Semitist resentments. 16 However, anthropology in the new continent was dominated by evolutionary thinking.17 Here Boas became commonly known as a ‘historical particularist’. His particularism followed the tradition of Virchow and Bastian (and thus of Herder and the Humboldt brothers) and emphasised the integrated way of life distinctive of a people. According to his thinking, different people had their own specific life styles and value systems, but all these ‘cultures’ even though clearly different were equally important. As a philosophy, particularism differed from evolutionism, diffusionism, and geographical determinism, which were popular at the time. Influenced both by the German Romantic tradition and by a liberal egalitarian view, the problem facing Boas, as historian George Stocking observes, was how to define the Romantic notion of ‘the genius of the people’ in terms other than racial heredity.18 His answer, ultimately, was the anthropological concept of culture.19 Boas’ egalitarianism was characterised by a belief in a humanity that Alexander von Humboldt, Cosmos (New York, 1845) at 49-50, cited by Matti Bunzl, ‘Franz Boas and the Humboldtian Tradition: From Volksgeist and Nationalcharakter to an Anthropological Concept of Culture’ in George Stocking (ed.) Volksgeist as Method and Ethic (University of Wisconsin Press: Madison, 1996) 17-78 at 39. 14 H. Glenn Penny, ‘Bastian’s Museum: On the Limits of Empiricism and the Transformation of German Ethnology’ in H. Glenn Penny and Matti Bunzl (eds.), Worldly Provincialism: German Anthropology in the Age of Empire (University of Michigan Press: Ann Arbor, 2003) 86-126. 15 Ibid., at 31. 16 On growing anti-Semitism among German academia see Proctor, ‘From Anthropologie to Rassenkunde’, supra note 11. 17 See Bunzl, ‘Franz Boas’, supra note 13, at 56. 18 George W. Jr. Stocking, Race, Culture and Evolution: Essays in the History of Anthropology (University of Chicago Press, 2nd edition, 1982) at 214. 19 Bunzl, ‘Franz Boas’, supra note 13. 13

Finnish Yearbook of International Law (Vol. XV, 2004) 44 _______________________________________________________________ was equal, not because differences could be overcome, but because every difference was equally valid. This approach treats differences and inequalities between individuals and peoples not as differences between different ‘cultures’, but as products of contemporary power constellations, unequal at their roots. 20 For Boas, thus, equality did not mean the acceptance of the actual inequalities of society, but rather regarding these inequalities as different manifestations of a common humanity.21 For Boas, people were of the same worth wherever they were born. They were certainly different but also changing – even their respective phenotypes change due to environmental and societal changes. One benchmark study by Franz Boas shows how the form of the scull of Italians changed just in one generation’s time due to a new diet in the new home country. 22 He concluded that [t]he old idea of absolute stability of human types must, however, evidently be given up, and with it the belief of the hereditary superiority of certain types over others.23

Boas showed hard empirical data to prove that nothing such as race or racial phenotype existed that would remain unchanged over the course of time. In his writing, one can sense the deeply antiracist sentiment of a scholar teaching in an environment predominated by adherents of evolutionary theories.24 In his understanding of culture, people were still very much the carriers of the cultural package – but also able to move in new directions and capable of change. It was a harsh critique of evolutionary theory. This relativism was further developed by Boas’ students, such as Ruth Benedict, Margaret Mead, Melville J. Herskovits

20 Franz Boas, ‘The Limitations of the Comparative Method of Anthropology’, 4 Science (1896) 901908. 21 Kenan Malik, ‘Race, Pluralism and the Meaning of Difference’, 33 New Formations (1998) 2. Available at (visited 7 May 2005). 22 Franz Boas, The Mind of Primitive Man (Macmillan: New York, 1911); Franz Boas, ‘The Instability of Human Types’ in Gustav Spiller (ed.), Papers on Interracial problems Communicated to the First Universal Races Congress (Gin & Co: Boston, 1912) 99-103.

Boas, ‘The Instability’, ibid. at 103. Herbert S. Lewis, ‘Boas, Darwin, Science, and Anthropology’, 42 Current Anthropology (2001) 381406. It is interesting that Bronislaw Malinowski, the father of ethnographic methods such as fieldwork in the United Kingdom (Britain) was in the same manner criticised by the representatives of the then prevalent theory. See Bronislaw Malinowski, Crime and Custom in Savage Society (Routledge & Kegan Paul: London, 1926). 23

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Human Rights: A Stumbling Block for the Anthropologist? 45 _______________________________________________________________ and A.L. Kroeber.25 The ‘boasians’ tried on the one hand to understand each individual in her or his own context, inter alia, in her or his own culture. On the other hand, they were committed to an understanding that all peoples in all cultures have the same worth simply because they are human. Melville J. Herskovits defined that [t]he very core of cultural relativism is the social discipline that comes of respect for differences – of mutual respect. Emphasis on the worth of many ways of life, not one, is an affirmation of the values in each culture. Such emphasis seeks to understand and to harmonise goals, not to judge and destroy those that do not dovetail with our own.26

Anthropological Critique of the Universal Declaration of Human Rights Without going here in depth, it needs to be mentioned that with the emerging of neo-Darwinism among American anthropologists in the 1940’s, Boas’ reputation as a historical relativist began to be seriously questioned by such researchers as Leslie A. White and Marvin Harries, who argued that ‘those who opposed Darwin did not labour for, or make contributions to science’. 27 The boasians’ answer to neo-Darwinism was a call for tolerance and it seemed that tolerance was understood by the neo-Darwinists of that time as the opposite of absolutism, not of universalism. Melville J. Herskovits describes the difference between absolutism and universalism in the following way: Absolutes are fixed and, as far as convention is concerned, are not admitted to have variation, to differ from culture to culture, from epoch to epoch. Universals, on the other hand, are those least common denominators to be

25 See Wolfgang Rudolph, Der Kulturelle Relativismus – Kritische Analyse einer Grundsatzfragen-Diskussion in der amerikanischen Ethonologie (Duncker & Humblot: Berlin, 1968). 26 Melville J. Herskovits, ‘Cultural Relativism and Cultural Values’ in Frances Herskovits (ed.), Cultural Relativism – Perspectives in Cultural Pluralism (Random House: New York, 1973) 11-34 at 11. 27 Leslie A. White, ‘Morgan’s Attitude Toward Religion and Science’, 46 American Anthropologist (1944) 218-230 at 219, cited in Lewis, ‘Boas, Darwin’, supra note 24, at 384. Adam Kuper, among others, has argued that Boas understood Darwin better than his critiques. Both Boas and Darwin opposed Herbert Spencer’s teleological evolutionism. See Adam Kuper, Among the Anthropologists: History and Context in Anthropology (The Athlone Press: London, 1999). See also Franz Boas, ‘The Relation of Darwin to Anthropology’, unpublished notes; Boas papers (B/B61.5) American Philosophical Society, <www.journals.uchicago.edu/CA/journal/issues/v42n3/013002/Boas. html> (visited 9 March 2002).

Finnish Yearbook of International Law (Vol. XV, 2004) 46 _______________________________________________________________ extracted from a range of variation that all phenomena of the natural or cultural word manifest.28

In his effort to save the good ideas of the relativists’ fraction of anthropologists, Clifford Geertz underlines in his infamous contribution on ‘Anti AntiRelativism’ of 1984 that ‘[i]t has not been anthropological theory, such as it is, that has made our field seem to be a massive argument against absolutism in thought, morals, and esthetic [sic] judgement; it has been anthropological data: customs, crania, living floors, and lexicons’.29 However, in the parlance of the mainstream (neo-Darwinist) anthropology, the relativist position was interpreted as one of nihilism.30 The students of Boas raised the argument of tolerance during the drafting process of the UDHR. But they also slightly, nonetheless with great impact, shifted the weight of the message.31 In 1947, UNESCO32 had sent the Draft Declaration to a number of people and organisations for comments.33 The American Anthropologist Association (AAA) was one of the NGOs which submitted in 1947 an anonymously drafted 34 reaction to the UNESCO committee. This statement asks in a critical tone: ‘how can the proposed declaration be applicable to all human beings and not be a statement of rights conceived only in terms of the values prevalent in the countries of Western Europe and America?’.35 It clearly expressed the uneasiness of the AAA with the concept of universalism in the Draft. The statement asked questions such as how we can expect that people have the same needs and wishes independent of the culture in which they feel at home? Can people representing the West and the winners of World War II be trusted in conceptualising the rights of every single Herskovits, Cultural relativism and cultural values, supra note 26, at 31-32. Clifford Geertz, ‘Distinguished Lecture: Anti Anti-Relativism’, 86 American Anthropologist (1984) 263-278 at 264. 30 Geertz lists further attributes which are often associated by anti-relativists with cultural relativism: subjectivism, incoherence, Machiavellinism, ethical idiocy and aesthetic blindness. See Geertz, ‘Anti Anti-Relativism’, supra note 29, at 263. See also Alison Dundes Renteln, ‘Relativism and the Search for Human Rights’, 90 American Anthropologist (1988) 56-72 at 58. 31 As argued, e.g., by Renteln, ‘Relativism and the Search for Human Rights’, supra note 30. 32 United Nations Educational, Scientific and Cultural Organization. 33 Karen Engle, ‘From Scepticism to Embrace: Human Rights and the American Anthropological Association from 1947-1999’, 23 Human Rights Quarterly (2001) 536-559 at 537. 34 Even though the statement is anonymous, the name of Melville Herskowitz, a student of Ruth Benedict who was influenced by Franz Boas’ egalitarian thinking, is considered to be the author. See, e.g, Renteln, ‘Relativism’, supra note 30, at 67. 35 Executive Board, American Anthropological Association, ‘Statement on Human Rights’, 49 American Anthropologist (1947) 539-543. 28

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Human Rights: A Stumbling Block for the Anthropologist? 47 _______________________________________________________________ person without asking all persons to become more like the Western people are? The last sentence of the statement says: only when a statement of the rights of men to live in terms of their own traditions is incorporated into the proposed Declaration, then, can the next step of defining the rights and duties of human groups as regard each other be set upon the firm foundation of the present-day scientific knowledge of Man.36

Anthropology has had a considerable challenge with human rights as they were formulated after the Second World War. Some authors have later, misleadingly, interpreted this statement as a statement against the declaration. For example, Julian H. Steward commented that the statement had been a moral and not a scientific one, and as ‘a scientific organization, the [American Anthropological] Association has no business dealing with the rights of man’.37 In the same comment, he questioned the concept of tolerance and asked whether the tolerance of the Statement would also be used to approve the caste system of India or racial segregation of the United States. As Sally Engle Merry points out, it seemed to be another kind of concept of tolerance when the focus was on the ‘primitive’ societies of that time and another kind in respect of modern states: ‘no one advocated tolerance towards Nazi Germany’.38 However, it seems essential to stress that to be critical is not the same as to reject. At the same time, one should be aware that the use of such concepts as culture and rights clearly reflect the understanding of that time. The statement is still valuable today as an example of an effort by some scholars to pay more attention to the sources of rights that are never of neutral origin and that are in many ways influential to the ways in which we understand ourselves. In the 1940’s, as today, the discussion over universalism and relativism is premised on a particular understanding of the relationship between culture and rights and what is meant with these concepts. The publication of the AAA statement on human rights can certainly be defined as the birth moment of the scepticism of anthropology as a discipline towards human rights and human rights law. At the same time, this statement divided the anthropological scholarship into those who subscribed to the statement and into those who felt embarrassed by it. 39 Karen Engle, professor of Ibid. at 543. Julian H. Steward, ‘Comments on the Statement on Human Rights’, 50 (2) American Anthroplogist (1948) 351-352. See also Engle, ‘From Skepticism to Embrace’, supra note 33. 38 Sally Engle Merry, ‘Changing Rights, Changing Culture’ in Cowan, Dembour and Wilson (eds.), Culture and Rights, supra note 4, 31-55, at 34. 39 See Engle, ‘From Scepticism to Embrace’, supra note 33, at 542-543 and Renteln, ‘Relativism’, supra note 30. 36 37

Finnish Yearbook of International Law (Vol. XV, 2004) 48 _______________________________________________________________ Law at the University of Texas at Austin, states that pro-rights anthropologists, meaning the persons who considered themselves human rights advocates, felt ashamed because in their understanding, their professional representative (AAA) had virtually rejected the universal declaration of human rights.40 This dispute has shadowed the development of anthropological theory and methodology in the area of human rights research and interestingly, even though being a dispute in the American context, the shadow has extended to the European context as well.

Prototypical Relationships: Anthropology of Law and the Discourse of Rights In order to explore the difficulties faced by anthropologists dealing with human rights, it is interesting to look at the ways, in which anthropologists have deployed the relationship between culture and rights on the one hand, and culture and law on the other.

Law and Culture In her article on the fifty past years of legal anthropology, Sally Falk Moore concludes that one typical approach to law among legal anthropologists has viewed law itself as a culture.41 This approach suggests that law is traditiondriven and as such an expression of basic cultural premises. In this view, culture is everything. Law is (from this perspective) a part of the holistic package of culture. These researchers study customary law and local legal practices and compare them with post-colonial – from outside imposed – legal systems.42 Clifford Geertz, one of the prominent representatives of this approach, is interested in law as a species of social imagination. For him, comparative law offers an opportunity to understand cultural difference which is for him the central purpose of anthropological work.43 Anthropologists who have adopted Karen Engle is one of the few lawyers who have studied the anthropological scholarship in the field of human rights from a legal angle. Engle emphasises that the same embarrassment was felt by the pro-rights anthropologist of the 40s who considered themselves ‘scientists’. See Engle, ‘From Scepticism to Embrace’, supra note 33, at 542. 41 Moore, ‘Certainties Undone’, supra note 6. 42 Franz Benda-Beckmann and Keebet Benda-Beckmann, ‘Property, Politics and Conflict: Ambon and Minangkabau compared’, 28 Law and Society Review (1994) 589-607. 43 Clifford Geertz, Local Knowledge: Further Essays in Interpretative Anthropology (Basic Books: New York, 1983). 40

Human Rights: A Stumbling Block for the Anthropologist? 49 _______________________________________________________________ this approach have seldom addressed human rights law. The other common approach to law has been that law represents a mask for elite interests. In this approach law is a mode of domination, a servant of elites’ interests. This approach, based on a Marxisant style of argumentation, has been further developed, especially by the Critical Legal Studies Movement.44 The third explanation of how and why law acquires a particular form in a particular social context is a functional one: law is seen as the problem-solver. 45 Law is seen as a rational response to social problems. This approach is, as Sally Falk Moore also notes, more common among lawyers than anthropologists, but the approach resurfaces in many anthropological writings too, often implicitly.

Rights and Culture The relationship between rights and culture has been of particularly strong interest among anthropologists.46 There exists a vast amount of anthropological literature that in various ways discusses society’s relation to law, culture and rights and that sees law’s substance as a reflection of individual and social life in given society.47 The interest of the first legal anthropologists was with societies that where considered ‘primitive’ and ‘simple’. The evident gain from these classical works was to carefully describe how even the simplest societies had laws and rules.48 The bottom-line was that human species is universally, in a Weberian

44 See e.g. Peter Fitzpatrick and Alan Hunt (eds.), Critical Legal Studies (Basil Blackwell: Oxford, 1989); David Theo Goldberg, Michael Musheno and Lisa C. Bower (eds), Between Law and Culture – Relocating Legal Studies (Minnesota University Press: Minneapolis, 2001); Pierre Bourdieu, ‘The Force of Law: Toward a Sociology of the Judicial Field’, 38 Hasting Law Journal (1987) 814-853. 45 Moore, ‘Certainties Undone’ , supra note 6, at 97. 46 I am here relying on a number of writings: Jane Cowan, Marie-Benedicte Dembour and Richard A. Wilson, ‘Introduction’ in Cowan, Dembour and Wilson (eds.), Culture and Rights, supra note 4, 126; Marie-Bénédicte Dembour, ‘Following the Movement of a Pendulum: Between Universalism and Relativism’ in Cowan, Dembour and Wilson (eds.), Culture and Rights, supra note 4, 56-79; Sally Engle Merry, ‘Changing Rights’, supra note 38, 31-55; Sally Falk Moore, Law as Process (Routledge & Kegan Paul: London, 1978). 47 See, e.g., Laura Nader (ed.), Law in Culture and Society (University of California Press: Berkeley, 1997, first edition 1969); Moore & Paul, Law as Process, supra note 46; Wilson (ed.), Human Rights, supra note 4; Cowan, Dembour and Wilson (eds.), Culture and Rights, supra note 4. 48 See, e.g, Adamson E. Hoebel, The Law of Primitive Man (Harvard University Press: Cambridge, MA, 1954); Karl Llewellyn and Adamson E. Hoebel, The Cheyenne Way (University of Oklahoma Press: Norman, 1941); Adamson E. Hoebel, ‘Keresan Pueblo Law’ in Nader (ed.), Law in Culture, supra note 46, 92-116; Max Gluckman, ‘The Technical Vocabulary of Barontse Jurisprudence’, 61 American Anthropologist (1959) 743-759; Max Gluckman, Order and Rebellion in Tribal Africa (Cohen and West: London, 1963).

Finnish Yearbook of International Law (Vol. XV, 2004) 50 _______________________________________________________________ sense, reasonable and as such a rule and law-producing species.49 The colonial and post-colonial changes in many African regions are carefully documented, as well as the intermingling of Native American customary law and state laws of the United States.50 These studies document how the motivation behind legislation and rule-producing is always inseparably inter-linked with power relations in given society. Recent studies in this field pay attention to the complexities of modern societies and institutions. In Richard A. Wilson’s words, they explore ‘how rights-based normative discourses are produced, translated and materialised in a variety of contexts’.51 Prototype No. 1: Rights v. Culture The first prototypical understanding of the relationship between rights and culture can be called – emphasising the dichotomy between the concepts – rights versus culture. This approach stresses the contradictory nature of the concepts. In this context, anthropologists have stressed the importance of respecting the legal culture of every human community, and warned against imposing Western law on other cultures; this applied especially in the context of decolonization. This approach, which sees rights as universal, equal for all on one side and culture as local, particular and relative on the other, has more or less lost its significance in the academic discourse, but is still present in the work of many NGOs. This approach is also commonly brought into play by representatives of minority groups and indigenous peoples. The stark opposition between human rights and culture employs both concepts in an essentialised and non-historical fashion. Recognising the extent to which both are fluid, contested, and changing, can only remake this opposition.52 Marie-Bénédicte Dembour, Lawyer at the University of Sussex, has argued that any trouble-free opposition between culture and rights misunderstands the nature of both.53 Rights should, in my view, be understood as a cultural phenomenon; developing and changing over time in response to a variety of 49 Max Gluckman, ‘Concepts in the Comparative Study of Tribal Law’ in Nader (ed.), Law in Culture, supra note 46, at 349-373. See also other aspects of the debate in Nader (ed.), Law in Culture, supra note 46. 50 For a famous account which documented, with empirical methods, a court room process in which a group of Mashpee people tried to verify the authenticity of their identity, see James Clifford, The Predicament of Culture between Twentieth-Century Ethnography, Literature and Art (Harvard University Press: Cambridge, 1988) at 276-346. 51 Richard A. Wilson, ‘Rights, Culture and Context: An Introduction’ in Wilson (ed.), Human Rights, supra note 4, 1-27, at 13. 52 Merry, ‘Changing Rights’, supra note 38, at 35. 53 Dembour, ‘Following the Movement’, supra note 46.

Human Rights: A Stumbling Block for the Anthropologist? 51 _______________________________________________________________ social, economic, political or cultural influences. At the same time, and this is an important note, one ought not to assume that cultural difference has been eradicated in the globalised world. Many minorities still pay a high price for the short-cut method of numerous nation states’ that perceives all cultures as equal, which in the end effectively means that all cultures are the same. There are some basic problems in the whole legal discourse, especially in Western positive law and Islamic law because in both a universal status is claimed for legal rules by legal officials.54 As it is grounded usually in a positivist view of truth, law essentialises social categories and identities. The main principles of positive law and legal positivism distort reality and cut out ambiguities. Positive law views law as a neutral tool, and in legal positivism law is seen as given, made up of data – or rules – that can be recognised and analysed according to certain observational tests. Contrasting culture and rights, or universalist and relativists positions, is an intellectual cul-de-sac. It is more productive to look at these questions and issues as inherent tensions, as complementary phenomena that always need to be assessed and understood in the specific context where the tension is experienced. As described above, there is no need to give up universalism when taking the relativist critique seriously. Prototype No. 2: Right to Culture In the second way of looking at the relationship between rights and culture, the focus is on the formulation ‘the right to culture’. The language of the 1948 Universal Declaration of Human Rights was adopted for political and emancipation purposes; every person has a right to culture. In this setting, culture is conceived as being an object of rights claims. The typical phrase used is that people have the right to enjoy the culture to which they belong. In the formulations found in international human rights instruments, 55 cultural features are seen as intrinsically valuable and worthy of recognition and legal protection.

Moore & Paul, Law as Process, supra note 46. International Covenant on Civil and Political Rights, concluded 16 December 1966, 999 United Nations Treaty Series 171; International Covenant on Economic, Social and Cultural Rights, concluded 16 December 1966, 993 United Nations Treaty Series 3; International Convention on the Elimination of All Forms of Racial Discrimination, concluded 21 December 1965, 660 United Nations Treaty Series 195; Declaration on the Rights of Persons Belonging to National or Ethnic Minorities, UN General Assembly Resolution 47/135 of 18 December 1992; ILO Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries, concluded 27 June 1989, 28 International Legal Materials 1382 (1989); Framework Convention for the Protection of National Minorities, concluded 1 February 1995, European Treaty Series No. 157; European Charter for Regional or Minority Languages, concluded 5 November 1992, European Treaty Series No. 147; European Social Charter (revised), concluded 3 May 1996, European Treaty Series No. 163. 54

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Finnish Yearbook of International Law (Vol. XV, 2004) 52 _______________________________________________________________ Consequently, culturalist claims, by invoking notions of culture, tradition, language, religion, ethnicity, locality, tribe or race – have become a familiar rhetorical element in contemporary rights processes. 56 The culturalist claims are used more and more to ground and justify all kinds of demands, they vary from land claims to educational claims and from claims for employment to claims for independence. These demands may also be invoked to argue for exemptions from legal obligations that bind other citizens.57 It would, however, be foolish to believe that culturalist claims are always used to protect weaker groups in society. Culture-based arguments are not solely some kind of language of resistance or the language of good people, as is sometimes assumed. Many states use culture-based rights talk to legitimise reactionary policies, which, in practise in many cases, means violation of women’s rights. On the other hand, many states have marginalised and still marginalise their minorities by replacing ‘heavy-weight’ rights such as the right to land or political rights with rights to ‘culture’, meaning state controlled traditions. Also, minority movements may have a clear anti-progressive character – sometimes the culturalist claims are just slightly sophisticated versions of ethnonationalist claims. In addition, many minorities have to use ‘rights talk’ strategically in order to get their claims heard. Thus, the right to culture includes a mechanism in which certain formulations, or perhaps better, some understandings of culture and rights create the only possible way to access a right to culture. Very much in the same manner as in the ‘positioning’ of culture against rights, culture is here understood as a unified arrangement of practices and meanings. It is a ‘thing’ we are entitled to ‘have’ and ‘enjoy’. Its role in constituting a people, in constituting visions and formulas on how people are and will be, is completely ignored. Anthropologists have had a great impact in helping marginalised peoples and people ignored by their governments to establish claims of cultural distinctiveness. This is still one of the major fields of anthropologists interested in law.58 Karen Engle writes that the main source of this ‘rights assistance’ is that human rights law and discourse provide promising vehicles for promoting Cowan, Dembour and Wilson, ‘Introduction’, supra note 46, at 9. See also Jane K Cowan, ‘Ambiguities of an Emancipatory Discourse: The Making of a Macedonian Minority in Greece’ in Cowan, Dembour and Wilson (eds.), Culture and Rights, supra note 4, 152-176 at 153-154; Reetta Toivanen, ‘Minority Rights and Minority Identities’, XXXVII Yearbook of Population Research in Finland (2001) at 83-102. 57 Such as in the case of Sikh men in the United Kingdom who do not have to use motorcycle helmets. 58 A classical study was conducted by Eugeen Roosens with Huron Indians in the late 1960’s. See E. Roosens, Creating Ethnicity (Sage Publications: London, 1989). 56

Human Rights: A Stumbling Block for the Anthropologist? 53 _______________________________________________________________ indigenous peoples’ rights; a goal, she argues, that anthropologists have long pursued.59 Anthropologists have been blamed for contributing to the reification of essentialist understanding of groups or group boundaries. By treating groups as natural and intrinsic entities, the researchers may ‘contribute to producing what they apparently describe or designate’.60 Other anthropologists have rather tried to analytically understand how the right to a certain culture is established by certain groups of peoples.61 This field has been and still is the most popular research setting of anthropologists. Prototype No. 3: Rights as Culture The third formulation is rights as culture. The underlying idea is that rights as such constitute something culture-like. Rights when understood as rights talk, rights thinking, rights practices - entail certain constructions of self and sociality, including certain intentionality. This formulation draws from the ‘law and culture’ paradigm initiated by Clifford Geertz and further developed by Laura Nader. In their paradigm, law is conceived as a worldview or structuring discourse which shapes our understanding of the world.62 This means that ‘facts’ are not simply waiting out there to be discovered by lawyers (or anthropologists), but are rather socially constructed through rules of evidence, legal conventions, and the rhetoric of legal actors. In many societies, it is argued, legal reasoning has become one of the most important ways in which people try to make sense of their world.63 This formulation of the relationship between the concepts of rights and culture has been especially interesting for anthropologists who have looked at human rights issues. The questions addressed range from ‘do international human rights produce something similar to a global culture’ to ‘are there many divergent human rights cultures?’ In this understanding, international declarations, conventions and agreements that are negotiated, implemented and monitored by national, international and trans-national institutions, form a structuring discourse with Engle, ‘From Skepticism to Embrace’, supra note 33, at 551. Pierre Bourdieu, ‘Identity and Representation: Elements for a Critical Reflection on the Idea of Region’ in P. Bourdieu (ed.), Language and Symbolic Power (Harvard University Press: Cambridge, 1991) 220-228 at 220. 61 Clifford, The Predicament of Culture, supra note 50; Cowan, ‘Ambiguities’, supra note 56; Reetta Toivanen, Minderheitenrechte als Identitätsressource: die Sorben in Deutschland und die Saamen in Finnland (Lit Verlag: Münster, 2001); Kay B. Warren, Indigenous Peoples and Their Critics: Pan-Maya Activism in Guatemala (Princeton University Press: New Jersey, 1998). 62 See, e.g., Laura Nader, Harmony Ideology: Justice and Control in a Zapotec Mountain Village (Stanford University Press, 1990); Geertz, Local Knowledge, supra note 44. 63 Cass Sunstein, ‘Rights and Their Critics’, 70 Notre Dame Law Review (1995) 727-757 at 730. 59

60

Finnish Yearbook of International Law (Vol. XV, 2004) 54 _______________________________________________________________ immense influence on our societies and especially on the way we perceive them. A few structuring elements should be named: it is individualistic in conception, it addresses suffering through a legal rather than an ethical framework, it emphasises certain aspects of human coexistence (an individual’s rights) over others (an individual’s duties or needs).64 At the same time, the whole foundation of this ‘human rights culture’ is constantly contested and clearly in an ongoing process of modification. When thinking about the practical aspect of human rights culture, one may recognise that people have to become involved in specific political and legal processes and accept the rules of this ‘game’. It often means a shift from local courts in the case of a particular human rights violation, via national courts to supranational and international courts (such as the European Court of Human Rights or the UN Human Rights Committee). Often, the claimants have to modify their claim when going through these different steps.65 Comprehensive ethnographical studies have provided important material to help understand how the vocabulary of the diverse UN treaty bodies and other inter-governmental organs can be used for dictating the ways in which a particular human rights violation can be addressed. The contribution of anthropology has been to show what people in different settings ‘feel’ to be a violation of their human rights.

Culture and the Claim for Universal Human Rights Franz Boas had been educated in Germany by people who were devoted to a Humboldtian universalist humanism. After immigrating to the United States, he developed his historical particularism as the method of social anthropology. The key concepts of his approach were anti-evolutionism, anti-racism and empirical research. He encouraged his students to engage in a hermeneutic understanding of the cultural contexts in which people developed their societies. Boas’ students, sceptical about Western culture and values, raised their voices in cases where there was a danger that the concept of ‘universalism’ would be used as tool to rule over other ways of life and different cultural values. Due to the misunderstanding of Boas’ particularism by neo-Darwinist scholars, there was an over-reaction to the AAA’s statement in the 1940s. Decades following the adoption of the Universal Declaration of Human Rights, anthropologists tried to avoid the whole discussion on what a relativist position actually meant in See Wilson, ‘Rights, Culture and Context’, supra note 51. Richard A. Wilson, ‘Representing Human Rights Violations: Social Contexts and Subjectivities’ in Wilson (ed.), Human Rights, supra note 4, 134-160.

64 65

Human Rights: A Stumbling Block for the Anthropologist? 55 _______________________________________________________________ ethnographic research dealing with human rights. Some were ashamed of the Boasian approach as they felt it had put anthropology in a naïve position of scepticism towards modern world. Still, anthropology as a discipline followed closely the development of human rights, some from a critical perspective asking what kinds of power relations were involved in the processes of rights discourse. Others, who rather embraced the concept sought out cross-cultural universals that could internationally legitimate human rights, by showing that there are certain universally acknowledged values that serve as the basis for human rights in every culture. Anthropological human rights research is dominated by two strains: The first group concentrates on showing the practical loop-holes in the realisation of rights of marginalised groups, such as women and ethnic minorities, or even of majorities in certain states that try to reject or at least resist certain human rights on the basis of their ‘differing value systems’ (i.e. Asian values debate). To this group one could count research on legal pluralism where the analysis concentrates on the parallel legal systems, i.e. in India and in the African continent. In addition, there are interesting studies on legal pluralism in the Western hemisphere, were some forms of legal pluralism seem to have resulted from the arrival of immigrants and refugees. The other group is more interested in studying the international human rights system as part of and as expression of a global culture, as a distinct cultural phenomena. Less popularity and less attention have, until recently, been given to detailed empirical and ethnographic studies on how people not only in ‘foreign’ cultures but also how ‘we’ use the language of universally declared rights to communicate in a global public sphere dominated by people fallen to the natural rights fallacy.66

Towards a Deeper Understanding? My aim is not to argue that anthropology would or should provide a ‘helping hand’ for legal scholars to better understand the circumstances in which rights are produced, established, claimed and negotiated – like it sometimes did during the colonial phase and therefore often served the people in power. Much more I would like to point out the importance of the detailed ethnographic studies based on field work in which anthropologists have over the decades made an effort to understand the human contexts in which the rights are produced, established, claimed, negotiated as well as the (intended and unintended) consequences of law. The long-lasting ignorance among legal scholarship of the 66

See page 21 for an explanation of my use of this term.

Finnish Yearbook of International Law (Vol. XV, 2004) 56 _______________________________________________________________ anthropological studies, especially towards its contribution to understanding cultural processes has been remarkable and this has hindered the development of the legal understanding of human rights as a global and a local phenomenon.67 It seems that due to the huge difficulties in defining what ‘culture’ actually means in human rights discourse, the anthropologists and lawyers have over the decades switched sides. The old concept of static culture essential of every people, already abandoned by anthropologists, has resurfaced in the writings of lawyers and policy makers. Anthropologists’ modern understanding of culture is often rejected by human rights advocates and by the marginalised people as it seems to undermine and weaken their possibilities of having their rights claims heard. Social anthropology has, as shown above, concentrated its research interests very much around the concept of culture and has tried to understand the individual as a social being, producing culture as well as consuming it. Culture as a process shapes individuals’ ways of thinking and conceptualising the world around her or him. Culture, as it is only possible to understand it in its concrete context and not in its abstract definition seems to be a stumbling stone for many researchers. From the lawyers’ perspective human rights law is often seen as creating law and order; it is a mechanism that helps making fair and reasonable decisions. The somewhat paradoxical fact that human rights law often seems to serve the powerful rather than the weak remains too often without critical and much needed discussion.

The Real World; an Example The following example shall illustrate how the political usage of an essentialist and static concept of culture is used to deprive certain people of their human rights. The problem is not only that this kind of concept of culture is used by the hegemonic institutions to keep certain people marginalised. The much more troubling part is that this culture concept is also adopted in litigation and legal advocacy. In many European countries (the following concrete examples are from Finland and Estonia), there is an ongoing debate on the right to education. On the basis of several treaty provisions68, education can be seen as a fundamental human right. I am fully aware that there are remarkable legal scholars whose work engages with the sociopolitical and cultural-economical context of law and takes a critical stand to the own position. I am also aware that many of us anthropologists have in our research ignored the fact that human rights are also legally binding laws and not just rhetoric. 68 Such provisions include Article 13 of the International Covenant on Economic, Social and Cultural rights, (concluded 16.12.1966, entered into force 3.1.1976, 993 United Nations Treaty Series 3); Article 29 of the Convention of the Rights of the Child, (concluded 20.11.1989, entered into 67

Human Rights: A Stumbling Block for the Anthropologist? 57 _______________________________________________________________ In an ongoing research, we have examined e.g. Roma people’s right to education in six European states.69 We have been challenged by a prototypical approach of state authorities when it comes to Roma children and schools: the authorities ask questions such as ‘how can we bring the Roma people to understand that they should send their children to school?’ The centre of this prototypical approach is that the Roma culture itself (represented as one homogeneous and closed entity) is defined as the core problem. The authorities believe that education is not respected in Roma culture; that Roma parents are not able to step outside their culture and give their children a fair chance for a better future. The typical anthropological involvement here would try to understand the Roma culture and assess what it means to say that ‘a culture’ does not respect education. The questions would be addressed to the members of the target group to find out why they do not want to send their children to school. One may find interesting but widely ignored information about racism and discrimination of Roma children in and outside of school, which reduces not only the willingness of the parents to send their children to school but also the willingness of the children to go to school. Additionally, one is confronted with statistics that suggest that even educated Roma people do not find employment simply because they have Roma names and look like Roma. Another finding can be that the education given in schools does not lead to an integration process, but rather creates rootless children as they are taught that their home culture is of less worth than the mainstream culture. These children often end up protesting against home and the elderly, but do not find a place among the majority either. The parents also have other reasons to fight the ‘influence’ of school: the Roma have been able to maintain their own kin groups unified by minimizing the contacts between their offspring and the majority. This does not include a disrespect of education; it is more an ignorance against a system that always meant discrimination for them. If the Roma culture is defined as the core problem, the implementation of Roma children’s rights will lead nowhere. Instead, the anthropological analysis allows questions regarding the majority school and general power structures in the society to be formulated.

force 2.9.1990, 28 International Legal Materials 1456); and Article 10 of the Convention on the Elimination of all forms of Racial Discrimination, (concluded 21.12.1965, entered into force 4.6.1969, 660 United Nations Treaty Series 195). 69 For more information on the research project ‘Teaching Human Rights in Europe’ see <www.humanrightsreseach.de> (visited on October 8, 2005). The research is conducted at the Human Rights Centre of the University of Potsdam by Claudia Mahler and at the Department for European Ethnology at the Humboldt University in Berlin by Anja Mihr and the author.

Finnish Yearbook of International Law (Vol. XV, 2004) 58 _______________________________________________________________ The most important question is, then, that if we are to take the universal right to education seriously, how should society change and how should the school within it change in order to offer Roma people an education that respects them and their families? The bottom-line of the answer should be that members of non-dominant societal groups are considered as equals without imposing on them majority’s understanding of what equality means. For a human rights lawyer this information is an asset when she/he wants to decide her/his cases and litigates in the true spirit of human rights. If one is to take human rights seriously the societal context of the person and the incident has to be scrutinised carefully. This approach poses, of course, tremendous challenge for a lawyer. Law is part of the dominant culture and the lawyer will actually need to step outside of all this and be able to put its hegemonic nature in question.

Local and Global I am fully aware that another debate must enter the picture: what shall be done with ‘cultures’ that do not respect human rights; e.g. cultures where girls are treated not only differently but discriminated against because of their sex. Without entering this debate here, it shall be argued, in Heiner Bielfeldt’s words, that no culture is a human rights culture but people in all cultures can learn to respect human rights. 70 This also indicates that there are enormous obstacles for the full realization of human rights in every culture and that we need much more anthropological and sociological empirical and qualitative studies to understand why people use culture-based arguments against human rights. We need to know who argues with culturalist arguments against human rights and why. We also need to understand whether the people opposing human rights actually oppose a certain (hegemonic) implementation of those rights. Anthropologists have throughout the 20th century participated in the academic discussion about rights and their realisation and their consequences. This contribution has remained a well protected secret even among anthropologists. The anthropologist account has certainly over the years after the UDHR emphasised the morality rather than the legality of rights, discussing issues such as value perceptions in different contexts and concepts of good life. At the same time, anthropologists earlier as well as today agree that states have to guarantee that all people are treated similarly under law, except when legitimate reasons to treat them differently exist.

70 Heiner Bielefeldt, Philosophie der Menschenrechte. Grundlagen eines weltweiten Freiheitsethos (Wissenschaftliche Buchgesellschaft: Darmstadt, 1998) at 121ff.

Human Rights: A Stumbling Block for the Anthropologist? 59 _______________________________________________________________ Human rights, as they constitute the minimum standards agreed to by states, need the continuing attention of both social sciences and lawyers to give substance to the central provisions of non-discrimination and sovereignty. The minimum standard has to be the same regardless of the cultural background of a person. For example, it is unacceptable to argue that in a particular cultural setting, domestic violence belongs to that culture and should therefore not be a focus of human rights action or intervention. 71 This form of violence is a universal phenomenon and must therefore be fought against everywhere. As there are no cultures that would be more human rights conform than others, it is crucial that anthropologists take actively part in the processes where human rights are debated and help reveal the real reasons behind continuing human rights violations.

The End of Fallacies? Anthropology, due to its contextualising qualitative methodology, can contribute to overcoming the so-called ‘culturalist fallacy’ as well as the ‘natural rights fallacy’. Culturalist fallacy, a misunderstanding that people are only products of their culture and can only be assessed from within the framework of their own cultural values (e.g. cases of honorary killings), has had and continues to have severe consequences on the realisation of universal human rights, especially the rights of women and children. I argue that culture should be understood, in its modern version, not as the obstacle of universal human rights but merely as the diversity of contexts in which universal rights can be and are produced and adopted. In order to understand the nature of the process of production and adoption of human rights, more detailed empirical studies of the circumstances of the cases in which culture is argued are necessary. Both lawyers and anthropologists need each other in order to avoid this culturalist fallacy. The other fallacy could be called ‘natural rights fallacy’: this fallacy is evident among many students (and even scholars) who take a strong belief in natural goodness of the international human rights treaties and documents as if the human rights would not be a compromised product of power struggles between different states representing different political fantasies.72 They are also 71 See here a book by Norwegian anthropologist Unni Wikan, The Generous Betrayal (The University of Chicago Press, 2002). In this book Wikan discusses the dangers of a policy and jurisprudence applied to so-called new minorities/immigrants which tries to understand both perpetrators and victims purely in the context of a static culture to which they are assumed to belong to. For decades this approach has contributed to human rights violations taking place in all societies. 72 Marie-Bénédicte Dembour, ‘Following the Movement of a Pendlum: Between Universalism and Relativism’ in Cowan, Dembour, and Wilson (eds.), Culture and Rights, supra note 4, 56-79 at 56-58.

Finnish Yearbook of International Law (Vol. XV, 2004) 60 _______________________________________________________________ believed to represent a natural universal standard against which it is convenient to measure people’s and government’s action. Alain Supiot has recently argued that human rights can be studied as a common resource rather than a common standard that should – in accordance with treaties – be made equally available to all humanity. He argues that ‘[t]o be common, a resource must be open to general appropriation. Assisting that process is the only way to respect the genius of each civilization without sentencing it to self-enclosure’.73 Here anthropology as a discipline makes efforts to respect and understand the diversity of values and lifestyles without assuming them to produce closed cultural entities and can, thus, give a valuable contribution to the study of human rights.

73 Alain Supiot, ‘The Labyrinth of Human Rights: Credo or Common Resource?, 21 New Left Review (2003) 118-136 at 131.

‘My Solemn Responsibilities to My People’: Traditional Rulers and Post-Colonial State in Ghana Timo Kallinen*

Introduction In legal scholarship certain assumptions are usually made of the state as an institution. This applies in particular to the manner it is considered to dominate the realm of social relationships as well as create a single system of authority. However, as this article discusses, in reality the state’s ability to do so is limited by its very nature. The values and concepts that the Western nation-states are built on and operate with are by no means universal and, as a consequence, modern states frequently fail to encompass traditional political formations based on a totally different cultural logic. Chieftaincy and kingship discussed in this article offer one example of this phenomenon. The traditional political system of the Asante of Ghana, built around the institution of chieftaincy, is still very viable despite the introduction of the postcolonial state and its bureaucratic machinery built according to the Western ideals of governance. This coexistence is particularly interesting now, during the present era of economic globalization, because it may well be that the modern nation-state is actually a more ‘endangered’ political formation than the traditional chieftaincy.1 This article delineates those aspects of chieftaincy that make it a specific kind of non-Western political institution and, I argue, have secured its survival and *

The research is based on fieldwork conducted in Ghana during 1996 and 2000-2001. It was part of the ‘Kingship and Kinship’ project based at the Department of Social and Cultural Anthropology, University of Helsinki, funded by the Academy of Finland and supervised by Prof. Karen Armstrong. Additional funding has been provided by the Finnish Cultural Foundation. 1

See, e.g., Jukka Siikala, ‘Chiefs and Impossible States’, 9 Communal/Plural (2001) 81-94.

Finnish Yearbook of International Law (Vol. XV, 2004) 62 __________________________________________________________________ dynamism during the decades of decolonization. These points are further illustrated by a short case study of a local conflict between two traditional rulers that occurred in 1996. Finally, I will explore the ways in which the contemporary Asante (and Ghanaians) see the cultural legitimacy of their political leaders – both traditional and modern. These ideas are important if one wishes to obtain a deeper understanding of political life in West Africa – a region well-known of its political instability. In order to achieve that, one has to concentrate on the indigenous notions on politics, without imposing Western concepts, values and ideologies. Such understanding is essential when discussing the conflicts and problems of governance – and societal and cultural change in general – in the area.

Chiefs, Lineages, and the Supernatural The traditional social and political organization of all Akan groups2 is more or less uniform. It is often said that the Akan political order provides a classic example of a chiefdom or segmentary state. The best known of the Akan polities is the Kingdom of Asante (Ashanti),3 which is a union of a number of autonomous chiefdoms under one king (Asantehene). Each chiefdom is a distinct territorial unit centred on the chief’s capital town or village. It is composed of several matrilineages that are established on the basis of common descent from a known female ancestor. The anthropologists have usually viewed the lineage as a fundamental corporate group with important social, political, economic and religious functions. The paramount chief (]hene or omanhene) is elected from a group of candidates eligible by right of membership in a matrilineal descent group in which the office has been vested. He is accompanied by a queen mother and is guided by a council of divisional chiefs or elders who are the representatives of the resident matrilineages of the chiefdom. The lineages belong to larger entities, the matriclans, which are not localized units and they include member lineages throughout all Akan chiefdoms.4 The offices are 2

The Asante people belong to a larger ethnic and language group called the Akan. The Akan people live in the coastal and forest areas of Ghana and Côte d’Ivoire. In Ghana they are the largest ethnic and language group constituting roughly 40% of the total population. The Akan language and its dialects are classified under the Tano language family, including Asante Twi, Fante, and Akuapem, which also have their own distinctive written forms.

3

The spelling of indigenous names and terms follows Asante Twi orthography. In some cases, in order to avoid confusion, an alternative ‘anglicized’ spelling is given in brackets. 4 The matriclans are large descent groups associated with a mythical ancestress. The groups are exogamous, meaning that members of the same clan cannot marry one another. The number and names of Akan matriclans vary in different accounts. The contemporary Asante usually mention the following eight: Oyoko, Bretuo, Asene, Aduana, Ekuona, Asona, Agona, and Asakyiri.

‘My Solemn Responsibilities to My People’ 63 __________________________________________________________________ classified according to the clan identity of the lineage in which they are vested. Furthermore, the office gives clan identity to the whole polity. Through this extension, the offices, the chiefs occupying them, and their polities become related to each other. Hence, the clan system works as an important unifying force between chiefdoms: Chiefs who belong to the same clan call one another “brother” and this is not a mere title of courtesy. Often this connexion has the support of a tradition that the founders of the chiefships were the sons of one mother. Chiefs thus fraternally related often consult together over urgent public issues irrespective of their immediate allegiances. When one of them is installed, his brother chiefs send him obligatory gifts and he, in turn, sends gifts to thank them. They may have special ceremonial duties at his installation; and again, when a chief dies his brother chiefs must attend the funeral with special gifts and may have ceremonial duties in connexion with it.5

In addition to the line of succession and inter-chiefdom relations, the principles of matrilineal descent also create a link for communicating with the supernatural. E. E. Kurankyi-Taylor calls the Asante lineage a ‘perpetual corporation’ meaning that it is understood to be comprised not only of its living members but also of the dead and unborn. In this scheme of things the office of the chief holds a nodal position, since it stands between the living who are considered the guardians of ‘the fortunes and affairs of the whole body corporate’ and the ancestral spirits who have absolute power over the former.6 Generally, the ancestors are considered to use their powers to help the living in their worldly undertakings, but the bad deeds of the living also bring shame on the ancestors, who do not hesitate to punish them. 7 Thus the prosperity and welfare of the living is believed to depend directly on good relations with the ancestors.8 Because of the delicateness of this connection it is vital that the office vested in the lineage is occupied by a person who is a matrilineal descendant of the founding ancestor of the lineage and thus close enough to the ancestors for communicating with them. This communicating takes place through sacrifice. The material symbol of chiefly office and the medium of ancestral sacrifice is the stool. Thus offices are usually referred to by using the term ‘stool’. After a chief’s death his 5

Meyer Fortes, ‘Kinship and marriage among the Ashanti’ in A. R. Radcliffe-Brown and Darryl Forde (eds), African Systems of Kinship and Marriage (first published 1950) (Oxford University Press: London, 1962) at 260.

6

E. E. Kurankyi-Taylor, ‘Ashanti Indigenous Legal Institutions and their Present Role’, PhD thesis, University of Cambridge (1951) at 18.

7

Ibid., at 191-192.

8

Ibid., at 39.

Finnish Yearbook of International Law (Vol. XV, 2004) 64 __________________________________________________________________ stool is ‘blackened’, i.e., consecrated, and deposited in a stool house or stool room with the stools of his predecessors, where they serve as ancestral shrines. In addition to the ancestral spirits, the chief also gives sacrifices to the local deities in order to guarantee the well-being and success of his people. In many ways, it is the communication with the supernatural that is seen as the source of the chief’s power and thus he is a divine ruler. Hence, it can be said that in the Asante (or Akan) thought power transcends human agency and it is seen to originate from the spiritual realm The strong linkage between political authority and the supernatural is apparent in the traditional accounts concerning the foundation of the Asante Kingdom. The chiefdom of Kwaman (later renamed Kumase) was held as a tributary by the Kingdom of Denkyira, a southern neighbour of Asante. During the reign of King Ntim Gyakari the level of tribute became intolerable, and the chiefdoms serving Denkyira decided to rise to arms with a young Kwaman royal, Osei Tutu, as their leader. Denkyira was defeated after a decisive victory in the battle of Feyiase, and the military alliance was transformed into a political union called Asanteman, the Asante state. Osei Tutu, the head of the coalition, became the first Asantehene, the king of Asante, and his hometown, Kumase (Kumasi), became the capital of the Kingdom. Osei Tutu’s victory was backed by the supernatural powers of his friend and ally, a traditional priest called Komfo Anokye. Right before the decisive battle Komfo Anokye informed the Asante chiefs that ‘he had a special mission from Onyame, the God of the Sky’.9 A big meeting was held in Kumase, where Anokye ‘brought down from the sky, in a black cloud, and amid rumblings, and in air thick with white dust, a wooden stool with three supports and partly covered with gold’.10 Anokye told the chiefs that the stool contained the sunsum, the ‘spiritual backing’, of the Asante nation, and Osei Tutu was to become its first custodian and thus the chosen head of the newly formed state. At the same time Anokye also decreed the taboos of the stool and stated that if they were violated Asanteman would ‘sicken and lose its vitality and power’.11 Hence by guarding the Golden Stool the Asantehene also protects the ‘character’ or ‘health’ of the state. Regular sacrifices are still made to the Golden Stool in order to preserve and enhance its spiritual powers.12

9

R. S. Rattray, Ashanti (first published 1923) (Oxford University Press: London, 1955) at 288-289.

10

Ibid., at 290.

11

Ibid.

12

Emmanuel Akyeampong and Pashington Obeng, ‘Spirituality, Gender, and Power in Asante History’, 28 International Journal of African Studies (1995) 481-508 at 495-496.

‘My Solemn Responsibilities to My People’ 65 __________________________________________________________________

One Country, Two Systems? Today the Asante Kingdom and other Akan polities coexist with the Republic of Ghana. This coexistence has sometimes proved to be problematic, mainly because the indigenous political formations and the modern nation state are organized according to an entirely different logic with the result that their relationship to the Ghanaian society is also fundamentally different. The post-colonial state’s aspiration to have absolute control over national affairs has constituted a major challenge to all traditional forms of social organization. Accordingly, ever since the independence of Ghana, the state has sought to encompass the indigenous chieftaincy by creating its own ‘modern’ chieftaincy institutions. First, it incorporated the councils of the local paramount chiefs to its own administrative machinery by granting them a status of a ‘statutory body’. Bureaucratically re-named as Traditional Councils, these bodies were to deal with the internal affairs of the Traditional Areas (i.e., chiefdoms). Furthermore, Regional Houses of Chiefs were set up for solving disputes over chiefly offices and land. They are comprised of the paramount chiefs of the administrative regions13 and they handle appeals from the Traditional Councils of the paramountcies. In the Chieftaincy Act 370 of 1971 the National House of Chiefs was created in order to take appeals from the regional level and also to keep a national register of chiefs. Appeals from the National House of Chiefs go to the Supreme Court of Ghana. 14 Both the National House and the Regional Houses are also established in the new constitution of Ghana.15 From the point of view of these changes the idea of kingship is problematical in at least two major ways. Fist of all, the composition of the Kingdom is incompatible with the regional boundaries. The chiefdoms of the Kingdom are located in Ashanti and Brong-Ahafo Regions, but there are also Asante ‘islands’ in the Eastern and Volta Regions. Hence, the Asante chiefs and their Traditional Councils belong to four different Regional Houses. Second, Ghanaian laws recognize only chieftaincy, not kingship.16 Consequently, nowadays, in Kumase there are two separate councils: the Kumasi Traditional Council, which consists of 13 The Republic of Ghana consists of ten administrative regions, which are all divided into numerous districts. The regions are Greater Accra, Central, Western, Eastern, Volta, Ashanti, Brong-Ahafo, Northern, Upper West, and Upper East. 14 I am grateful to Mr. Barima Kusi Ankrah, the Registrar of the National House of Chiefs, for patiently explaining to me the complexity of rights, relations, and histories connected to the modern chieftaincy bodies. 15

Constitution of the Republic of Ghana 1992, Chapter 22, Articles 270-274.

16

Ibid.

Finnish Yearbook of International Law (Vol. XV, 2004) 66 __________________________________________________________________ the divisional chiefs of the capital and deals with the internal affairs of Kumase, and the Asanteman Council, which consists of the paramount chiefs of the Kingdom and decides on matters of larger national interest. Both councils are presided over by the Asantehene. The Traditional Council is a statutory body recognized by the Ghana government, whereas the Asanteman Council is a traditional body, which only has the right to arbitrate disputes. The latter is the successor of the Asantemanhyiamu (lit. ‘meeting of the Asante Kingdom’) of the pre-colonial period, which was ‘restored’ by the British as the Ashanti Confederacy Council in 1935. In terms of the national law of Ghana, no one can be forced to defend his/her case in the Asanteman Council. However, since litigation in the Asanteman Council is voluntary, its decisions are not appealable, unless there is evidence of foul play. In practise, Asante chiefs are expected to submit their disputes to arbitration in the Asanteman Council and not to take them to the Regional House of Chiefs or Ghanaian courts, which do not recognize the Asantehene as the supreme arbiter (although some chiefs have openly defied this expectation). The apparent ideological basis of these state policies is the notion that traditional political institutions will continue to have real political significance only if they are integrated to the administrative machinery of the nation-state or, otherwise, they are doomed to become marginalized or disappear completely as the postcolonial government takes over their functions.

‘Natural Attenuation?’ In terms of modern anthropology, the classical definition of Asante social and political structure is by Meyer Fortes. The anthropologists of the structuralfunctionalist school are often criticized for having had little interest in colonial structures, their looming breakdown, and later their replacement with the structures of the post-colonial nation-state. 17 This holds true for Fortes’ works on the Asante. His predecessor, R. S. Rattray, was concerned with the impacts of colonialism, although he has been criticized for not properly recognizing the effects that colonial rule had had on chieftaincy in Asante when he was studying it.18 The analysis of the Asante political system by Fortes’ Ghanaian student, K. A. Busia, was explicitly

17 See, e.g., Keith Hart, ‘The Social Anthropology of West Africa’, 14 Annual Review of Anthropology (1985) 243-272 at 247-248. 18 T. C. McCaskie, ‘R. S. Rattray and the Construction of Asante History: An Appraisal’, 10 History in Africa (1983) 187-206.

‘My Solemn Responsibilities to My People’ 67 __________________________________________________________________ about the colonial transformation. 19 Fortes himself, however, very rarely refers to the existence of the colonial or the post-colonial state that had been built around the Kingdom he was studying. Nevertheless, this does not mean that Fortes was not at all interested in or did not have anything important say about the impact of modern political institutions. On the surface, it seems that Fortes, with his colleague and coauthor E. E. Evans-Pritchard, agreed with the commonplace notion that chieftaincy loses its importance in African societies through the loss of independent legal authority. In state societies, the paramount ruler is prohibited, by the constraints of the colonial government, from using the organized force at his command on his own responsibility. This has everywhere resulted in diminishing his authority and generally in increasing the power and independence of his subordinates. He no longer rules in his own right, but as the agent of the colonial government. The pyramidal structure of the state is now maintained by the latter’s taking his place as the paramount. If he capitulates entirely, he may become a mere puppet of the colonial government. He loses the support of his people because the pattern of reciprocal rights and duties which bound him to them is destroyed. Alternatively, he may be able to safeguard his former status, to some extent, by openly or covertly leading the opposition which his people inevitably feel towards alien rule. Very often he is in the equivocal position of having to reconcile his contradictory roles as representative of his people against the colonial government and the latter against his people.20

They saw that the balance of forces, which underlies political systems of all kinds, is permanently altered by colonialism and hence chieftaincy is removed from its former place. However, what they apparently did not agree with, was the idea that chieftaincy is going to be replaced by modern political institutions and gradually disappear. Although chieftaincy is seen to be more or less at the mercy of the colonial administration, it is nonetheless understood that one political institution cannot just replace another. But the sanction of force on which a European administration depends lies outside the native political system. It is not used to maintain the values inherent in that system. In both societies of Group A and those of Group B [i.e., states and ‘stateless’ societies] European governments can impose their authority; in neither are they able to establish moral ties with the subject people. For, as we 19 K. A. Busia, The Position of the Chief in the Modern Political System of Ashanti: A Study of the Influence of Contemporary Social Changes on Ashanti Political Institutions (first published 1951) (Frank Cass & Co.: London, 1968). 20

Meyer Fortes and E. E. Evans-Pritchard, ‘Introduction’ in Meyer Fortes and E. E. Evans-Pritchard (eds), African Political Systems (first published 1940) (KPI: London, 1969) 1-23 at 15 (italics in the original).

Finnish Yearbook of International Law (Vol. XV, 2004) 68 __________________________________________________________________ have seen, in the original native system force is used by a ruler with the consent of his subjects in the interest of social order. An African ruler is not to his people merely a person who can enforce his will on them. He is the axis of their political relations, the symbol of their unity and exclusiveness, and the embodiment of their essential values. He is more than a secular ruler; in that capacity the European government can to a great extent replace him. His credentials are mystical and derived from antiquity.21

Based on my own research on the Asante it is safe to say that Fortes and Evans-Pritchard were correct in realizing that chieftaincy in Africa was a specific type of non-western political institution and thus it could not be replaced by the colonial government. In this respect, I think, their views differed significantly from those of the ‘practical anthropology’ propagated by Bronislaw Malinowski and which held a dominant position in British anthropology at the time. 22 Of course, Malinowski too understood that the strength of the African institutions was in their relatedness to ‘all aspects of culture’. According to him, ‘[c]hieftainship shows such a great strength and endurance because it is associated with the local religion and magical beliefs; with the tribesmen’s acceptance of customary law as the only adequate expression of right and wrong’ and hence uprooting it completely would prove very difficult. However, ultimately he believed that ‘[o]ne institution can be replaced by another which fulfils a similar function’, and consequently, chieftaincy would become outmoded and eventually be replaced with modern political institutions.23 Views analogous to those of Malinowski have been prevalent outside the circles of academic anthropology. Many development theorists who have subscribed to the classical modernization theory as well as to the underdevelopment and dependency theories have assumed that ‘the principles of “modern” formalized bureaucratic office and of functional differentiation would become more important than “traditional” leaders’.24 More indirectly, similar notions live on in the views of those political writers who speak of ‘failed states’, where the post-colonial administration has collapsed and the people are considered to have been left in the midst of chaos and anarchy. Such writers very often see indigenous political

21

Ibid., at 16.

22

See, Henrika Kucklick, The Savage Within: The Social History of British Anthropology, 1885-1945 (Cambridge University Press: Cambridge, 1991). 23

Bronislaw Malinowski, The Dynamics of Culture Change: An Inquiry into Race Relations in Africa (first published 1945) (Yale University Press: New Haven, 1968) at 52.

24 Alex Harneit-Sievers, ‘Igbo “Traditional Rulers”: Chieftaincy and the State in Southeastern Nigeria’, 33 Afrika Spectrum (1998) 57-79 at 57.

‘My Solemn Responsibilities to My People’ 69 __________________________________________________________________ formations, such as clans, merely as instances of ‘tribalism’ and equate their leaders with ‘warlords’.25 But most importantly, such views were cultivated by the new political elites of the post-colonial states. For example, the first head of state of the independent Ghana, Kwame Nkrumah, recognized chieftaincy as one of the ‘traditional forces that can impede progress’, but he, nonetheless, understood that it could not just be abolished right away, since the ‘place of chiefs is so interwoven with Ghanaian society that their forcible eradication would tear gaps in the social fabric which might prove as painful as the retention of the other more unadaptable traditions’.26 Yet he predicted a ‘natural attenuation of chieftaincy under the impact social progress’.27 Consequently, there were ‘numerous attempts to marginalize, control, and humiliate some chiefs’.28 The same attitude was also adopted by the military governments of J. J. Rawlings in the 1980s and 1990s. The Nkrumah administration concentrated on ‘subjugating and suppressing the economic autonomy of the chiefs through various laws’, while the Rawlings administration barred chiefs from participating in partisan politics on both grassroots and national levels.29 Not surprisingly, one chief’s comment to me about government-chiefs relations was that ‘all governments of Ghana, from Nkrumah to Rawlings, have tried to destroy the Asante Kingdom’.30 Yet it has survived all these challenges and the Ghanaian constitution still guarantees the ‘institution of chieftaincy, together with its traditional councils as established in customary law and usage’.31 However, the Asante chiefs themselves do not justify the existence of their offices by reference to the constitution, chieftaincy acts and laws, or anything like that. Their strength is still the ‘moral tie’ to the people.

25

See, e.g., Robert D. Kaplan, ‘The Coming Anarchy: How scarcity, crime, overpopulation, tribalism, and disease are rapidly destroying the social fabric of our planet’, 273 The Atlantic Monthly (1994) 44-76. 26

Kwame Nkrumah, Africa Must Unite (Heinemann: London, 1964) at 83.

27

Ibid., at 84.

28

Kwame Boafo-Arthur, ‘Chieftaincy in Ghana: Challenges and Prospects in the 21th Century’, 2 African and Asian Studies (2003) 125-153 at 127. 29 Ibid. 30

I suppose the Asante chiefs see things differently now, since the president in office, Mr. John Kuffuor, is an Asante royal of the Apagya stool, which is well known for ‘having a lot of gold’. During his electoral campaign in 2000 I saw Mr. Kuffuor several times taking part in public ceremonies in the Asantehene’s palace. Every time the crowd cheered him enthusiastically. 31

Constitution of the Republic of Ghana 1992, Chapter 22, Article 270, para. 1.

Finnish Yearbook of International Law (Vol. XV, 2004) 70 __________________________________________________________________

Rules of the Chiefs, Rules of the Nation State In his recent article about chieftaincy in contemporary Ghana, Kwame BoafoArthur describes the chief as ‘a political and social power center (if even in a circumscribed sense) in the area he rules and ipso facto a microcosm of authority who at times rivals the central government in legitimacy, recognition, and loyalty by he subjects’.32 To my mind, this definition does not capture the significant differences between the two political institutions that Fortes and Evans-Pritchard recognized. First, in terms authority backed up by physical force, the chiefly power does not constitute a challenge for the post-colonial administration endorsed by such coercive institutions as the police and the military. On that level of political practise, the chiefs do not rival the government. Second, however, when it comes to the ‘legitimacy, recognition, and loyalty by the subjects’, it is important to understand that the sources from where the modern and traditional institutions derive their formal justification are entirely different. The link between the rulers and the ruled in the post-colonial nation-state is contractual. The politician, elected to an office, is temporarily mandated to put forward the views of those he/she represents, while those represented retain the right of recall, if they see themselves misrepresented.33 The chief, however, represents his people in a different sense. The credentials of the chief are still to a large extent ‘mystical and derived from antiquity’ and that is something that cannot be changed by orders and legislation supported by coercive machinery. This difference can be illustrated by a dispute between two traditional rulers, the Asantehene and the Takyimanhene, over the allegiance of certain villages. The case will show how the principles that legitimate chieftaincy are kept distinct from those that legitimate the modern government and how they are to a certain extent impenetrable to the latter. How do the principles or rules, according to which the chiefs define their relationship to the people and the land, relate to modern political institutions? The Asantehene’s control over certain villages within the Takyiman (Techiman) territory has remained a flammable political question. It has led to the separation of Takyiman (among some others) from the Ashanti Confederacy in 1951 and also to open hostilities between the ‘pro-Asante’ and ‘anti-Asante’ chiefs and their supporters in 1982 and 1996. I will here talk about the events that took place around February and March in 1996, when I was in Kumase myself. Any detailed account of the whole Takyiman conflict cannot be given here because it is literally hundreds 32 33

Boafo-Arthur, ‘Chieftaincy in Ghana’, supra note 28, at 127.

Jonathan Spencer, ‘Post-Colonialism and the Political Imagination’, 3 Journal of the Royal Anthropological Institute (1997) 1-19 at 12.

‘My Solemn Responsibilities to My People’ 71 __________________________________________________________________ of years old and also because it is nowadays connected to the larger issue of the relations between the Bono (Brong) ethnic group and the Asante.34 Furthermore, it is also closely associated with the post-colonial government’s decision to create a separate ‘Brongland’ by splitting the old colonial Ashanti Region into two administrative areas, the Ashanti Region and the Brong-Ahafo Region, in 1959. This split did not have any effect on the traditional allegiances of the chiefs of the two regions, but it is still generally thought that by doing so the government sought to ‘break the back of what it considered as dangerous Asante nationalism’.35 However, a short historical background of the dispute can be given as follows. The origins of the disagreement go all the way back to the Asante conquest of Takyiman in 17221723, which put an end to the Takyiman hegemony in the northwest and gave rise to the neighbouring chiefdom of Nkoransa (Nkoranza). After the defeat of the Takyimanhene and the flight of his people, the Asantehene gave a large portion of the Takyiman lands to the Nkoransahene and trusted the rest to the hands of his overseers, who are subordinate officeholder assigned to supervise lands and communities geographically detached from Kumase. Those communities in the Takyiman area that swore allegiance to Kumase through these overseers are often referred to as ‘the nine villages’.36 After the British occupation of Asante that had followed the last armed uprising in 1900-1901, the authority of the Asantehene and his overseers was nullified and the villages were returned to the Takyimanhene. However, in 1935 when the colonial government ‘restored’ the Ashanti Confederacy Council, the villages were re-annexed to the capital and the position of certain Kumase officeholders as the overseers of the villages was recognized again. After this decision the villages remained in Kumase control, while the successive Takyimanhene pursued their claims to them in various colonial courts and lost each case. As a last effort, in 1949 and 1950, petitions were made to the King of England who also rejected them.37 Despite these setbacks the Takyiman stool has never given up its claims to these villages. Consequently, in some, if not all, of these localities there are two chiefs, one appointed by the Asantehene and one appointed by the Takyiman 34 See, F. K. Drah, ‘The Brong Political Movement’ in Kwame Arhin (ed.), A Profile of Brong Kyempim: Essays on the Archaeology, History, Language and Politics of the Brong Peoples of Ghana (Afram Publications: Accra, 1979). The term Bono refers to the Akan peoples inhabiting the areas north and northeast from Asante. 35

Ibid., at 147.

36

The villages and their overseers (in brackets) are: Nkyiraa (Nsumankwahene), Buoyem (Asantehemaa), Offuman (Adumhene and Dadiesoabahene), Nwoase (Dadiesoabahene), Branam (Dadiesoabahene), Tano Oboase (Omantihene), Subinso (Anantahene), Tuobodom (Nsumankwahene), Tanoso (Oyoko Ahenkurohene). ‘Governor to Creech-Jones, 25 January 1950’, CO 96, 813/12, The National Archives, London, UK. 37

Ibid.

Finnish Yearbook of International Law (Vol. XV, 2004) 72 __________________________________________________________________ Traditional Council. The people of the villages are also divided into ‘pro-Asante’ and ‘anti-Asante’ sections. Clashes between the chiefs and their sections have occurred from time to time. In 1990 the Brong-Ahafo Regional House of Chiefs decided to establish a research committee to ‘investigate the reasons for the appointment of two chiefs’. The findings of the committee favoured the Takyiman side, but in practise the situation did not change. On the contrary, in February 1996 Asantehene Opoku Ware II announced that he had elevated four of the nine villages (Tanoso, Tano Oboase, Tuobodom, and Buoyem) to the rank of paramountcy, i.e., to the status of a constituent chiefdom of the Kingdom.38 This was interpreted by the Takyiman people as a great humiliation, since from their point of view an outsider had elevated four village-chiefs to an equal status with their overlord. This resulted in violence. Groups of men from Takyiman attacked the four elevated villages and three of the newly elevated chiefs had to seek refuge in Kumase. [W]hen the press arrived at Techiman for a news conference by the Omanhene and his elders in reaction to Otumfuo’s39 pronouncement, the whole town was charged with angry young men and women in red and black outfit chanting war songs and firing guns into the air. Vehicles loaded with armed young men were seen moving to the troubled towns while those who could not go, besieged the Omanhene’s palace to give him support.40

When the police and the military arrived and managed to put a stop to the fighting in the towns, the casualties of the conflict were counted to be one dead and thirty wounded (including one police officer). However, it was reported that ‘many more deaths could be traced to the bush where fighting went on’.41 There was more to come. Some men from the ‘pro-Asante’ section of Buoyem decided to teach ‘an unforgettable lesson’ to some of their townsmen because they had ‘fled the area instead of staying behind to offer support during the unprovoked Techiman attack’. Allegedly, hectares of tomato, cocoa, and food crops were destroyed in this retaliatory strike.42 The district office of the National Mobilization Programme in Nkoransa received 600 refugees from Buoyem and Tuobodom. 43 38

Raymond Bagulo Bening, Ghana: Regional Boundaries and National Integration (Ghana Universities Press: Accra, 1999) at 168-169.

39

Otumfo] (Otumfuo), ‘the powerful one’, is the most commonly used appellation of the Asantehene.

40

‘Chieftaincy clash’, <www.newsrunner.com/archive/NW200296.HTM> (visited 28 July 2005).

41

‘One killed in chieftaincy clash’, <www.newsrunner.com/archive/NW200296.HTM> (visited 28 July 2005). 42

‘Techiman Conflict: Deserters Lose Livelihood’, The Ashanti Independent, 11 March 1996, at 3.

43

‘Nkoranza Records 600 Refugees’, The Ashanti Independent, 11 March 1996, at 4.

‘My Solemn Responsibilities to My People’ 73 __________________________________________________________________ Meanwhile in Kumase I was surprised to hear how a lot of people were talking about war as a future possibility. The Asantehene had given a public announcement, according to which all the Asante in Kumase should dress in black as a sign of preparation for war. I had earlier planned a trip to Takyiman, which I had to cancel, since I did not want to get in the middle of the fighting and I was also advised not to go because it was possible that I would be targeted personally because ‘they will think you are a spy’. Later I was told that the Asantehene was going to speak to his people about the crisis in his palace at Manhyia, but also that only Asante people were allowed to take part in that meeting. Since I was clearly very interested in what was going on, a friend of mine suggested that he would put on his funeral cloth and go to the meeting and afterwards tell me everything that was said there. Unfortunately, when the day of the big meeting came, I could not find my friend, since he was too busy earning his livelihood at the Kumase central market. Although it would have been very thrilling to hear the news right away, missing the meeting was not such a big loss because the whole speech given by the Asantehene was published in the next issue of a local newspaper called The Ashanti Independent. In the statements given by both parties of the conflict there are numerous references to the legislation and court rulings of both the colonial and post-colonial eras. However, the interesting thing is that it is done mainly negatively; the disputants explain why the laws did not concern traditional allegiance or how they explicitly recognize the ‘customary rights’ of the chiefs. The matter in dispute itself was about traditional allegiance and it could be solved by establishing what is ‘customary’. Basically, the Takyimanhene, Ameyaw Takyi II, claimed that the villages had always been a part of the chiefdom of Takyiman. For example, he claimed that the village of Buoyem was traditionally the seat of the queen mother of Takyiman and the Buoyemhene was his uncle and hence he could not see any reason why his uncle should pledge allegiance to the Asantehene. Because the villages belonged to Takyiman and Takyiman ‘was not an extension of the Asante Kingdom’, the Asantehene could not elevate them to paramountcy.44 The Asantehene, on the other hand, stated that ‘before 1900 all the stools and people of the present Brong-Ahafo owed allegiance to the Golden Stool’. The villages in question had been a part of Kumase for nearly 300 years, and hence ‘the Asantehene’s right to elevate them to paramountcy in accordance with customary law, is unimpeachable’.45 According to Opoku Ware the whole dispute had resurrected in August 1995, when the Takyimanhene came with a delegation from the Brong-Ahafo Regional House of Chiefs to congratulate him on his 25th anniversary as the occupant of the 44 45

Bening, ‘Ghana’, supra note 38 at 169-170.

‘Otumfuo’s Statement on the Recent Disturbances in Techiman’, The Ashanti Independent, 4 March 1996, at 7.

Finnish Yearbook of International Law (Vol. XV, 2004) 74 __________________________________________________________________ Golden Stool. During that visit the Takyimanhene had pleaded with him to allow him to administer the nine villages. The Asantehene interpreted this plea as recognition of his overlordship. Thus Ameyaw was seen to have ‘expressly acknowledged the jurisdiction of the Golden Stool over the towns’. Nevertheless, he had to be turned down because, according to the Asantehene, ‘granting such a request would not only have amounted to the abdication of my solemn responsibilities to my people of that area, but could also set in motion a process leading to the gradual disintegration of the entire Asante Kingdom’.46 Here the Asantehene’s justification is obviously based on his status as the hereditary custodian of the Golden Stool, i.e., a divine king, and thus a symbol of the unity of the nation, who cannot let his kingdom disintegrate, since it would be against the core principles of his office. Roughly five months later, in January 1996, another delegation from the Brong-Ahafo Regional House of Chiefs, including the Takyimanhene, had paid him a visit with the intention of suggesting to the Asantehene that he would ‘consider certain arrangements whereby matters affecting chieftaincy in those areas may be heard by Brong-Ahafo Regional House of Chiefs’. The Takyimanhene addressed the Asantehene as his clansman, a grandfather, and begged the Asantehene that he would allow his grandson to administer the villages ‘for and on behalf of the Golden Stool’. 47 A reference was made also to patrilateral and affinal links, since the Takyimanhene’s ‘grandfather, Oheneba Kofi Ntisi, was the son of Asantehene Mensah Bonsu and his aunt Nana Yaa Abrafi was married to Nana Agyeman Prempeh’.48 Consequently, as Ameyaw himself put it, ‘a litigation over the issue in perpetuity would serve no useful purpose as that would always separate the two families within the same clan’.49 The Takyimanhene’s reconciliatory gesture is based on the idea that matrilineal relatives should not fight or litigate against each other and, at the same time, he is showing respect to a senior relative and asking to be granted a privilege by him. However, 46

Ibid.

47

Ibid.

48

Bening, ‘Ghana’, supra note 38, at 174. Mensa Bonsu (1838/39-1896) and Agyeman Prempe (1873/1874-1931) are past kings of Asante and thus Opuku Ware’s matrilineal predecessors. 49 Ibid. The actual relationship between the ruling lineages of Kumase and Takyiman is very complicated. It is often said that the Takyimanhene belongs to Ayokoo or Oyoko clan and thus to the same clan as the ruling lineage of Kumase. See, e.g. Kwame Arhin, ‘Bono-Manso and Techiman: Interview with Nana Kwakye Ameyaw, Omanhene of Techiman – Successor to the Bono-Manso State’ in Arhin (ed.) ‘A Profile of Brong Kyempim’, supra note 34, at 50. Some sources claim that the Takyimanhene belongs to the Anana clan, which is different from the Oyoko. ‘Meyerowitz to CreechJones, 17 September 1948’, CO 96, 785/3, The National Archives, London, UK. However, there are also sources indicating that Anana is only another local name for Oyoko or a subgroup of the Oyoko. James Boyd Christensen, Double Descent among the Fanti (Human Relations Area Files: New Haven, 1954) at 21-25. The present Takyimanhene apparently thinks they belong to the same clan. I do not know what the view of the royals of Kumase is on this matter.

‘My Solemn Responsibilities to My People’ 75 __________________________________________________________________ this plea was once again denied on the same grounds as before. On that occasion the Asantehene also revealed his plans to elevate the four villages to paramountcy, which eventually triggered the hostilities in Brong-Ahafo.50 The press release, which followed the unrest condemned the violence, ‘which had been unleashed on the peace loving people’ of the nine villages, ‘whose only offence is that they have chosen to serve the Golden Stool as their ancestors did’ and it ended in a declaration: ‘I must state unequivocally that what belongs to the Golden Stool will not be ceded to anybody, and that acts of wanton violence and provocation will not deflect us from our sacred rights and responsibilities’.51 The Brong-Ahafo Regional House of Chiefs, which had been caught in the middle of a three hundred years old dispute, took a stand, when its standing committee declared that the Asantehene ‘has no legal, customary, and constitutional right’ to elevate the four chiefs.52 However, it later became known that a significant part of the chiefs in the Regional House did not concur with this view.53 Also the government assigned its National Emergency Committee to investigate the matter and ‘ensure a return to a state of normalcy to enable all displaced persons to return to their homes and lead normal lives’.54 It was, nonetheless, emphasized by the Minister of Information that ‘it is not the intention of government to interfere with the institution of chieftaincy’. A reply from the four elevated chiefs also followed. They made a joint statement where they welcomed the government’s decision to investigate the case and hoped it will ‘settle the long standing dispute which only exists in the minds of those who want to evade history’. 55 However, they added that ‘most of the chiefs in Brong Ahafo owe their present status to the process of elevation set in motion by the occupants of the Golden Stool’ and therefore it is ‘preposterous for the chiefs, individually or collectively to question the constitutional, legal, moral or the customary right of the Asantehene to carry out the exercise’.56 Although the fighting had ceased, the situation in the Takyiman area remained difficult.

50 ‘Otumfuo’s Statement On The Recent Disturbances in Techiman’, The Ashanti Independent, 4 March 1996, at 7. 51 Ibid. (italics in the original). 52

‘Asantehene at fault’, <www.newsrunner.com/archive/NW050396.HTM> (visited 28 July 2005).

53

Bening, ‘Ghana’, supra note 38, at 174-175.

54

‘Investigations into disturbances in Techiman’, <www.newsrunner.com/archive/NW050396.HTM> (visited 28 July 2005). 55

Bening, ‘Ghana’, supra note 38, at 169.

56

‘Techiman Conflict: Deserters Lose Livelihood’, The Ashanti Independent, 11 March 1996, at 3.

Finnish Yearbook of International Law (Vol. XV, 2004) 76 __________________________________________________________________ By June 1996 the residents of Buoyem still faced total blockade by Techiman and socio-economic activities in the town and the surrounding communities were seriously disrupted. The four vehicles that plied between Buoyem and Techiman were burnt and all the schools in the town were closed down as the teachers had fled since the violence. By the end of September the situation in the Techiman area was still tense and the people of Buoyem found it extremely difficult to move about freely and imminent famine in the area could not be ruled out. … More than 2,000 people had been internally displaced, mostly from Buoyem and Tuobodom.57

According to my information, the dispute is still ongoing and no quick solution about the control of the villages can be expected. The relations between the BrongAhafo Regional House of Chiefs and the Asantehene have remained frosty. For instance, in 1999 when Opoku Ware II passed away, it was reported that the BrongAhafo Regional House of Chiefs had not received an invitation to his funeral, while all the other regional houses in Ghana had received one. However, almost all BrongAhafo chiefs had been ‘customarily notified to attend the funeral individually and were placed under various divisions in Ashanti’.58 Some refused to attend ‘on the account of the fact that they did not understand why they should be asked to move with some particular chiefs in Ashanti’.59 The form of invitation and the ‘seating order’ of the funeral were based on the relations of overlordship and seniority and thus they had become a very political matter. The Takyiman case directly contradicts notions that African chiefs have to ‘have recourse to foreign models of the state’ in order stay politically relevant.60 Such notions are based on the assumption that ‘African peoples and leaders cannot fall back upon the legitimating force of traditional institutions, because the obvious differences in scale and organization of the modern African state, not to mention the ethnic, linguistic, and cultural diversity of most contemporary African states are too significant to allow that’.61 In fact, it is the government, which finds itself sidelined merely as the restorer and upholder of peace. The legitimising principles brought up in the dispute have to do with ancestral obligation, clanship, patrikin, marriage, the difference between the indigenes and the conqueror, and divine kingship, which are alien concepts to the post-colonial government. The crucial 57

Bening, ‘Ghana’, supra note 38, at 174.

58

Kwame Asare Boadu, ‘Let’s improve Ashanti, BA House of Chiefs ties’, Daily Graphic, 29 April 2000.

59

Ibid.

60

Richard Sandbrook, The Politics of Africa’s Economic Stagnation (Cambridge University Press: Cambridge, 1985). 61 Maxwell Owusu, ‘Rebellion, Revolution, and Tradition: Reinterpreting Coups in Ghana’ 31 Comparative Studies in Society and History (1989) 372-397 at 377.

‘My Solemn Responsibilities to My People’ 77 __________________________________________________________________ relationships between the ruler and his subjects and land, on the one hand, and between two rulers, on the other, are not defined according to laws of the postcolonial state, but according to genealogies and histories.

Chieftaincy and the Political Imagination Apart from the political institutions and the rules governing them, ideas related to chieftaincy have a very central role in the political imagination of the contemporary Asante (and Ghanaians). The concept of political imagination is from Jonathan Spencer and it refers to the ‘different way in which people have identified, created or reacted to an area of life and a set of practices they themselves refer to as “the political”’.62 In a similar vein a Ghanaian anthropologist, Maxwell Owusu, has argued that any African political phenomena cannot be understood, if ‘the central role of traditional beliefs and practices, indigenous political ideology, attitudes and outlooks’ is ignored. Hence a due account has to be given to the ‘total cultural setting’.63 According to him, for the majority of the Ghanaians terms like ‘capitalism’, ‘socialism’, ‘right’, and ‘left’, which have originated in the industrialized West, are not a part of everyday political vocabulary. They are perceived as abstractions or inventions created by the intelligentsia that do not apply to local circumstances. They are not taken for granted as chieftaincy is.64 In his own works Owusu has shown how both power seekers and power holders have ‘manipulated and exploited widely shared elements of the traditional political cultures … to provide charters for contemporary reform and even radical transformation of society’.65 For instance, the military coups that followed one another in Ghana throughout the 1960s and 1970s were very often legitimated by references to the relationship between chiefs and their subjects. Traditionally, in Akan culture the chief holds his office in fiduciary capacity and can be deposed at any time if he has committed a definite offence or if he has become unpopular among his subjects. This, of course, is in sharp contrast with the ‘modern liberal democratic practice, where bad leaders are tolerated until the next election’.66 The coups, which expressly violated the latter principles, were legitimated according to the former. Ousting the 62

Spencer, ‘Post-Colonialism and the Political Imagination’, supra note 33, at 4 (italics in the original).

63

Owusu, ‘Rebellion, Revolution, and Tradition’, supra note 61, at 372.

64

Maxwell Owusu, ‘Tradition and Transformation: Democracy and the Politics of Popular Power in Ghana’, 34 The Journal of Modern African Studies (1996) 307-343 at 316-317. 65

Owusu, ‘Rebellion, Revolution, and Tradition’, supra note 61, at 373.

66

Ibid., at 378-379.

Finnish Yearbook of International Law (Vol. XV, 2004) 78 __________________________________________________________________ president was seen to be a part of ‘the oldest and most treasured tradition of the people of Ghana’.67 According to Owusu, ‘all the different types of military regimes of Ghana … have exploited or manipulated the symbols and values of chieftaincy, perhaps the most powerful single source of legitimation’.68 For instance, after the overthrow of the civilian government led by K. A. Busia by General I. K. Acheampong in 1972, ‘the new military rulers and chiefs and peoples in various local communities engaged in symbolic mutual exchanges and pledges of support and cooperation, amidst the ceremonial slaughtering of sheep and pouring of libation to ancestors, and taking of honorary chieftaincy titles by the rulers’.69 This phenomenon is by no means limited to military rule. The civilian administration can provide numerous examples of similar ways of seeking legitimation: using ceremonial swords in presidential inaugurations, writing chiefly praise poems and drum histories about the careers of the politicians, and so on. The chiefly symbolism can be found in very central places. Just one look at the emblems of the two major political parties of Ghana today is very revealing. The Asante based NPP (New Patriotic Party), now the ruling party, has the elephant (]sono) in its emblem, which is an old Asante symbol of the wealth of the Kingdom. The opposition party, NDC (National Democratic Congress), has the chief’s umbrella (akatamanso) as its symbol. It has to be remembered that in a country like Ghana, where a significant part of the population cannot read or write the official language, these symbols are far more important than the English names of the parties. Even the first head of state, Nkrumah, who was well known for his anti-chief stances and who saw contemporary traditional leaders merely as clients of the colonial administration supported by the system of indirect rule,70 relied heavily on chiefly symbolism. For instance, he adopted a chiefly appellation, Osagyefo ], ‘Redeemer through war’, even though he had never actually redeemed anybody through war as the chiefs and kings of pre-colonial era were considered to have done. The full title he most often used was ‘Prime Minister Osagyefuo Dr. Kwame Nkrumah’, which referred to his position in the government, his education, but also to his self assumed identity as a traditional leader. What Owusu’s studies show is that the ways in which the Ghanaians perceive such things, as ‘presidency’, ‘democracy’, and ‘representation’, are connected in a very concrete sense to chieftaincy. If the Ghanaians think and talk about politics in 67 The quotation is from a radio broadcast by Lieutenant-General Ankrah in February 1966 after the Ghana Armed Forces and the Ghana Police Service had toppled the Nkrumah regime. Ibid., at 378 (italics in the original). 68

Ibid., at 392.

69

Ibid.

70

Nkrumah, ‘Africa Must Unite’, supra note 26, at 63-64.

‘My Solemn Responsibilities to My People’ 79 __________________________________________________________________ general by using concepts of the traditional political system, then it is also in the interest of the politicians to refer to similar concepts and ideas. My own experiences are in conformity with Owusu’s findings. For example, during the presidential elections of 2000 I heard a lot of people talk about the presidency as a ‘stool’: ‘are we giving the stool to X?’, ‘should the stool be taken away from Y?’, and so on. I once even witnessed a conversation, where one party claimed that Kuffuor (the NPP presidential candidate) cannot win the elections because Komfo Anokye had prophesized (or decreed) that no Asante cannot assume any office higher than the office of the Asantehene. Since Kuffuor was an Asante, he could not be elected. The objections of the other party were twofold. First, he pointed out that such military rulers as the generals A. A. Afrifa and Acheampong had actually been Asante. Second, he asked ‘who says that this [the president’s] stool is higher than that [the Asantehene’s] stool? After eight years the president has to step down, but Otumfuo has the Golden Stool and he can keep it as long as he lives!’ Such instances illustrate how in people’s thoughts and speech the two kinds of institutions are given meanings that are not consistent with the normative bases of the institutions. To reformulate Malinowski’s concepts, on the level of ideas, one can here see how ‘native chiefship’ has a direct impact on its ‘Western counterpart’.71 One important factor is also the persistence of the ideas about the supernatural as the source of all power and sacrifice as a means to obtain it. In his study of the effects of colonial rule on Asante chieftaincy Busia discussed the ways in which ‘the chief’s religious position is challenged by Christianity’. He noted that even though the chief performs his ritual duties as his predecessors have done, ‘the libations and sacrifices he offers have lost their full significance for some of his Christian subjects, who no longer believe that the crops will fail or that misfortune will befall the tribe if the sacrifices to the ancestors are not performed’ 72. In Busia’s time Christianity was spreading and nowadays it can be said that it is the dominant religion in Asante. Although the presence and visibility of Christianity is very strong in southern and central Ghana, its relation to the traditional belief system is not unambiguous. In modern Asante one is very likely to meet devoted Christians who, nevertheless, believe in the existence of spirits, ghosts, and witches, or regular churchgoers who also consult a ‘fetish priest’ from time to time. Moreover, many Christian sects have adopted practices, such as witch finding, that have been mostly associated with

71

Malinowski, ‘The Dynamics of Culture Change’, supra note 23, at 65.

72

Busia, ‘Position of the Chief in the Modern Political System of Ashanti’, supra note 19, at 197.

Finnish Yearbook of International Law (Vol. XV, 2004) 80 __________________________________________________________________ traditional religion. Charles Piot has witnessed a related phenomenon in the neighbouring country of Togo.73 In her study of the history of Christianity among the Ewe of eastern Ghana, Birgit Meyer observed that in the ‘Ewe’s encounter with Pietist missionaries, conversion did not bring about what professional theologians and social scientists tend to expect, namely rationalization and disenchantment’. 74 On the contrary, the traditional religion was associated with the devil and through that to the evil, problematic, and confusing things in life. Hence, the old gods did not vanish from the lives of the Christian Ewes. In a very interesting way the missionaries proved the existence of the indigenous gods by demonizing them. 75 This applies also in various ways to the Asante. The local deities and the ancestral spirits have not vanished; they are still there. It is just that nowadays more and more people will say that they are ‘pagan gods’ or ‘they can do so many bad things’. They are still understood to be agents of power, although the ideas about the nature of their powers have changed. Despite the fact that the values have changed, the fundamental idea that power transcends human agency and that it can be obtained through sacrifice is still valid to the Christian Asante. I have talked to royals who are so-called born-again Christians and who therefore refuse to become chiefs. On the one hand, they consider sacrificing to the ancestors and gods a ‘pagan’ practise, but on the other, they cannot imagine a chief who does not sacrifice. When I once asked such a person whether he would like to become a chief, if he would not have to sacrifice, the answer was: If you are a chief, you have to sacrifice. That wouldn’t be chieftaincy anymore. That would be something new, something else. I don’t know. If such a new chieftaincy would be created, maybe I could think about it. But you have to understand that it would not be the same thing anymore.

A ruler has to be powerful in order to rule and in order to get power he has to consult the supernatural. In case of the chiefs with their blackened ancestral stools and shrines of the deities this is unquestionable. Even those who consider sacrificing repugnant understand that it is the chief’s way of acquiring power and thus indispensable to him. The interesting thing is that this idea is extended to modern rulers as well. They are also considered to have an enhanced spiritual backing. There are numerous 73 Charles Piot, ‘An African Postcolony in the Age of Empire’, 29 Journal of the Finnish Anthropological Society (2004) 20-27 at 21-22. 74

Birgit Meyer, Translating the Devil: Religion and Modernity among the Ewe in Ghana (Africa World Press: Trenton, 1999) at 110. 75

Ibid., at 310-311.

‘My Solemn Responsibilities to My People’ 81 __________________________________________________________________ stories about politicians obtaining ‘jujus’ that make them bullet-proof, knife-proof, immune to traffic accidents, rich, and so on. Similarly, their relationships with certain traditional priests, pastors, herbalists, and the like are a popular topic of gossip. Murders, suicides, mutilations, and other violent crimes are frequently associated with human sacrifices in the popular press and very often there is a link made to politics. Of course, one can argue that much of this is just gossip and sensationalism, and hence mostly products of human imagination, but what is important is that these stories are significant, understandable, and shareable to people who tell and re-tell them. And what give them vitality are the traditional ideas about power, leadership, and the supernatural. They are still valid to the contemporary Asante, although they have new emphasis and connotations. Naturally, the presidents, ministers, or MPs are not divine kings, but some of the ways in which they are thought and talked about by ordinary Ghanaians have to do with the ideas about divine kingship. Therefore, although chiefs and politicians belong institutionally and normatively to entirely different categories they can both be seen on a higher, cosmological, level as people having power. Finally, the idea of political imagination connects to the question of how do the Asante people (or Ghanaians) themselves perceive the realm of power and politics. Namely, when studying politics, one has to also pay attention to indigenous ideas about the origins and nature of power and leadership. The system of cultural logic that fuels the political imagination of the people also gives chieftaincy its vitality and meaning. Hence, it continues to exist despite major changes in Ghanaian society. Its flexibility and adaptivity, and most importantly its rootedness in the society and culture, have secured it, even in those times when it has been in conflict with the colonial and post-colonial states.

Narcissistic Law: Legal Fictions and the Law of the People’s Republic of China Samuli Seppänen *

Introduction This article examines legal fictions through which foreigners perceive the legal system of the People’s Republic of China (PRC). Regardless of what one thinks of the PRC judiciary, it should appear plausible that one’s views may have been influenced by particular ideologies, theories and biases. One should also be able to accept that these views may not be suitable for whatever one’s interests in the Chinese legal system are. The article builds on Edward Said’s views on the Occident and the Orient, which are and are not real at the same time: ‘One ought never to assume that the structure of Orientalism is nothing more than a structure of lies or myths which, were the truth about them to be told, would simply blow away ... Orientalism ... is not an airy European fantasy about the Orient but a created body of theory and practice in which, for many generations, there has been a considerable material investment.’ 1 In the legal field, the manifestations of this Orientalism – or Legal Orientalism2 – have varied at different times. The present model of Orientalism is connected to the rise of liberal rule of law theories in the late 1980s and 1990s. The article derives the concept of ‘legal fiction’ from the assumption that conceptions of law cannot be attributed to any single verifiable reality. Here legal * Research Fellow, Helsinki University, Erik Castrén Institute of International Law and Human Rights; LL.M. Candidate, Harvard Law School. The article is partly based on a research project on the resolution of foreign-related commercial disputes in the People’s Republic of China. See, Samuli Seppänen, Commercial Disputes and Their Resolution in the People’s Republic of China (Erik Castrén Institute of International Law: Helsinki, 2005). Let me thank Martin Björklund, Päivi Leino-Sandberg, Juha Karhu, Jan Klabbers, Virpi Koivu, Jarna Petman and Teemu Ruskola for their valuable comments on the article. 1 See Edward Said, Orientalism (Penguin Books: London, 2003) at 6. 2 See Teemu Ruskola, ‘Legal Orientalism’ 101 Michigan Law Review (2002) 179-234.

Finnish Yearbook of International Law (Vol. XV, 2004) 84 __________________________________________________________________ fictions do not merely connote abstract legal concepts, but also more fundamental conceptions of the nature and possibilities of law. The word ‘fiction’ is not used in a derogatory way, although many of the assumptions presented here can be criticized from a variety of perspectives. The article employs the concept of the ‘liberal rule of law’ doctrine or theory to describe an ideal legal system in which objective and determinate legal concepts enable free rational action within a hierarchical normative order. Like the Orient and the Occident, the liberal rule of law theory does not materialize anywhere in the world. Its unarticulated existence can only be seen in the background of some policy guides and academic writings. Similarly, the concepts of ‘Western’ or ‘Occidental’ law are used to connote an ideal model of European and Anglo-American law that is constructed in relation to the law of the ‘Orient’.3 In this article, ‘legal realism’ refers to a contemporary research approach within foreign studies of the Chinese legal system, which focuses on Chinese legal practices instead of Chinese legal norms. The relationship between this form of legal realism (if it is legal realism) and other historical and contemporary legal realistic approaches is paradoxical. In the Chinese context, legal realism could even be called ‘Chinarealism’, as it is so different from its origins.4 The concept of legal realism is, nevertheless, employed in the article, since it occurs in foreign writings on Chinese law and suits many self-descriptions in that field. This study assumes that legal fictions necessarily precede all findings in a foreign legal system. This is not to say that foreign law can never be ‘understood’ or that this would only be possible through some form of mystical enlightenment. The article rather suggests that observations on foreign law are not attributable to foreign law itself but to (possibly outdated) views on Western law. More farreaching epistemological contemplations on the relationship between subjectively constructed notions of law and objective reality are outside the scope of this article. Nor does this study aim to conclusively explain what Chinese law or legal reality actually is, or whether such an explanation is even possible. Since the article focuses on the opinions of foreign observers, it does not describe the Chinese response to these opinions. It needs to be emphasized that the article does not seek to dispute the findings of the legal realist view as a whole. One has to accept, for instance, that the non-established linguistic conventions of the Chinese judiciary make the PRC normative system appear more ‘on the move’ (and, if the word needs to be used, less ‘orderly’) than the legal system of, say, Finland.

3 The nature and pedigree of Western law are diverse and can be told in various ways. See P.G. Monateri, ‘Black Gaius: A Quest for the Multicultural Origins of the “Western Legal Tradition”’, 51 Hastings Law Journal (2000) 479-555. 4 I thank Teemu Ruskola for this point.

Narcissistic Law 85 __________________________________________________________________ This article first describes general discussion on the rule of law and China making the point that, for Western jurists, China works rather like the pond in which Narcissus saw his reflection and fell in love with himself. The article then presents the legal realist approach to the PRC legal system, which can be taken for the prevailing view on Chinese law. The article proceeds to examine assumptions or legal fictions from which the realist view arises and tries to assess their role and place in the legal interaction between foreigners and China. The myth of Narcissus is presented as an allegory that has multiple meanings: some of these, but not all, are explored in the article.

China as a Narcissus’s Pool China’s continuing economic reforms and its accession to the World Trade Organization (WTO) have evoked wide interest in the country’s legal system. Legal co-operation between Chinese and foreign governments has been intensive. Academics have produced an impressive bulk of literature on the nature of the Chinese legal system and foreign businesses have made pragmatic day-to-day analyses of Chinese law, trying to assess how much they can rely on Chinese foreign investment legislation, or how they could best protect their intellectual property rights. Manufacturers have had to learn to cope with the Chinese taxation system and multinational paper companies have faced the realities of Chinese anti-dumping legislation.5 The discourse on the Chinese legal system has mostly revolved around the concept of the rule of law. Western States and international organizations – among them the United Nations Development Programme (UNDP)6, the World Trade Organization (WTO)7 and the International Monetary Fund (IMF) 8 – have urged China to adopt a strong and reliable legal framework in order to accelerate (or For a practically minded presentation of Chinese law, see Freshfields, Bruckhaus & Deringer, Doing Business in China (Juris Publishing: Huntington, 2003). For standard-setting texts on the Chinese legal system, see, Stanley Lubman, Bird in a Cage: Legal Reform in China after Mao (Stanford University Press: Stanford, 1999) and Randall Peerenboom, China’s Long March toward Rule of Law (Cambridge University Press: Cambridge, 2002). 6 See United Nations Development Assistance Framework for the People's Republic of China (2001-2005) (UNDP: Beijing 2000) at 9-10, and 1999 China Human Development Report. Transition and the State (China Financial & Economic Publishing House: Beijing, 1999) at 92. 7 See Report of the Working Party on the Accession of China, Compilation of the Legal Instruments on China's Accession to the World Trade Organization (Law Press China: Beijing, 2001) at 777. 8 See, for instance, ‘Meeting the Challenges for the Chinese Financial Sector: What Have We Learned from Other Countries?’, Stefan Ingves, Director, Monetary and Exchange Affairs Department, International Monetary Fund, Second China Financial Forum, Beijing, China, May 15-16, 2002. Reproduced on the IMF website: <www.imf.org/external/np/speeches/2002/ 051502.htm> (visited 27 December 2004). 5

Finnish Yearbook of International Law (Vol. XV, 2004) 86 __________________________________________________________________ stabilize) its ongoing social transformation. The academic world has been more diverse in its opinions: while some commentators have hailed the legal reforms as at least an impending success,9 others have been cynical about the nature and the possibilities of the rule of law in China.10 Despite the controversy about the actual state of the Chinese legal system – its effectiveness, impartiality and objectivity – and its possibilities in transforming Chinese society, for the majority of the academics, the direction of the reforms is clear: China is, without question, catching up with the West. Today’s Chinese law is ‘primitive’ compared with that of the ‘developed’ West. 11 Like a caterpillar, China is going through a period of ‘transition’, in its journey to ‘modern’, Western-like society. Indeed, China is a bird in a cage, which will fly far when the gate is opened.12 The narrative of development has also a long tradition among Chinese intellectuals who have employed such rhetoric since the Opium War13. It can also be argued that, without a point of comparison, one is bound to present mere relativist truisms: Chinese law is Chinese law, Western law is Western law, and never the twain shall meet. Western commentators, nevertheless, run a risk of writing more about themselves – and their hopes about themselves – than about China. For centuries, Europeans from all walks of life, representing ideologies from the Enlightenment to Communism, have employed China to bolster their own standing in Europe’s internal debates. Writing at the height of the Chinoiserie and the sinophilia associated with the artistic movement, Voltaire referred to China as a positive example to

9 ‘[I]t is likely that current trends toward establishing an instrumental, positive rule by law will continue.’ See James Hugo Friend, ‘Foreword: The Rocky Road toward the Rule of Law in China: 1979-2000’, 20 Northwestern Journal of International Law and Business (2000) 44-115 at 109. 10 Randall Peerenboom has argued that only ‘thin versions’ of the rule of law are attainable for China. These focus on the efficacy of the legal system in stead of its legitimacy. See Peerenboom, China’s Long March, supra note 5, at 102. See, also, Pitman B. Potter, ‘The Chinese Legal System: Continuing Commitment to the Primacy of State Power’ 159 The China Quarterly (1999) 673-683 at 683. 11 James Hugo Friend quotes Stanley Lubman as follows: ‘Although primitive by Western standards, “law has gained more importance than it has ever possessed in the Chinese history”’. See Friend, ‘Foreword: the Rocky Road’, supra note 9, at 381. 12 This is, perhaps, the metaphor that Stanley Lubman seeks to capture with the title Bird in a Cage: Legal Reform after Mao. See Lubman, Bird in a Cage, supra note 5. 13 For the 19th century reform movements, see, e.g., Jonathan D. Spence, The Search for Modern China (Hutchinson: London 1990) at 194. Maoist China continued to make use of the development narrative, and so has the present administration. An editorial in the People’s Daily, for instance, cheered China’s accession to the WTO enthusiastically: ‘[China’s accession to the WTO] is a major event of historic significance in China’s modernization drive, it will certainly exert important and far-reaching influence on China’s economic development and social progress’. See ‘A Major, Historic Event in China’s Reform and Opening Process’, People’s Daily, 13 November 2001.

Narcissistic Law 87 __________________________________________________________________ criticize his contemporary Europeans. 14 Hegel, on the other hand, made use of the autocratic Chinese Empire to demonstrate how the Weltgeist had moved on from the East to the West to bring about the freedom of all men.15 Karl Marx thought that the Taiping rebellion was the beginning of the general crisis of the 19th century industrial system that he had predicted,16 whereas Max Weber did not find modern legal rationality in China.17 China has continued to occupy its role as the pool of hopes and fears in more recent days. The supporters of economic liberalism have seen the ‘new’ new China as evidence of the ever-beneficial universalism of market economy and trade liberalization. The opponents of the view have argued just the opposite.18 What commentators on China’s economic and legal reforms share in common is their commitment to their personal – overt or latent – background ideologies. China acts as a kind of Narcissus’s pool for foreign observers: generations of Westerners have looked into the Oriental spring and fallen in love with their own reflections. This might be the unavoidable consequence of all perception, as the myth of Narcissus suggests, but for a Western observer China is an especially deluding pond. According to the received perception, its self-sufficient culture has continued to exist for thousands of years without much contact with the West. China’s reflective properties are partly due to the complexity of modern Chinese society. Chinese social indicators seem to go every way, statistics are thought to be manipulated and coherent information is difficult to obtain. Moreover, all sources of information appear to have their own agendas – and forces influencing society are myriad: privileged party cadres, Western and Chinese human rights activists, students and intellectuals, foreign and domestic businessmen benefiting from the 14 In his Philosophical Dictionary Voltaire provides the following passage on the Chinese legal system: ‘The constitution of their empire is the only one entirely established upon paternal authority; the only one in which the governor of a province is punished, if, on quitting his station, he does not receive the acclamations of the people; the only one which has instituted rewards for virtue, while, everywhere else, the sole object of the laws is the punishment of crime; the only one which has caused its laws to be adopted by its conquerors, while we are still subject to the customs of the Burgundians, the Franks, and the Goths, by whom we were conquered.’ See William F. Fleming (trans.), The Works of Voltaire, A Contemporary Version: Volume IV (E.R. DuMont, New York: 1901), available at (visited on 17 January 2005). 15 See Georg Wilhelm Friedrich Hegel, Vorlesungen über die Geschichte der Philosophie (Verlag Philip Reclam jun.: Leipzig, 1982) at 93-97 and 111. 16 See Dona Torr, Marx on China, 1853-1860: Articles from the Articles from the New York Daily Tribune (Gordon Press: New York 1975), quoted in Jonathan D. Spence, The Search for Modern China (Hutchinson: London 1990) at 182. 17 See Max Weber, The Protestant Ethic and the Spirit of Capitalism (Unwin University Books: London, 1970) at 2. 18 For the discussion, see Donald C. Clarke, ‘Economic Development and the Rights Hypothesis: The China Problem’, 51 American Journal of Comparative Law (2003) 89-111 at 89.

Finnish Yearbook of International Law (Vol. XV, 2004) 88 __________________________________________________________________ new economy, the unemployed, migrant workers, the People’s Liberation Army (PLA), minority nations, foreign arbitrators and the overseas-Chinese. As a result, China resembles an incomprehensible piece of conceptual art, to which one can attach any meaning one wishes. This does not signify that all political and ideological meanings would be equal. There is a strong structural tendency to regard China as the hierarchically lower opposite of the West. This cultural phenomenon that Edward Said has described as Orientalism, and which Teemu Ruskola has renamed as Legal Orientalism in the legal context, sees the Orient as ‘irrational, depraved (fallen), childlike, “different”’ and its opposite, the equally fictional Occident as ‘rational, virtuous, mature, “normal”’.19 The Legal Orientalist finds that Chinese law lacks something that is inherently present in Western law. At times this lacking element is ‘formal legal rationality in the Weberian sense, while at other times it is a liberal legal order that constrains the state in a particular way – a configuration often referred to as “the rule of law.”’20

Critique, Idealism and the “Legal Realist” View Foreign scholars studying the Chinese legal system usually define themselves as legal realists.21 For one reason or another, a dogmatic presentation of constitutional guarantees, administrative review procedures, and of the finer points of tax law, seems exceptionally irrelevant in the Chinese context. Despite being an openly methodological choice, the legal realist approach is often surprisingly normative. Practically-minded fact books of foreign law offices and other legal realist accounts on the PRC legal system provide a clear image of an ideal legal system. The texts show through negations that law should be apolitical, objective, efficiently enforced, just and transparent. 22 The legal realist view on Chinese law can be read both as critique of the PRC legal system and as an ideological statement of what law ideally is. Foreign critique of the PRC legal system comes in many forms. One group of arguments focuses on those aspects of the Chinese ‘culture’, which allegedly prevent See Said, Orientalism, supra note 1, at 40. See Ruskola, ‘Legal Orientalism’, supra note 2, at 182. For a presentation on liberalism, see Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Lakimiesliiton kustannus: Helsinki, 1989) at 56-68. 21 See Donald C. Clarke, ‘Puzzling Observations in Chinese Law: When is a Riddle Just a Mistake?’ in C. Stephen Hsu (ed.), Understanding China’s Legal System: Essays in Honor of Jerome A. Cohen (New York University Press: New York, 2003) 93-121 at 93. 22 See, for instance, Baker and McKenzie’s analysis on the Chinese legal system and its relationship to WTO Treaties, in Baker and McKenzie, Guide to China & the WTO (2001) at 6-7, 12-14 and 18-21. 19

20

Narcissistic Law 89 __________________________________________________________________ the country from acquiring a rule of law system. According to the critics, China has been a duty-based despotic society for thousands of years. The Chinese Communist Party (CCP) is considered to continue to exercise despotic influence on the legal system. Technical failures of the PRC legal system provide another source of critique. The Chinese normative order is regarded as chaotic and Chinese laws are considered so open-ended that they enable arbitrary and protectionist rulings. The legal system is considered to be underdeveloped also at the material level: half of the judges are reputedly ex-PLA soldiers or civil servants who have taken a few courses in law. Corruption is epidemic and, since China remains a poor, deprived developing country, many of its courts lack basic infrastructure.23 These observations are certainly not out of place. There is plenty of evidence indicating that the PRC judiciary does not have similar well-established practices and institutional standing as the judiciaries of, say, Northern European countries. Reports on the coercion of private lawyers by authorities are not unheard of. 24 Judges are also reportedly weak: in a typical newspaper article, the South China Morning Post reported of a People’s Court judge who was dismissed by the Hunan People’s Congress after he had ruled in favour of a foreign company, arguing (correctly) that China’s international obligations prevailed over domestic PRC legislation.25

Historical and ‘Cultural’ Obstacles A number of Western commentators argue that China’s historical and cultural background does not support the birth of a rule of law system. The rule of law principle is, according to this perception, tied to the historical development of certain Western societies and cannot be exported to countries with completely different social realities. Although there are Asian societies, like Japan and Taiwan, which have adopted Western-style political and legal systems, the cultural argument points out that this has only occurred after a long and painful process. Besides, the argument runs, the grassroots legal reality in these democracies does not resemble that of the West since their judiciaries remain at the outskirts of society. Cultural arguments are also present in specific fields of legal research, which focus on, say, As Randall Peerenboom notes, ‘[m]any courtrooms in poor rural areas consist of nothing more than a desk and a few chairs’. See Peerenboom, China’s Long March, supra note 5, at 294. 24 See Peerenboom, ‘Legal Profession’ in Doing Business in China, supra note 5, § I-3.01[3]. 25 See ‘Legal system taxed by WTO; The opacity of the regulatory framework and powerful local governments will test China’s courts’, South China Morning Post, 21 April 2004. The newspaper article also reported of an ‘astonished’ legal expert from the Asian Development Bank who had been flown into China and found Chinese judges ‘very bright’ and certainly aware of the ‘notion of an independent judiciary’. 23

Finnish Yearbook of International Law (Vol. XV, 2004) 90 __________________________________________________________________ the PRC Contract Law and the Chinese intellectual property rights (IPR) regime. It has, for instance, been argued that the Chinese conception of contracts is influenced by the ‘Daoist aversion of order’ and by the ‘cyclical’ time perspective of the Chinese.26 Similarly, problems with Chinese IPR enforcement are allegedly due to the Confucian preference for ‘personal development’ instead of ‘personal reward.’27 Owing to Hegel and other 19th century Western commentators, Imperial Chinese society was and, among some commentators, still is perceived as a despotic system. The Emperor was at the apex of the hierarchy and the paternalist structure reproduced itself on the lower steps of the social ladders. The received perception on the Chinese legal system maintains that traditional Chinese society never tolerated the concept of individual rights.28 The standard account of Chinese legal philosophy – which is present in nearly all treatises on the Chinese legal system – distinguishes between two philosophical schools: the Confucians and the legalists. The Confucians are seen to have strived to govern society by moral principles instead of law, whereas the short-lived legalist school is thought to have stood for the uncompromising mechanic application of law. The Confucians reputedly gained the upper hand in the political battle between the two schools, but the legalist tradition is seen to have continued in Confucian conceptions of law.29 Also the Chinese regulatory culture has been interpreted as a continuation of the Confucian patrimonialist bias against law.30 Cultural claims about the PRC legal system are not limited to Western observers. Chinese intellectuals, the PRC government and even laymen have sought to deny the universality of international human rights obligations and the rule of law doctrine through the so-called Asian values discussion.31 Although some have regarded the Asian values discourse as a cynical attempt to justify limitations on civil and political rights, others have pointed out that the argument would not be

See, e.g., Patricia Pattison and Daniel Herron, ‘The Mountains Are High and the Emperor is Far Away: Sanctity of Contract in China’ 40 American Business Law Journal (2003) 459-510 at 459. 27 See, e.g., Jill Chiang Fung, ‘Can Mickey Mouse Prevail in the Court of the Monkey King? Enforcing Foreign Intellectual Property Rights in the People’s Republic of China’, 18 Loyola of Los Angeles International and Comparative Law Journal (1996) 613-639 at 623 and 637. 28 See, e.g., Wang Chenguang, Zhang Xianchu (eds.), Introduction to Chinese Law (Sweet & Maxwell Asia: Hong Kong 1997) at 7. 29 See, e.g., Eric W. Orts, ‘The Rule of Law in China’, 34 Vanderbilt Journal of Transnational Law (2001) 43-115 at 55-56. 30 See, e.g., Pitman B. Potter, ‘Globalization and Economic Regulation in China: Selective Adaptation of Globalized Norms and Practices’, 2 Washington University Global Studies Law Review (2003) 119-150 at 124-125. 31 See Karen Engle, ‘Culture and Human Rights: the Asian Values Debate in Context’, 32 New York University Journal of International Law and Politics (2000) 291-333 at 311. 26

Narcissistic Law 91 __________________________________________________________________ employed time and again if it did not resonate with popular attitudes in Asia.32 Even though the Asian values discussion has since the 1990s subsided, cultural relativist arguments remain central for official PRC policies. The current PRC jargon talks about building Chinese-style socialism and the rule of law.33 In a more elevated form, cultural arguments regard all legal concepts as unique products of particular legal cultures. According to the legal theorist J. C. Smith, modern legal constructs are attributable to Western jurisprudence, Roman civil law and ultimately to the abstractions of Greek mathematics. In his perception, traditional (and, apparently, all non-Westernized societies) could not support legal thought. As J.C. Smith states, ‘[n]ot only are constructs absent from the legal systems of primitive and ancient cultures, but there is no way by which the concepts of modern law can be adequately expressed in their language systems.’34 Applied to the traditional Chinese legal system, such a view signifies that Chinese law lacked the necessary elements of modern law. The problem with cultural arguments is that on closer examination they tend to break into unjustified assumptions and problematic generalizations. One can never trust in that a cultural argument is devoid of political, religious or moral objectives. The 19th century Western conception of what constituted Chinese culture was influenced, on the one hand, by Orientalist idealism which presented the Orient (unrealistically) as the opposite of the ‘democratic’ Occident and, on the other hand, by the equally unrealistic notion of the Chinese ruling class about their importance in Chinese society. 35 In other words, the image of Chinese and Western cultures was a result of political and ideological debates and therefore not attributable to objectively verifiable qualities of the respective societies as such. This fact is highlighted by the way in which the image of China changed from the 18th century to the 19th. Whereas the writers of the Enlightenment saw China as a role model for the West, the theorists of the imperialist 19th century sought to place the Orient into a disadvantaged position in relation to the West.36 Recent studies and archaeological findings of tomb texts and other documents suggest that law played a far more important role in traditional China than was See Randall Peerenboom, ‘Globalization, Path Dependency and the Limits of Law: Administrative Law Reform and Rule of Law in the People’s Republic of China’, 19 Berkeley Journal of International Law (2001) 161-264 at 183.

32

33

See PRC Constitution (₼◝ⅉ㺠␀✛⦌⸹㽤) preamble and art. 5.

See J.C. Smith, ‘The Unique Nature of the Concepts of Western Law’ 46 La Revue du Barreau Canadien (1968) 191-225 at 193. 35 See Philip Huang, Civil justice in China: representation and practice in the Qing (Stanford University Press: Stanford 1996) and other literature cited in Ruskola, ‘Legal Orientalism’, supra note 20, footnote 21. 36 See Jonathan Spence, The Chan’s Great Continent: China in Western Minds (Penguin Books: 2000) at 210211. 34

Finnish Yearbook of International Law (Vol. XV, 2004) 92 __________________________________________________________________ previously thought.37 Litigation in civil disputes was not uncommon and county magistrates had a somewhat significant role in traditional communities. Contracts between family members were not unheard of, and commercial codes and customary law governed trade between merchants.38 Also the traditional views on Confucianism, Buddhism and Daoism have become problematic. Unlike previously thought, Confucianism did not encourage imitation but, more like what the Catholic religion did for religious painting in Europe, allowed personal variation within its artistic conventions.39 What is most obviously problematic about Oriental arguments is their image of the Occident: when 18th-century China is compared to 18th- century France, it is by no means clear which society was more ‘under the rule of law’, if one should assume that such a comparison is meaningful. When cultural explanations appear in our contemporary setting, they become even less defendable. Is there really a Western ‘cultural’ conception of copyrights, of exclusive HIV medicine patents and of the patentability of animals? If not, then what does the Western conception of copyrights actually concern?40 It would, thus, seem that cultural arguments need to be understood in their political context. Claims about culture aim to lift politically controversial issues above the public debate through one particular form of rhetoric. Arguments about the ‘Confucian’ characteristic of Chinese DVD pirates seek to confine piracy through labelling it as a culture-specific phenomenon. When one suggests that Chinese culture allows and encourages piracy, one also implies that piracy is not allowed in the Western culture and that IPR protection comes ‘naturally’ to Westerners. Judging by the often heard complaints of the information industry, this hardly seems to be the case.41 In Western societies there is, arguably, as little ‘cultural consensus’ on the permissibility of DVD-copying, music downloading, the

See Susan Roosevelt Weld, ‘Grave Matters: Warring States Law and Philosophy’, in C. Stephen Hsu (ed.), Understanding China’s Legal System: Essays in Honor of Jerome A. Cohen (New York University Press: New York, 2003) 122-179 at 123. 38 See Teemu Ruskola, ‘Conceptualizing Corporations and Kinship: Comparative Law and Development Theory in a Chinese Perspective,’ 52 Stanford Law Review (2000) 1599-1729 at 1618. 39 See William Alford, To Steal a Book Is an Elegant Offense: Intellectual Property Law in Chinese Civilization (Stanford University Press: Stanford, 1995) at 25-29. 40 The question is, of course, rhetoric. For fetishizing the concept of culture through assuming that a culture or a legal culture think and speak in a single unambiguous voice, see Rosemary J. Coombe, ‘Critical Cultural Legal Studies’, 10 Yale Journal of Law and the Humanities (1998) 463-486 at 478-479. 41 The European Union remains on the ‘priority watch list’ of the US Trade Representative together with Indonesia, India and Korea. This is because certain member States of the Union do not provide adequate patent protection for a ‘broad range of biotechnology inventions’. See US Trade Representative, 2004 Special 301 Report, at 16, available at < www.ustr.gov> (visited 17 January 2005). 37

Narcissistic Law 93 __________________________________________________________________ patentability of biotechnical inventions and many other IPR issues as there is in China.42

The Influence of the CCP Much of the criticism of the PRC legal system concerns its overtly political nature. Grand legal theories and policy guidelines find the one party system and the full version of the rule of law incompatible with one another. 43 Researchers generally agree that the CCP regularly interferes with the PRC judiciary. Party policies do not appear to be decisive in normal cases, but they are important in sensitive cases or when the Party’s financial interests are concerned. 44 The Party’s official legal status remains unclear. There are vague references to its ‘guiding role’ in the preamble to the PRC Constitution, but no law governs the Party’s relation to other State organs. The Party enjoys legal immunity in the sense that there are no legal means to subject CCP decisions to judicial review. It is impossible to sue the Party or a person who is acting in the capacity of a Party member.45 The Administrative Litigation Law and the Regulations on Administrative Reconsideration,46 which govern judicial review in the PRC, only apply to State administrative organs, and not to those of the Party. The CCP’s relation to law-making is more complex. In light of foreign studies, the CCP has handed over the legislative process to State authorities. The CCP aims to be a general policy setter rather than a legislative body. The Party’s views on legislative proposals are communicated to the administration through personal ties and Party organs operating in legislative bodies.47 At the general level,

For problematic IPR questions, see James Thuo Gathii, ‘Rights, Patents, Markets and the Global Aids Pandemic’, 14 Florida Journal of International Law (2002) 261-352. 43 See, for instance, CSCE, Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, 5 June-29 July 1990, 29 International Legal Materials (1990) at 1305. For discussion, see Peerenboom, China’s Long March, supra note 5. 44 See Lubman, Bird in a Cage, supra note 5, at 263-264. 45 On the other hand, no law prevents Party members from being sued as private persons. Party members have been sued, e.g., for corruption – a crime that the Party is committed to fight. Then again, commentators report that when crimes of Party members are referred to the PRC judiciary, questions of guilt have already been decided. See Peerenboom, ‘Globalization, Path Dependency and the Limits of Law’ supra note 32 at 202. 42

46

Regulations on Administrative Reconsideration (嫛㟎⮜帽㧰√), art 1-4; PRC Administrative Litigation Law

(₼◝ⅉ㺠␀✛⦌嫛㟎幘幋㽤) art. 2 and 3. See Murray Scot Tanner, ‘How a Bill Becomes a Law in China: Stages and Processes in Lawmaking’ in Stanley Lubman (ed.), China’s Legal Reforms (Oxford University Press: Oxford, 1996) at 44-53; and Murray Scot Tanner, ‘The Erosion of Communist Party Control over Lawmaking in China,’ 138 China Quarterly (1994) 381-403.

47

Finnish Yearbook of International Law (Vol. XV, 2004) 94 __________________________________________________________________ the importance of Party policies is noted in legal writings, although they are not formally recognized as sources of the Chinese normative order. 48 According to Western observers, Party interference is most notable at the municipal level, where local cadres can influence judges of local People’s Courts. At the local level, party officials may also utilize their guanxi (relations) more easily: cases are referred to judges with connections to the litigating parties. At grassroots level, political, economic and judicial powers are intertwined. Judges are appointed by local governments, which also allocate funding for the court system. Foreign commentators note that Party interference is seldom of an ideological nature: Party officials aim at promoting their own local economic interests. 49 The Party’s ideological influence on the judiciary is most visible in the frequent ‘strike hard’ campaigns which have kept, the critics argue, the Chinese criminal process heavily politicized. Another form of criticism towards the PRC legal system discredits the CCP for not being powerful enough. The CCP has not been able to enforce its own version of the rule of law in the country, however thin and mechanic it may be. Numerous large-volume corruption cases tell of the Party’s loosening grip of Chinese society. The fight against corruption is high on the Party’s agenda, as frequent political statements indicate,50 and at the top of the Party hierarchy, the General Secretary has adopted policies that aim to curb corruption from the Party lines.51 Different forms of realistic critique seem to identify a paradox: while the CCP exercises influence over certain issues to such an extent that the legal system looses its autonomy, it fails to implement its policies so effectively as to establish an efficient rule by law system. From the realist perspective, the Chinese legal system appears to be stuck in the middle of uncertainty: the Party is not powerful enough to dictate all the aspects of the judiciary, but its individual members still manage to get their way in single disputes.

48 See PRC Legislation Law (₼◝ⅉ㺠␀✛⦌䵚㽤㽤); Chenguang and Xianchu (eds.), Introduction to Chinese Law, supra note 28, at 23. 49 See, e.g., Stanley Lubman, ‘Bird in a Cage: Chinese Law Reform after Twenty Years’, 21 Northwestern Journal of International Law (2000) 383-423 at 395. 50 See, e.g., People’s Daily, ‘Sunshine Policy to Fight Corruption in China’s Capital’, March 13, 2002; ‘Senior Party Leader on Combating Corruption’, March 7, 2001; and ‘Communist Party Adopts Stricter Rules against Corruption’, May 21, 2001. The People’s Daily is available at the People’s Daily’s English language webpage at <www.english.peopledaily.com.cn> (visited 20 January 2005). 51 See ‘Communist Party to Take Tougher Measures against Corruption: Communique’, People’s Daily, January 28, 2002.

Narcissistic Law 95 __________________________________________________________________

The State – a Subject of Law? The present PRC Constitution differs obviously from the liberal rule of law model in its provisions on the division of powers. In the ideal liberal rule of law model, State authorities are governed by law and the powers of the central authorities are controlled by various means of checks and balances. In the People’s Republic, the highest State organs are not even (or, at least) in principle subjects of the legal system. At the normative level, the situation is in fact the opposite: under the PRC Constitution, the Supreme People’s Court is ‘responsible’ to the National People’s Congress and its Standing Committee. 52 The anti-liberal rhetoric of the PRC Constitution and other legislation opens vast possibilities for critique. The Administrative Litigation Law and the Regulations on Administrative Reconsideration – which govern the restriction of administrative power – can be seen as administrative discipline procedures, the scope of which is limited and enforcement inefficient. Critics argue that the Administrative Litigation Law leaves the true power-basis of the PRC, the CCP, intact, whereas the Regulations on Administrative Reconsideration limit the scope of administrative review notably through the requirement of the exhaustion of administrative remedies.53 Conceptions of legal regulation and the relationship between law and the State have varied considerably during the People’s Republic. Early ‘Mao Zedong thought’ – a less orthodox interpretation of Marxism Leninism – disposed itself rather positively towards law. From the outset, Mao Zedong thought it seemed that law could not prevail over the State: since the Party represented the People and the Party was in charge of the State, the State could not be subjected to any higher normative order. Legal regulation and the judiciary were, however, given a prominent role in the creation of the People’s democratic dictatorship. 54 In the early 1950s new laws were drafted and legal institutions created. This was in line with the developments in the Soviet Union, where legal regulation was not seen as contradictory with the sovereignty of the State and the proletariat: since laws were

52

PRC Constitution (₼◝ⅉ㺠␀✛⦌⸹㽤), art. 128.

53 See Regulations on Administrative Reconsideration (嫛㟎⮜帽㧰√), art. 36, and Pitman B. Potter, ‘The Chinese Legal System: Continuing Commitment to the Primacy of State Power’, 159 The China Quarterly (1999) 673-683 at 676-677. 54 In 1949 Mao Zedong noted: ‘Our present task is to strengthen the People’s state apparatus – mainly the People’s Army, the People’s Police and the People’s Courts – in order to consolidate national defence and protect the people’s interests. Given this condition, China can develop steadily, under the leadership of the working class and the Communist Party, from an agricultural into an industrial country and from a new-democratic into a socialist and communist society, can abolish classes and realize the Great Harmony.’ See Mao Zedong, ‘On the People’s Democratic Dictatorship’, in Selected Works of Mao Tse-tung , Volume IV (Foreign Languages Press: Beijing, 1977) at 411.

Finnish Yearbook of International Law (Vol. XV, 2004) 96 __________________________________________________________________ passed by the State, they were regarded as managerial tools for State organs rather than as remnants of the bourgeoisie State. Purist Marxism, which held that the legal form was irredeemably poisoned by bourgeoisie production relations, was incompatible with the official Soviet legal theory. The Soviet legal theorist Eugene Pashukanis – the only Soviet lawyer that Western theorists such as Lon L. Fuller thought had made a significant influence on social theory 55 – was executed for suggesting this.56 The Orthodox Soviet legal theory upheld the prestige of the legal form by strongly denouncing ‘theories professing to be Marxism, yet representing a crude perversion thereof.’ 57 The popular conception that the pre-reform era PRC was categorically against legal regulation is probably due to the excesses of the Cultural Revolution, when the Chinese judiciary was effectively dismantled.58 Later, PRC ideology has again redefined the relationship between the State and the law. Today it seems that the discussion on the relationship between law and the State has been solved at the ideological level to the advantage of the former. Amendments to the PRC constitution have asserted the private sector as having an equal footing with the State sector and obliged the State to protect private ownership.59 The cryptic statement about the PRC being a country governed in accordance with law (∬㽤㽊⦌, \ĩ fĈzhìguó) is a carefully worded compromise between the contradicting notions of the rule of law, Maoism and market economy.60 China’s integration to the international trade system has subjected the PRC State to foreign legal regimes. On the other hand, the new consensus on the rule of law has attracted criticism from significant Chinese legal theorists. Zhu Suli, the dean of the Peking University, has criticized the official rule of law doctrine, comparing it to the rigid doctrines and blind faith which characterized the Maoist era.61

See Lon L. Fuller, The Morality of Law (Yale University Press: New Haven 1964) at 24. See, in general, Piers Beirne & Robert Sharlet, Pashukanis: Selected Writings on Marxism and Law (Academic Press: London 1980) at 40, reproduced in W.E. Butler, Russian Legal Theory (Dartmouth: Aldershot, 1996) at 229. 57 Andrei Y. Vyshinky, ‘The Foundations of the Marxist-Leninist Theory of State and Law’ in Andrei Y. Vyshinky (ed.), The Law of the Soviet State (Macmillan: New York, 1948) at 15, reproduced in W.E. Butler (ed.), Russian Legal Theory, supra note 56, at 331. 58 Legal institutions had been made ineffective before the Cultural Revolution. See Lubman, Bird in a Cage, supra note 5, at 71. 55

56

59

PRC Constitution (₼◝ⅉ㺠␀✛⦌⸹㽤), art. 11 and 13.

Ibid., art. 5. See Frank Upham, ‘Law and Judges in Chinese Rural Society: A Review Essay of Zhu Suli’s Sending Law to the Countryside’, on file with author.

60 61

Narcissistic Law 97 __________________________________________________________________

Chaotic Normative Order The question of legislative order is essential for the rule of law ideology. Both aspects of the rule of law, the mechanic application of law and the justice-based prudential aspect of the rule of law, seem to call for consistent and predictable laws. In order to be efficient, the mechanic side of law, the rule by law, seems to require a hierarchical and coherent normative order. Rule of law theories and policy guidelines urge governments to impose policies in the form of clear and precise laws and to also follow them . 62 The human-faced side of law also seems to call for a consistent legal system. In the liberal rule of law rhetoric, justice and equality stem from predictability and coherence. From the outset, it is difficult to deny that the present Chinese legislative order is somewhat disorderly, to say the least. Although Chinese jurists have constructed normative hierarchies on the basis of the PRC Constitution and the PRC Law on Legislation,63 the actual sources of normative disorder appear to be immune from legal dogmatism. Regulations that matter the most are often unpublished internal guidelines that practising lawyers have to acquire through their connections with Chinese authorities. These regulations may or may not be in line with upper-level legislation. China’s WTO membership has directed attention to occasions in which local authorities have disregarded national Chinese legislation and WTO obligations. Prior to China’s accession to the WTO, local content requirements were one example of measures that were prohibited by national legislation but required by local administrators.64 The issue was not merely about inefficient flow of information within the Chinese state; there seemed to have been no consensus on the hierarchy of the PRC legal system to begin with.65 The source of indeterminacy in Chinese law is usually attributed to the unsettled division of powers between PRC legislators. For the critics, the power relations between the National People’s Congress (NPC), its Standing Committee and the State Council remain unclear.66 The PRC Constitution delegates powers to the State Council to issue regulations in accordance with the Constitution and

62 See, e.g., World Bank, World Development Report 2002: Building Institutions for Markets (Oxford University Press: New York, 2002) at 118. 63

PRC Law on Legislation (₼◝ⅉ㺠␀✛⦌䵚㽤㽤).

See Baker and McKenzie, Guide to China & the WTO (2001) at 78-79. See Zhu Guobin, ‘Establishment of Legislative Order and China's Law on Legislation’, 33 China Law (2001) at 91. 64

65

See PRC Constitution (₼◝ⅉ㺠␀✛⦌⸹㽤), art. 67(4) which provides powers for the Standing Committee of the National People’s Congress to ‘interpret laws’.

66

Finnish Yearbook of International Law (Vol. XV, 2004) 98 __________________________________________________________________ laws.67 In practice, many significant issues have not been regulated by laws, but by administrative orders or other norms. Opinions of the Supreme People’s Court are a case in point: the Court has given regulations about substantial issues ranging from the interpretation of the PRC Contract Law to the division of property after divorce. The legal status of the Supreme People’s Court opinions is ambivalent – they are not recognized by the PRC Law on Legislation, which lays down the hierarchical order of laws and administrative regulations. The applicable NPC decision concerning the powers of the Court finds that it may give interpretations on concrete issues regarding the application of laws. As a consequence, the normative relationship between the Supreme People’s Court opinions and other legal norms is unclear.68 The vertical division of powers between the central government and local authorities provides another possible source of confusion. The definition of the legislative powers of provincial People’s Congresses in the PRC Constitution states that local regulations may not contradict the Constitution, laws and administrative decisions.69 In practice, provincial regulations differ from national laws in many respects. Power relations within provincial governments are equally blurred: numerous local authorities are equipped with similar regulatory powers as those at the national level. Contradictory rules are also found at the provincial level, where provinces take protective measures to defend their industries against competition from other provinces. The uniform application of laws and regulations is yet another issue. Even when national laws and local regulations do not contradict one another, there is no guarantee that their application would be consistent. Constant legislative re-interpretations by the Supreme People’s Court and other government organs are thought to further complicate the normative system.70

Indeterminate, Irrelevant and Inefficient Legislation Liberal rule of law ideology requires that laws meet certain criteria in terms of their linguistic appearance. All the positive attributes of law – transparency, efficiency, legal certainty – seem to call for clear, precise and objective norms. In criminal law, for instance, the principle of nullum crimen sine lege provides that conduct has to fit the wording of a law in order to constitute a crime. Consequently, criminal laws have to be precise enough to enable subjects of law to avoid illegal behaviour. For a

67

PRC Constitution (₼◝ⅉ㺠␀✛⦌⸹㽤), art. 89.

68

See Lubman, Bird in a Cage, supra note 5, at 282.

69

PRC Constitution (₼◝ⅉ㺠␀✛⦌⸹㽤), art. 100.

70

Peerenboom, China’s Long March, supra note 5, at 239-240.

Narcissistic Law 99 __________________________________________________________________ Western lawyer, the Chinese legislative technique is bound to look alien. Even though the language of recent legislation appears more liberal, Chinese laws still contain outlandish references to ‘malicious conspiracies’ against State interests. 71 The 1999 PRC Contract Law, for example, provides that the parties to a contract shall ‘respect social ethics and may not disrupt the socio-economic order nor impair social and public interests’.72 One of the grounds for invalidating a contract clause is harm caused to social and public interests. 73 It has been pointed out that such formulations suggest that laws are not the final source of behavioural guidance, but that there is a higher normative authority – local regulations for instance – to which behaviour must conform.74 The vagueness of the Chinese legislation is another standard critique against the PRC legal system. Chinese laws are seen to be drafted in broad, indeterminate language that makes use of general principles, omissions and catch-all phrases.75 The indeterminacy of legal norms is deemed to enable administrative organs to interpret laws in an arbitrary manner: local interests are allegedly protected at the expense of, for instance, foreign investors.76 Another source of critique is that rapidly changing laws tend to lose touch with social reality.77 Massive legislative work has flooded China with various laws and regulations, most of which are deemed irrelevant for the bread-and-butter issues of the country. Some laws are too progressive for a developing country and thus undermine the credibility of the whole legal system. The inefficient enforcement of judgements and arbitral awards is also seen to render legal rights and the laws on which they are based irrelevant.78

Little or No Infrastructure Some Western observers have pointed out that, despite progress in the Chinese legal system, the overall picture of the material conditions of the PRC judiciary remains PRC Contract Law (₼◝ⅉ㺠␀✛⦌⚗⚛㽤), art. 7, translation provided by the Supreme People’s Court website, <en.chinacourt.org> (visited 18 January 2005). 72 Ibid. 73 Ibid., art. 52. 74 See Peerenboom, China’s Long March, supra note 5, at 251-252. 75 See Lubman, ‘Chinese Law Reform’, supra note 49, at 391. 76 See Pitman B. Potter, ‘Contract Law’ in Doing Business in China, supra note 5, § I-6.2.03[2]. 77 See Chenguang and Xianchu, Introduction to Chinese Law, supra note 28, at 14. 78 On the enforcement of arbitral awards in China, see Randall Peerenboom, ‘Seek Truth from Facts: An Empirical Study of Enforcement of Arbitral Awards in the PRC’, 49 American Journal of Comparative Law (2001) 249-327; for the enforcement of civil judgments, see Donald C. Clarke, ‘Power and Politics in the Chinese Court System: the Enforcement of Civil Judgments’, 10 Columbia Journal of Asian Law (1996) 1-92. 71

Finnish Yearbook of International Law (Vol. XV, 2004) 100 __________________________________________________________________ grim. China does not have the economic capacity to build a Western-style legal system. China’s economic growth, in general, may be a statistical paper tiger. Reports on the Chinese banking sector indicate that the PRC financial markets are unhealthy. Commentators argue that Chinese companies use old-fashioned techniques and are not able to compete with the outer world. Due to corruption, generous tax holidays granted for foreign companies and inefficient bureaucracy, the government’s tax revenue is minimal. The most pessimistic observers suggest that the country is heading rapidly towards economic and political disorder.79 Even without a general economic crisis, China remains ridden with rudimentary poverty issues. Absolute poverty has significantly decreased, but malnutrition and high infant mortality still affect a large part of the population. According to the United Nations Development Programme, approximately 100 million Chinese live in absolute poverty and some 800 million live in the backward countryside. 80 Especially the Western provinces have been left behind in the race for development. In these areas, the Chinese judiciary operates with scarce resources. The government has tried to improve the qualifications of judges nationally81, but People’s Courts are still largely unable to obtain evidence or enforce judgements.82 The influence of regional diversity on the judiciary is high since the People’s Courts receive their funding from local governments.83

Legal Fictions Many of the legal realist observations on the PRC legal system seem perfectly plausible. It is true that certain significant Chinese laws are technically poor in the sense that their internal contradictions produce interpretative problems, which serve no understandable objectives and seem to result from careless law drafting rather than from the ‘inherent contradictions’ of law.84 Such is the case with references to non-existent legislation within Chinese laws.85 The Chinese judiciary is dependent See Gordon G. Chang, The Coming Collapse of China (Random House: New York, 2001) and ‘Asia’s Argentina?’, Asian Wall Street Journal, 19 June 2002. 80 The amount of people living in absolute poverty depends on the measures employed. The UNPD counts those that have less than one USD at their daily disposal. The Chinese government uses a lower standard. See China 2000: A current perspective by the UN Country Team in China: Common country assessment (UNDP: Beijing, 2000) at 3-4. 81 See ‘Judicial Reform Meets WTO Rules’, People’s Daily, 19 March 2002. 82 See Potter, ‘The Chinese Legal System’, supra note 53, at 677. 83 See Lubman, Bird in a Cage, supra note 5, at 265. 84 See, e.g., Nicholas C. Howson, ‘China’s Company Law: One Step Forward, Two Steps Back? A Modest Complaint,’ 11 Columbia Journal of Asian Law (1997) at 127. 85 See Peerenboom, China’s Long March, supra note 5, at 252-253. 79

Narcissistic Law 101 __________________________________________________________________ on the local administration, judges are appointed for short tenures and left dependent on the political system and, as far as anybody can tell, the poor enforcement rate of civil judgments and arbitral awards makes legal remedies less effective in China than, say, in Finland. What is suspicious about many legal realist descriptions is that they fit almost too neatly in the dichotomies of the liberal rule of law theory. Foreign accounts on the PRC legal system convey a picture of Chinese law that is almost the anti-thesis of the ideal liberal legal system. Even before knowing how the Chinese legal system performs on a given issue, one can formulate a standard critique simply through negating whatever would be ideal in the Occidental legal system. While such presuppositions go unnoticed most of the time, every now and then one comes across obvious lapses in legal realist writings, which indicate that the PRC legal system on the whole is weighted on an unbalanced scale. Explicitly or implicitly, many foreign writings on the Chinese legal system portray the possibilities of law in a more positive light than studies that lack such an international connection. In the domestic Western context, the anomalies of the liberal rule of law doctrine have been well-known at least after the German, French, American and Scandinavian legal realist theories became popular in the early 1900s. In the USA, legal realism became a mainstream approach in the first decades of the 20th century, and its successors also found their ways to every-day legal reasoning.86 Critique against the liberal rule of law doctrine became globally endemic in the 1960s and 1970s at the latest, when law turned towards the ‘Social’. Since then mainstream jurists have tended to accept that Western law is saturated with politics, indeterminacy and subjectivity. This consensus has been used to justify numerous legal reform projects around the world.87 Today, legal realist and critical perspectives have become part of the sub-consciousness of Western legal theory.88 Despite this, the problems of the liberal rule of law doctrine are seldom present in contemporary examinations of the PRC legal system. Even though 86 See, e.g., Oliver Wendell Holmes, ‘The Path of the Law’, 10 Harvard Law Review (1897) 167-202; Wesley Hohfeld, ‘Some Fundamental Legal Conceptions as applied in Judicial Reasoning’, 23 Yale Law Journal (1913) 16-59; Robert Hale, ‘Coercion and Distribution in a Supposedly Noncoercive State’, 38 Political Science Quarterly (1923) 470-494; Felix Cohen, ‘Transcendental Nonsense and the Functional Approach’, 35 Columbia Law Review (1935) 809-849. 87 See Duncan Kennedy, ‘Two Globalizations of Law & Legal Thought: 1850-1968’, Suffolk University Law Review (2003) 631-679 at 657-658. 88 To be sure, Chinese studies are not devoid of ‘critical’ perspectives. See especially Teemu Ruskola’s work. While Randall Peerenboom has titled one his chapters ‘The Irrelevance of Critical Legal Studies and Marxist Critiques’, some of his work is close to CLS-style critique. Compare Peerenboom, China’s Long March, supra note 5, at 164-165; and Randall Peerenboom ‘The X-Files: Past and Present Portrayals of China’s Alien “Legal System”’, 2 Washington University Global Studies Law Review (2003) 3795.

Finnish Yearbook of International Law (Vol. XV, 2004) 102 __________________________________________________________________ realistic, economic, social and critical considerations have influenced certain isolated parts of legal reform projects, the underlying scepticism on which these considerations are based is rarely visible in today’s development programming. The concept of the rule of law is employed as a self-evident general term, synonymous with all that is considered positive about society – democracy, human rights, transparency, certainty, freedom, fairness and justice. At the same time, the instrumental rule by law is recognised as the necessary dark side of law, which alone, without the element of ‘justice’, is either insufficient or outright dangerous for the development of countries such as China.89 The element of justice is not seen as an internally contradictory concept, but as a coherent principle, which protects the interests of Chinese citizens and foreign investors alike. Such an unconditional belief in the liberal rule of law doctrine seems surprising, especially as it is applied to a (at least nominally) Communist developing country. Interestingly enough, foreign scholars studying the post-Soviet Russian legal system are decidedly more sceptical about the possibilities of the rule of law doctrine than scholars of China. This may be due to the fact that, although Russia reformed its legal system in accordance with the liberal rule of law doctrine, law has remained marginal in Russian society.90 Another interesting point of comparison is the first law and development movement, which ended up in self-doubt and demise in the 1970s partly because it lost its faith in the possibilities of legal regulation. This was the case even though the first law and development movement held a much more complex view on the legal system than the present one. 91

The Fictions of Freedom and Rationality Part of the critical arguments against the PRC legal system can be attributed to a doctrine which assumes that society is best governed by objective and neutral laws.92 Laws, unlike policies, are supposedly rational since they possess stability and certain core meanings, even if they are somewhat indeterminate. To paraphrase H.L.A Hart’s often-sited example, a prohibition to park a vehicle in a park is not an unambiguous rule. It is not immediately evident from the rule whether it is The UN Country Team states that ‘[t]here is a danger if rule of law is taken only as a means of social control’. See China 2000: A current perspective by the UN Country Team in China, supra note 80, at 11. 90 See Soili Nystén-Haarala, Russian Law in Transition: Law and Institutional Change (Kikimora Publications: Helsinki, 2001) at 282; Kathryn Hendley, ‘Rewriting the Rules of the Game in Russia: The Neglected Issue of the Demand for Law’, 8 East European Constitutional Review (1999), available at <www.law.nyu.edu/eecr/>) (visited 18 January 2005). 91 See David M. Trubeck & Marc Galanter, ‘Scholars in Self-Estrangement: Some Reflections on the Crisis in: Law and Development Studies in the United States’, 4 Wisconsin Law Review (1974) 1062-1102. 92 See Koskenniemi, From Apology to Utopia, supra note 20, at 67. 89

Narcissistic Law 103 __________________________________________________________________ applicable to bicycles, airplanes or roller skates. Hart’s point is that the rule, in spite of its inevitable vagueness and ‘open texture’, constitutes a plain case to which other situations can be compared: namely, that it is forbidden to take a motor-car, a bus and a motor-cycle into the park. ‘Clear cases’ are the paradigm for the application of the rule.93 In the liberal rule of law ideology as it is promoted in China, a proper legal system is thought to be made of such more or less clear rules, which construct a more or less coherent normative order. Adjudication is about finding these rules and applying them objectively. In a rule of law society, the liberal doctrine argues, legal objectivity and formality bring about equality, which guarantees the legitimacy of the legal system. Citizens accept the authority of law, as they know that a judge does not mix legal rules with his or her political views.94 Freedom is the ultimate justification of the liberal rule of law system.95 From the perspective of liberal theory, Chinese laws appear to be overtly political and legal procedures saturated with political motives. Naturally also political campaigns through which the People’s Republic has been governed to a large extent seem biased, political and subjective. Liberal theory is closely associated with the concept of rationality. Rational individuals form rational society governed by a rational legal system. A rational legal system is predictable, which is a precondition for business as business is, of course, rational.96 Since capitalism is based on rationality and predictability, legal reforms are seen to play a key role in China’s transition to a market economy.97 A legal system that provides citizens an equal status before the law and allows them to choose which transactions they enter into, enables the most optimal allocation of resources in society.98 In liberal theory, the rule of law, formalism, objectivity, predictability, market economy, freedom and rationality are all interwoven into a prima facie impeccable logical framework. Standard conclusions about the problems of the Chinese legal system are valid to the extent that one agrees with the liberal rule of law doctrine. A common form of critique against the liberal rule of law doctrine points out that law does not 93 See H.L.A. Hart, The Concept of Law (Oxford University Press: Oxford, 1961) at 123-125. Hart attacks ‘rule scepticism’ elsewhere. 94 See Deutsche Gesellschaft für Technische Zusammenarbeit & MOFCOM, Chinese Contract Law: Comparative Case Studies: Part Two (China Commerce and Trade Press: Beijing) at 3-13. 95 Pierre Schlag, ‘The Empty Circles of Liberal Justification’ 97 Michigan Law Review (1996) 1-46, at 8. 96 As already explained, Max Weber argued that China was not governed by rational legal authority, which was a prerequisite of capitalism. See Weber, The Protestant Ethic, supra note 17, at 2. Weber provided a more elaborate view on Chinese society in The Religions of China: Confucianism and Taoism (The Free Press: New York, 1968). 97 See, e.g., Asian Development Bank, Development Management: Progress and Challenges in the People’s Republic of China (Asian Development Bank: Manila, 2002) at 45. 98 For more such recommendations for China, see Wang Guiguo and Wei Zhenying (eds.), Legal Developments in China: Market Economy and Law (Sweet & Maxwell: Hong Kong 1996).

Finnish Yearbook of International Law (Vol. XV, 2004) 104 __________________________________________________________________ operate in a political or historical vacuum, but always contains ‘subjective’ values of political parties, social groups and classes. Another classic argument against the liberal doctrine claims that legal rules are inevitably indeterminate and may be interpreted in contradictory ways. Even if one regards legal rules as sufficiently unambiguous, one may acknowledge that fact evaluation gives courts innumerable possibilities to decide a case in any preferred way. There is no mechanic and rational process of legal adjudication and no single possible solution. Instead, the legal system seems to be stuck in an unsolvable contradiction between mechanically applicable rules and ad hoc justice.99

The Fiction of Determinacy A basic critique against the Chinese legal system maintains that Chinese laws are too vague and include too many general provisions. Pitman B. Potter, for instance, fears that the PRC Contract Law provision which allows the invalidation of contracts on the grounds of fraud, coercion, State interests and so on, is so vague that it enables trade protectionism.100 Some determinacy arguments merely focus on the technical problems of the PRC legislation, which could apparently be solved through legislative reforms,101 whereas others are fuelled by cultural self-descriptions and concern for more fundamental issues. The latter have also been produced by jurists of the Orient. Japanese Professor Takeyoshi Kawashima has identified the difference between Oriental and Western legal concepts as follows: ... many westerners believe in a myth which has developed concerning the psychology of the Japanese people. The myth tells us that many things in Japanese culture are completely opposite to everything in the western society… Today there seems to be less and less basis for this myth. At the same time, there does, however, exist a way of legal thinking which is specific to Japanese culture and her people. … In European society and in America, every word has a definite meaning … [In Japan] the meaning of the word is not expected to be definite, limited, or fixed. Naive realism is the special characteristic of the

See e.g., Hale, ‘Coercion and Distribution in a Supposedly Noncoercive State’, supra note 86; Duncan Kennedy, ‘Form and Substance in Private Law Adjudication’, 89 Harvard Law Review (1976) 1685-1778 at 1685. 100 Pitman B. Potter, ‘The Legal Implications of China’s Accession to the WTO’, 167 The China Quarterly (2001) 592-609 at 605. See PRC Contract Law (₼◝ⅉ㺠␀✛⦌⚗⚛㽤), art. 52. 99

101

See, e.g., Howson, ‘China’s Company Law?’ supra note 84.

Narcissistic Law 105 __________________________________________________________________ Japanese culture, while logical realism is much more characteristic of western thought. 102

Kawashima’s statement may be correct as far as cultural self-descriptions are concerned, although it should be asked to what extent such views have been produced through colonial encounters. But the subject matter of his conclusion – that legal concepts possess definite meanings in the West – is debatable. General principles, such as the principle of good faith, seem to belong to Western law just as much as they belong to Chinese or Japanese law. The PRC Contract Law provision on the invalidity of contracts is an inevitable escape clause that follows from the logic of civil law and that can be found in any legal system (whereas the actual implementation of the clause is a different matter). Concepts such as ‘fairness’ and ‘reasonableness’ function as necessary altruistic backdoors for legal reasoning.103 These concepts hardly have a ‘definite meaning’ in the West, as proposed by Kawashima. Indeterminacy is not limited to individual concepts; the legal system on the whole has been subject to constant interpretation. These views have not been constrained to the outskirts of legal theory. In his response to Hart’s theory, Professor Lon Fuller, a Republican protagonist of anti-totalitarian natural law theories and an early critic of legal realism, argued that problems of interpretation did not ‘turn on the meaning of individual words.’ Instead of words, interpretation concerned the meaning of a ‘sentence, a paragraph, or a whole page or more of text’. Consequently, it could not be expected, Fuller argued, that a whole paragraph could have a standard instance as Hart had suggested.104 Even though Fuller may have been ultimately misguided in his analysis of Hart’s thesis, his views demonstrate that doubt in deduction crosses political boundaries. For Fuller, it was formalism, not indeterminacy, which enabled totalitarian governance. In the Chinese context, determinacy arguments are connected to the critique of the normative disorder of the PRC legal system, which presupposes that ideal legal systems are and can be hierarchical. Compared to Western legal systems, the hierarchical order of the Chinese legal system does appear more dynamic. This is to say that in China, there is a discussion on substantial matters relating to the sources of law which are more or less (and rightly or wrongly) taken for granted in, for Takeyoshi Kawashima, ‘Japanese Way of Legal Thinking’ in Csaba Varga (ed.), Comparative Legal Cultures (Dartmouth: Aldershot, 1992) at 395-396. 103 See Kennedy, ‘Form and Substance in Private Law Adjudication’, supra note 99. 104 See Lon L. Fuller, ‘Positivism and Fidelity to Law: A Reply to Professor Hart’, 71 Harvard Law Revue (1958) 630-672 at 662-663 and 669-672. As already explained, in The Concept of Law Hart himself refers to problems of defining a ‘vehicle’ in order to demonstrate that the prohibition has a plain meaning even if it is inevitably vague. See Hart, The Concept of Law, supra note 93, at 123. 102

Finnish Yearbook of International Law (Vol. XV, 2004) 106 __________________________________________________________________ instance, Finland.105 Having said this, the differences are not as great as they might first appear. Practising lawyers in Finland and in China have no difficulties in constructing normative orders which suit best the argument they are making at any given moment. And, like in China, there is an academic discussion on the sources of Finnish law. While the hierarchical relations between EU law, the Finnish Constitution, national law and administrative regulations are undisputed, the correct categorization and the actual significance of certain sources of law such as precedents and international human rights obligations remain debated.106 It can be argued that hierarchical stability of a legal system is merely a question of linguistic conventions, which follows from one or a couple of generally accepted doctrines of sources. Hierarchical relationships between laws and regulations appear as vague as laws themselves. If one is ready to accept that legal principles possess no clear meanings, one is also likely to agree that principles such as lex specialis and lex generalis are as vague as other general principles and that these principles are not sufficient alone to guide the process of legal reasoning and hierarchy-building. The same is true of the relationships of higher and lower-level norms. Although there may exist a linguistic convention which finds that ‘laws’ are of higher hierarchical standing than ‘regulations’, the practical application of these higher and lower-level norms makes their actual hierarchical relationship indeterminate. Norms laying down the hierarchy of legal norms (such as section 106 of the Constitution of Finland regarding the invalidity of laws that ‘obviously’ breach the Constitution 107) appear to be highly unstable legal constructions.

The Fiction of Objectivity According to the standard liberal rule of law theory, a legal system has to be autonomous and independent from the political machinery. The presupposition is that law can be objective and free of politics. Chinese law and the PRC judiciary allegedly fall short of the liberal rule of law doctrine in two ways: PRC laws are thought to be overtly political and the PRC judiciary is considered to be, to a certain extent, influenced by internal and external political motives.108 Such observations The status of Supreme People’s Courts Opinions is one example. See Guobin, ‘Establishment of Legislative Order’, supra note 65. 106 See Aulis Aarnio, Laintulkinnan teoria – Yleisen oikeustieteen oppikirja (WSOY: Porvoo, 1988) at 222; Hannu Tolonen, Oikeuslähdeoppi (WSOY Lakitieto: Helsinki, 2003) at 19 and 103; Raimo Siltala, Oikeustieteen tieteenteoria (with an English summary) (Suomalainen lakimiesyhdistys: Helsinki, 2003) at 244-245. 107 See article 106 of the Finnish Constitution and the decision of the Finnish Supreme Court KKO 2004:110, available in Finnish at <www.finlex.fi> (visited 13 June 2005). 108 See Lubman, Bird in a Cage, supra note 5, at 263-264. 105

Narcissistic Law 107 __________________________________________________________________ seem valid but not characteristic of China alone. Since the beginning of the 1900s, Western legal realists have argued that political value judgments penetrate law at every turn. Judges decide cases according to their own political preferences. Not only this, the legal system as a whole is a political entity which promotes its own interests that are often different from the interests of the rest of society. Laws are ultimately of a political nature and their interpretation calls for political value judgments. It seems clear that the Chinese legal system is political: new PRC economic laws, for instance, reflect the CCP’s policy goal to attract foreign investment into China.109 It can be argued, however, that there is no categorical difference between Western and Chinese law – both are thoroughly politicized. The real question that, one could claim, the liberal doctrine attempts to avoid is whose politics the Chinese legal system and foreign rule of law projects promote. References to substantial and thick rule of law theories suggest that the rule of law discussion is not merely about the technicalities of Chinese administration. Policy guidelines explicitly state that the intention of the rule of law projects in China is to equip the Chinese government with efficient coercive administrative measures in order to secure a stable market (and investment) environment. 110 Rule of law projects, in general, can be interpreted as a concrete means to advance Western cultural, political and, especially, economic hegemony in developing countries. The liberal rule of law doctrine and its language of rationality, determinacy and objectivity contribute to this goal. Such a conclusion does not need to be controversial: within neo-liberal development theory, it is assumed that the hegemony of Western legal institutions contributes to the economic, social and cultural development of the developing countries.111

The Moral of the Story In one version of the myth of Narcissus, the spell of self-love is cast on the young man as a punishment for his insensitivity. It does not require much self-reflection to acknowledge that legal realist research and comments on the Chinese legal system are based on presuppositions about Western law that can be attributed in many instances to the liberal rule of law doctrine. Many jurists are likely to subscribe to the ideals of objective, precise, rational and just law, even if these stem from a somewhat outdated, culturally particular social construction, the export efforts of 109

See, e.g., PRC Foreign Trade Law (₼◝ⅉ㺠␀✛⦌⺈⮥忇㢢㽤).

‘One of the greatest challenges facing the PRC’s legal system is reforming it to meet the needs of market economy.’ Asian Development Bank, Development Management: Progress and Challenges in the People’s Republic of China, supra note 97, at 45. 111 For discussion see Thomas Carothers, ‘The Rule of Law Revival’, 77 Foreign Affairs (1998) 95-106. 110

Finnish Yearbook of International Law (Vol. XV, 2004) 108 __________________________________________________________________ which are commonly frustrated by practical problems. While this attitude is understandable, it may also be an insensitive approach towards Chinese law. What are, then, the implications of labelling the mainstream approach to Chinese law narcissist? One possible – but ultimately false – answer would be to claim that self-reflection leads one to ‘truly’ understand a foreign legal system. By becoming aware of one’s presuppositions, it could be argued, one could approach foreign law as a tabula rasa. In light of much that has been written in social sciences and philosophy since the 1960s, such a statement would be problematic. There are no shortcuts to objective knowledge.112 The myth of Narcissus is a reminder of the fact that reality remains a subjective affair, that claims thereof are never innocent and that we are inevitably stuck in a world of reflections. A less ambitious claim would, however, appear to be defendable. One cannot rise above one’s presuppositions, but being self-consciously narcissist is seldom a constructive approach to cross-cultural interaction. Narcissist fervour may lead one to claim, for instance, that Chinese laws are inferior to Western laws because they include general clauses. Such an argument is obviously flawed, since all legal systems make use of vague general principles. This has, in fact, been seen as a typical property of the ‘well-developed’ welfare State. Narcissist statements also subject one to elementary forms of critique: if one employs a strictly legal realist method to dismiss the PRC judiciary, but one’s arguments portray an idealistic view of the possibilities of law, it easily appears that one’s argument is not consistent. A narcissist and dismissive attitude towards Chinese law may have concrete implications: if one believes that law is not important in China, one is more likely to neglect necessary legal work in the country.113 The myth of Narcissus also enables other interpretations. One could, for instance, speculate about the circumstances behind Narcissus’s tragedy. Was Narcissus’s pride simply due to his foolishness or was he trying to reject something that was uncomfortably close to him? If such rejection can explain the singlemindedness of the contemporary Orientalist rule of law doctrine, perhaps it would be time to reshape it. An approach to the Chinese legal system which accepts criticism against the doctrine would be sceptical about claims to rationality, objectivity, impartiality and freedom by any actor in the legal field. Rather than trying to enlarge the field of normative law and bolster its social standing, such approach would pay attention to power relationships and material policy objectives behind the law. The alleged indeterminacy of normative hierarchy in China, for Making references to grand philosophical works hardly pays off in legal research. See Ilpo Kaislaniemi (ed.), Suomalainen silkkitie: suomalaisyritysten kokemuksia selviytymisestä Kiinassa (Sitra-Tekes-Finpro: 2003) at 39. See, also, Samuli Seppänen, Commercial Disputes and Their Resolution in the People’s Republic of China (The Erik Castrén Institute Research Reports: Helsinki, 2005).

112 113

Narcissistic Law 109 __________________________________________________________________ instance, could be seen as a beneficial tool for the Chinese central authorities to test reform policies in the provinces without allowing them officially. Indeterminacy could be seen as a reason for why legal regulation is employed in the first place, rather than as its unfortunate anomaly. Chinese and foreign policy-setters working from this approach would not regard law as the goal of reforms but rather as one tool in the toolkit. Where informal social channels would produce the best policy results, these would be adopted without hesitation. Legal regulation might be a useful tool in realizing one’s policy objectives, but it might also not.

Conclusions Legal fictions are not valid or invalid as such; they originate from different theoretical presuppositions, political projects and worldviews. Many foreign commentaries on the Chinese legal system display a belief in the liberal rule of law doctrine. Such an approach can be called Narcissist, as far as it idealizes the typical ‘Western’ legal system and, while employing legal realist methods to criticize the Chinese legal system, disregards them in relation to the ideal model itself. In principle, accepted and internalized critique against the liberal rule of law doctrine should affect one’s view on the Chinese legal system. If it is acknowledged that legal norms and fact evaluation make all adjudication indeterminate and subject to political considerations, attention should be directed towards the form of politics practised within the PRC jurisdiction rather than the law itself. This should, in turn, make legal reforms appear less imperative than what is often implied. Such a conclusion would, in fact, be supported by reports about the development of the Chinese private sector, which has grown largely without or in spite of legal regulation. Despite such plausible (and largely legal realist) arguments, the Orientalist bias makes the law of the Occident seem like a simple cure for the problems of the less mature, less rational and less objective Orient. Narcissus’s fate was a punishment for his pride and selfishness. Rather than being evidence of his strength and wisdom – amicability – Narcissus’s self-love told of their absence. It would be tempting to argue that, in its current identity crisis, the West needs China and the rest of the developing world to bolster its ailing selfesteem more than the developing world needs the West. One could also make the provocative argument that, as a consequence, it is the Orient, the hierarchically lower part of the dichotomy, that has the upper hand over the self-proclaimed dominating part, the West. Such a conclusion would probably be too far-reaching as far as global power games are concerned: rule of law projects in China are set to prove that Narcissus’s love was well-placed after all. Or who knows? One version of the myth of Narcissus ends with the young man trying to embrace his image,

Finnish Yearbook of International Law (Vol. XV, 2004) 110 __________________________________________________________________ disturbing the pool and realizing that his own image is perishable. Having become aware of his tragic situation, Narcissus dies.

Bargaining Transnationalism: The European Court of Human Rights Baûak ÇalÖ*

Introduction In this paper my aim is to provide a critical analysis of a concept current in law and anthropology. That concept is the idea of the ‘transnational’. For many writers/authors the concept represents an independent category with defined boundaries, and an important field of processes and practices. The category is supposed to identify such a field as not reducible to domestic or national legal practices and the schemes of authority they exhibit. Rather, it is supposed to identify, in a significant way, independent or autonomous legal practices: independent and autonomous from national/domestic practices. There are, in some writings at least, tendencies to identify this field as somehow a progressive achievement or, for some purposes a more useful field of practice.1 For that reason, there is much at stake in understanding this concept and category. In what follows, I first show how the category has been employed in the literature, and what role it is seen to serve. I then identify three accounts of what constitutes the independence or autonomy of transnational legal practices. I show that the promise of an autonomous or independent field, in the way intended or desired by authors employing the concept, is not fulfilled in any of these accounts. To do so, I employ the practice of the European Court of Human Rights (ECtHR) as a case study, and show how actually, rather than being an independent field of * Lecturer in Human Rights, Department of Political Science, University College London. This article is based on a paper presented at the ‘Developing Anthropology of Law in a Transnational World’ Workshop Series 1 on ‘Governmentality, The State and Transnational Processes of Law’, Birkbeck School of Law, 26-28 April 2004, London. 1 Anne Marie Slaughter, A New World Order (Princeton University Press: Princeton, 2004).

Finnish Yearbook of International Law (Vol. XV, 2004) 112 _________________________________________________________________ legal practice, it is a dependent, precarious one, always struggling to define the very field of independence it is supposed to have, and continuously shaping that field in the light of concessions it must make to national legal demands.

Transnational as an Independent Category In a 1992 article in the Annual Review of Anthropology, Merry 2 concluded that ‘an anthropology of law in the 1990s will increasingly need to take transnational processes into account in understanding local places’. In identifying this burgeoning research agenda, Merry stressed the need to develop theoretical understandings that explain the role of transnational processes.3 Since 1992, the relevance of the ‘transnational’ in legal anthropology has received increasing attention as a space,4 as an imaginary5 and as a level.6 A natural home for the study of transnational legal processes has been the field of human rights. Legal anthropological works problematised human rights practice precisely at the nexis of a tension between ongoing struggles of local fields of human rights practice and (legal) discourses and practices of human rights taking place at a transnational level.7 The anthropological eye to look out for local, marginal and subaltern communities within modern states and an increasing interest in larger scale transnational legal levels have thus presented us with ‘a three level analysis’: the local, the national and the transnational. Studies have been concerned with their 2

Sally Engel Merry, ‘Anthropology, Law and Transnational Processes’, 21 Annual Review of Anthropology (1992) 357-379 at 371. 3 Ibid., at 357. On this point see also, Yves Dezalay and Bryant G. Garth (eds.), Global Prescriptions: Production, Exportation, Importation of a New Legal Orthodoxy (University of Michigan Press: Michigan, 2003). 4 John Borneman, Settling Accounts Violence, Justice and Accountability in Post Socialist Europe (Princeton University Press: New Jersey, 1997); Paul Stoller, ‘Globalizing Method: The Problems of Doing Ethnography in Transnational Spaces’, 22 Anthropology and Humanism (1997) 81-94. 5 Rosemary Coombe, The Cultural Life of Intellectual Properties (Duke University Press: Durham NC, 1998). 6 Hermaine G. de Soto, ‘Reading the Fool’s Mirror: Reconstituting Identity against National and Transnational Practices’, 25(3) American Ethnologist (1998) 471-488; Sally Falk Moore, Law and Anthropology: A Reader (Blackwell Publishing: Oxford, 2004) at 304. 7 Richard A. Wilson, ‘Introduction’, in Richard A. Wilson ed., Human Rights: Culture and Context (Pluto Press: London, 1997) 1-27 at 23; Sally Engle Merry, ‘Legal Pluralism and Transnational Culture: The Ka Ho’okolokoloniu Kanaka Maoli Tribunal, Hawaii 1993’ in Richard A. Wilson (ed.), Human Rights Culture and Context (Pluto Press: London, 1997) 28-48 at 44; Sally Falk Moore, ‘Certainties Undone: Fifty Turbulent Years of Legal Anthropology, 1949-1999’, 7 The Journal of the Royal Anthropological Institute (2001) 95-116.

Bargaining Transnationalism 113 _________________________________________________________________ intricate relationships, the potential of transnational level of law to dominate or emancipate local fields of action and the technologies of appropriation, translation and interpretation of the transnational human rights law practices by local actors.8 The general sense of interest that pervades the field of law and anthropology in the transnational level of law as an analytical category comes with taking the existence of a transnational level for granted without careful attention to how transnational levels of law emerge, survive and change.9 This lack of attention is not accidental, but methodological. The methodological interest in the impact of macro forces on micro locations has to assume a less problematic and a more concrete phenomenon at the macro level. An impact analysis would be difficult, not to say impossible, otherwise. This level of law, then, is either a subject of celebration,10 or a subject of suspicion with regard to the local consequences it may have.11 Turning the tables around and studying the transnational, rather than its impact on the state or local forms of law, leads us to the ambiguous and fluid character of the substance of the transnational levels themselves. The ambiguous character of this concept lies in its original construction as an analytically separate category from domestic and local levels. This original construction of ‘separateness’ has to be investigated to understand how this concept works. The transnational level of law is a useful empirical distinction with which to make sense of a complex web of interactions between different agents and sites of legal meaning. However, an independent meaning of the category of the transnational level cannot be unproblematically assumed. To claim that what is presented as separate is ultimately joined to what it is presented as separate from leaves us with a paradox in understanding the point and purpose of using the transnational level as a conceptual category, which precedes analysis, in legal anthropology. Analytical distinctions are necessary to make sense of complex webs of interactions, but can also impose maps of mis-readings of how a concept works, what substance it can have. My discussion rejects a positivist methodology that takes the transnational level as an object and that studies what the transnational level does, in

8

Wilson, ‘Introduction’, supra note 7, at 12-13. For exceptions, see Yves Dezalay and Garth Bryant, Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order (University of Chicago Press: Chicago, 1996); Hillary Cunningham, ‘The Ethnography of Transnational Social Activism: Understanding the Global as Local Practice’, 26(3) American Ethnologist (1999) 583-604. 10 Anne Marie Slaughter, New World Order, supra note 1, at 79-82. 11 Natalia Alvarez Molinero, ‘From the Theory of Discovery to the Theory of Recognition of Indigenous Rights: Conventional International Law in Search of Homeopathy’ in Saladin MeckledGarcia and Baûak ÇalÖ (eds.), The Legalisation of Human Rights: Multidisciplinary Perspectives on Human Rights and Human Rights Law (Routledge: Oxford, 2005) 165-181. 9

Finnish Yearbook of International Law (Vol. XV, 2004) 114 _________________________________________________________________ favour of an interpretive methodology, which defends the position that the meaning of the transnational level of law is not directly accessible.12 In what follows, I aim to deconstruct the assumptions of separateness of the transnational level from the domestic and local levels in relation to the ECtHR. First I will problematise the autonomous and independent character of the transnational level of law. It is not possible to assume how this concept works without having a prior understanding about the relationship between human rights law and domestic law as developed by the ECtHR. The transnational European human rights level, despite its formal and empirical validity, is a very fluid concept. The ECtHR both reinforces the idea of the existence of local and domestic contexts of law and is also ambiguous in the way in which it relates to them. In the second part, I make a close reading of two cases before the ECtHR that both raise the issue of banning of political parties in Turkey. I aim to show that the transnational level does not emerge as a hierarchical ‘third’ level and must be made and remade through a complex set of lateral and vertical family relationships to national (and local) level claims.13

The European Court of Human Rights as a Transnational Level There is first the formal account14 of the ECtHR. This Court has a mandate to adjudicate international human rights claims of individuals who are within the jurisdiction of Council of Europe member states. 15 The account of formal analysis prioritises the meaning of the ECtHR law as a legal text. Judgments of the ECtHR are test grounds to assess and understand whether that meaning is substantively 12

When I discuss an interpretive methodology what I have in mind are the works of Hans-Georg Gadamer, Truth and Method (The Seabury Press: New York, 1975) and Clifford Geertz, ‘Thick description: towards an interpretive theory of culture’ in Clifford Geertz The Interpretation of Cultures (Basic Books: New York, 1973) 3-32. 13 Sari Wastell, ‘Presuming Scale, Making Diversity: On the Mischiefs of Measurement and the Global: Local Metonym in Theories of Law and Culture’, 21(2) Critique of Anthropology (2001) 185-210. 14 Here what I mean by ‘formal’ is an account of law that is not interested in the context of particular claims. So, the questions asked by this account are only normative and the motivation of a formal account is to provide justifications, not explanations. A contextual account on the other hand, has to ask both normative and explanatory questions. 15 European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222, entered into force 3 September 1953, as amended by Protocols Nos 3, 5, 8, and 11 which entered into force on 21 September 1970, 20 December 1971, 1 January 1990, and 1 November 1998 respectively. The Council of Europe currently has 46 member states and one pending application for membership from Belarus.

Bargaining Transnationalism 115 _________________________________________________________________ realised in the practice of the Court. Such an account is not concerned with level analysis, for the ECtHR is a ‘forum of principle’, to use a Dworkinian term16 for substantive human rights claims. The relationship is set out between conflicting claims and counter-claims of principle, rather than a series of complex interactions between entities separated from each other with a degree of conceptual autonomy. The European Convention on Human Rights and Fundamental Freedoms (ECHR) enables a victim who has been directly subject to a violation of one of the Convention Rights to bring a complaint if the victim can show that all domestic remedies have been exhausted.17 The Court formally frames disputes between individuals and states. The subject matter of the disputes are universally claimable and enforceable rights of the individuals. It asks ‘whether one of the Convention Rights of the individual is engaged’, ‘whether the six month rule after the exhaustion of domestic remedies is observed’, ‘whether the dispute is about a qualified right, ’18 and if this is the case, ‘whether there is a legitimate intervention with the fundamental rights of individuals’. Judgments of ECtHR have an officially designated space for the ‘applicant’s claims’, ‘government’s responses’ and ‘the Court’s judgment’. Applicants do not need to go through a review of why the facts of the case violated domestic law. It is sufficient to provide evidence that the domestic remedies have been exhausted.19 Applicants, government agents and the Court formulate their claims with respect to why the Convention has direct relevance to their case and why the facts of the case do or do not violate the Convention. The formal story of the European Convention of Human Rights is, then, based on an independent relationship between a legal category called the ‘individual(s)’ and the European Convention of Human Rights. No matter how subjective, contingent and concrete the nature of the claims of an applicant, human rights law in the formal sense is based on the principle that the Court’s role is to hear them as universal claims of an isolable whole called the individual, regardless of 16 Ronald Dworkin, ‘The Forum of Principle’, 56 New York University Law Review (1981) 469-518 at 48687. 17 Article 35 of the ECHR, supra note 15. 18 The distinction between qualified rights and non-qualified rights is based on the principle that an infringement of a right is not in all cases a violation of that right, if the right itself provides for grounds of legitimate interference. For example, torture is a non-qualified right, therefore every infringement is a violation. Freedom of expression, freedom of assembly and association, freedom of religion, conscience and thought, right to privacy, on the other hand are qualified rights. 19 Exhaustion of domestic remedies, according to the ECtHR jurisprudence, however, needs to be effective and available. Domestic remedies are required to be capable of providing redress in respect of applicants’ complaints and they should provide reasonable prospects of success (see generally Akdivar and Others v. Turkey, ECHR (1996) Vol. IV, 1210, at para. 68).

Finnish Yearbook of International Law (Vol. XV, 2004) 116 _________________________________________________________________ sub-group identity, affiliation to a political community or multiple layers of membership or loyalty. This formal account also suggests, in a parallel way, that the most significant dimensions of the task of the ECtHR is the inquiry into the substantive meanings of human rights law.20 The role of the ECtHR is to look at individual human rights claims and employ interpretive techniques to best accommodate such claims by creating a body of human rights law jurisprudence. When putting flesh on the formal story of the ECHR in order to point to the context of law legal anthropological analysis can initially employ the transnational level category in two distinct ways: either by viewing the ECtHR in legal pluralist terms or in legal instrumentalist terms. The former leads to a methodological move of envisaging a ‘transnational sovereignty’ in Strasbourg, while the latter turns the ECtHR into a tool which is unable to exert any autonomous pressure of its own to the outcomes of the cases brought before it. Both moves are capable of conceptualising a three-level relationship, which reifies the existence and relevance of (domestic and local) levels of analysis in legal anthropology, but through assigning different meanings to the ‘transnational level’ with different methodological consequences. Both positions have conceptual weaknesses, but I regard the legal pluralist move a more difficult position. Legal pluralism as a concept was first applied to cultural differences in colonial legal processes. Theoretical models of plural legalities assume the existence of different systems of law.21 It is an original and strong separateness of legal meaning, authority and control in time and space that enables legal pluralists to assert the existence of legally separate, but co-existing systems.22 A legal pluralist research agenda has to start the analysis from the co-existence of the legal systems, but ethnographic work may conclude that different levels of systems are mutually self-constituting and that there are potentials of contamination between legal pluralities.23 As Wastell24 puts it, however, ‘the very language of “codification”, “formalisation” and “official versus unofficial” throughout these works informs the reader that they are proceeding from the baseline of a scale which serves as the unspoken framework into which legal pluralism must be fitted’. Different levels of 20

George Letsas, ‘The Truth in Autonomous Concepts: How to Interpret the ECHR’, 15(2) European Journal of International Law (2004) 279-305. 21 John Griffiths, ‘What is legal pluralism?’, 24(1) Journal of Legal Pluralism (1986) 2-55; Peter Fitzpatrick, The Mythology of Modern Law (Routledge: London, 1992); Chris Fuller, ‘Legal Anthropology, Legal Pluralism and Legal Thought’, 10(3) Anthropology Today (1994) 9-12, Boaventura de Sousa Santos, Towards a New Common Sense (Routledge: New York, 1995); Sally Engle Merry, Colonising Hawaii: The Cultural Power of Law (Princeton University Press: Princeton NJ, 2000). 22 See Wastell, ‘Presuming Scale’, supra note 13. 23 See, for example, Sally Engle Merry, Colonising Hawaii, supra note 21. 24 Wastell, ‘Presuming Scale’, supra note 13, at 189.

Bargaining Transnationalism 117 _________________________________________________________________ law are identified based on their consequentialist effects on society. In the case of the ECtHR, and international human rights law in general, however, there is no autonomous systems of signs and meanings with which the subject encounters and interacts.25 An a priori assumption of autonomous existence of a transnational level of law and an empirical study of contamination of the different levels of law put the burden on legal pluralism to prove that international human rights regimes are contextually different from state made law. A move to find international human rights law as ‘foreign’ or ‘global’ or ‘transnational’ or ‘Western’ is arbitrary in the jurisprudential sense. What is it after all that makes human rights law fundamentally different from contract law or criminal law or any other state law? In this respect, the origins of human rights law are as modern as any other form of law. To suggest that human rights law is more ‘transnational’ or ‘international’ because it stems from international treaties is also not convincing, because such a view needs to prove that state consent to such treaties creates an entity with full autonomy. The mechanics of ECtHR protection is to check whether the legitimate authority of a domestic level domain has exceeded its limits. The transnational and domestic level relations are too intricately and organically connected to constitute plural legalities à priori. The methodological position that adopts the exactly opposite move, on the other hand, reduces the transnational level into an instrument altogether. This conceptualisation requires locating the relationship between national systems and sub-identities that exist within them as the key aspect for the emergence of the transnational level.26 Even though the formal story is between the ‘individual and the state’ before the ECtHR, applicants in most cases do not exist as isolated individuals living in a functional political culture. They exist as members of local, marginal, disenfranchised, subaltern communities and citizens of European nationstates.27 Individual cases are simultaneously about a story of a local, sub-national level against the domestic level: ‘the gays in the military in Britain’,28 ‘Macedonians from Greece’,29 ‘Algerian immigrants in France’,30 ‘Roma in Bulgaria’,31 ‘Chechens in

25

Franz von Benda-Beckman, F. von Citizens, ‘Strangers, and Indigenous Peoples: Conceptual Politics and Legal Pluralism’, 9 Law and Anthropology: International Yearbook for Legal Anthropology (1997) 1-42. 26 Alison. D. Renteln, ‘The Concept of Human Rights’, 83 Anthropos (1988) 343-364. 27 Michael Herzfeld, Poetics and Manhood: Contest and Identity in a Cretan Mountain Village (Princeton University Press: Princeton, 1988); Aykan Erdemir, ‘Incorporating Alevis: The Transformation of Governance and Faith Based Collective Action in Turkey’, PhD Thesis, Harvard University (2004). 28 E.g. see Smith and Grady v. United Kingdom, ECHR (1999) IV. 29 E.g. see Sidiroipoulos v. Greece, ECHR (1998) IV. 30 E.g. see Nasri v. France, ECHR Series A (1995), No. 320-B. 31 E.g. see Natchova and others v. Bulgaria, ECHR (2005), (unreported).

Finnish Yearbook of International Law (Vol. XV, 2004) 118 _________________________________________________________________ Russia’.32 As in the banning of Turkish political party cases which I will discuss later, groups can bring themselves to the Court: the ‘Communists’, and the ‘Islamists’ organised in the form of political parties. In other cases, however, it is not the collective action of a group, but the significance of a single case to a group that demarcates the ‘local level’ vis à vis the domestic level. Construction of the transnational level then finds meaning in relation to the complicated relationship between the state and the sub-groups that have refused to be completely incorporated by it. The ECtHR is a tool that one can use when domestic remedies are exhausted to refuse incorporation for the local level, while it can also be used as an effective mechanism to strengthen a swift incorporation. Strasbourg is simply a means to an end, the end being defined by the groups who seek to use it. If the ECtHR is regarded as a level with no autonomous content, it is reduced to a battlefield of state domination and sub-national groups’ resistance. An un-nuanced dominance/resistance framework to understand the ECHR right claims has to downplay to a great extent the point and purpose of making human rights claims and the formal requirements of the ECtHR to make such claims. An instrumental analysis of the ECtHR will have to treat the ‘human rights’ in the name of the Court as accidental. Local groups have non-changing and altruistic purposes to seek to end the states’ domination and are willing to use any means for that end. If the claims of these groups fail before the ECtHR, the reason for failure would be the dominant nature of states. This completely misses the point and purpose of the ECtHR. The necessity of telling every story within the human rights violation template of the Convention does not allow an uninterrupted continuance of the domestic/local level antagonisms at the ECHR transnational level. The formal requirements imposed to the narration of stories modify the original position of these groups as constructed within the national context. The story of the local group is subject to adjudication to the extent to which it can convincingly come under the scope of any of the Convention rights. For it be a violation, there are a series of thresholds the infringement of the right has to pass depending on the right in question.33 The ‘battle’ before the ECtHR is, therefore, not the next battle in a series of legal confrontations between the state and a sub-group, but a qualitatively different one that may be neither played out in terms of encapsulation of the group by the state nor the emancipation of the group from the state. The transnational level, in this respect, is not a completely neutral space for battle. It has the authority

32

See e.g. Khashiyev and Akayeva v. Russia, ECHR (2005) (unreported). See generally, Alastair Mowbray, Cases and Materials on the European Convention on Human Rights and Fundamental Freedoms (Butterworths: London, 2001).

33

Bargaining Transnationalism 119 _________________________________________________________________ to set out the rules of the game and in doing so cannot simply be analysed as a means to an end interior to the groups seeking that end. What emerges from the above is that the transnational level of the ECtHR can neither be conceptualised as an autonomous level nor as a tool. The Court is both too organically connected to the forms, authority and control of the modern nationstate and too regulative of the mechanics of making claims that it fails to satisfy either of these conceptualisations. The interpretive practice of the Court in relation to local level claims and state responses also confirm this account. With the ‘autonomous concepts’ doctrine, the ECtHR sends a message to domestic levels that it will not treat concepts such as ‘association’34 and ‘criminal charge’35 as they may be understood by domestic legal systems. Through designating autonomous meanings to such concepts, the Court also encourages a legal pluralist research agenda of its practice. However, by simultaneously asserting that domestic legal systems may have a ‘margin of appreciation’ in relation to a certain set of claims that are fundamental to the continuance of the hierarchical prominence of national sovereignties in giving final decisions, the transnational level steps back, giving way to the non-autonomous strings in its foundation.36 The fundamental problem of the transnational level of the ECHR is its problematic, but ultimately determinant relationship with the sovereign state. 37 This relationship is qualitatively different from the relationship between the modern state and sub-national identities. It is the very domestic sovereignties that create the transnational level in human rights law. This is in contrast to the construction of domestic sovereignties at the expense of sub-groups within a national political community. For the transnational level, the possibility of transcending the domestic level for the autonomous creation of cultural and legal meanings is possible through human rights claims, but this possibility should not be understood in terms of a gradual process (i.e. the longer the ECtHR is around, the more autonomous it will become). The practice of the ECtHR does not deny the inter-state nature of its

34

Chassagnou et al. v. France, ECHR (1999) III at para 101. Engel and others v. the Netherlands, ECHR Series A (1976), No. 22; Öztťrk v. Germany, ECHR Series A (1984), No. 73. 36 On the practice of the use of margin of appreciation, see generally, H. C. Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (Martinus Nijjhoff: The Hague, 1996). 37 On the relationship between human rights norms and sovereignty, see, Saladin Meckled-Garcia and Basak ÇalÖ, ‘Lost in Translation: Human Rights Ideal and International Human Rights Law’, in Meckled-Garcia and ÇalÖ (eds.), Legalisation of Human Rights: Multidisciplinary Perspectives (Routledge: Oxford, 2005) 11-31. 35

Finnish Yearbook of International Law (Vol. XV, 2004) 120 _________________________________________________________________ existence;38 it treats this as an intimate relation and a set of self-imposed limits to itself. The ECtHR in Herzfeld’s terms shares a ‘common sociality’ 39 with the national level and the doctrine of margin of appreciation is the most apt representation of this intimacy.40 When the Court sees that a specific dispute will hit the core interests of the political community, it agrees to step aside announcing that the domestic courts are better placed to adjudicate (or state authorities are better placed to legislate and execute for that matter). An exercise of margin of appreciation is also [tantamount to] recognising the cultural intimacy of a political community by suspending the relevancy of transnational arguments. If the ECtHR is neither an autonomous nor a designated location for a national/sub-national confrontation, but has characteristics of both, how can we conceptualise this fluidity? Moore’s 41 ‘semi-autonomous social field ’offers one answer that can accommodate the in-between situatedness of the ECHR transnational. Moore describes ‘the semiautonomous social field’ as: … par excellence a suitable way of defining areas for social anthropological study in complex societies. It designates a social locale to which anthropological techniques of inquiry and observation can be applied in urban as well as rural settings. By definition it requires attention to the problem of connection with the larger society … The semiautonomous social field is defined and its boundaries identified not by its organisation (it may be a corporate group, it may not) but by a processual characteristic, the fact that it can generate rules and coerce or induce compliance to them. Thus an arena in which a number of corporate groups deal with each other may be a semiautonomous social field. Also the corporate groups themselves may each constitute a semi-autonomous social field.42

By following Moore’s definition, we see that the transnational character of the ECtHR emerges from its capacity to generate rules about human rights protection and the way in which it induces a pull towards compliance with these rules amongst states and motivation amongst individuals and groups seeing a point and purpose in 38

Handyside v. UK, ECHR Series A (1976), No 24, at para. 48; Bankovic and Others v. Belguim and Others, (2001) XII, at paras. 59-61. 39 Herzfeld defines ‘cultural intimacy’ as follows: ‘the recognition of those aspects of a cultural identity that are considered a source of external embarrassment but that nevertheless provide insiders with their assurance of common sociality, the familiarity with the bases of power that may at one moment assure the disenfranchised a degree of creative irreverence and at the next moment reinforce the effectiveness of intimidation’. Michael Herzfeld, Cultural Intimacy: Social Poetics in the Nation-State (Routledge: New York, 1997) at 3. 40 I am thankful to Aykan Erdemir for alerting me to this concept. 41 Sally Falk Moore, Law as Process: An Anthropological Approach (Routledge & Kegan Paul: London, 1978) at 57. 42 Ibid., at 57.

Bargaining Transnationalism 121 _________________________________________________________________ applying to the ECtHR. Any semi-autonomous field that the ECtHR retains should also be sensitive to both national sovereignties that co-exist in parallel and randomly emerging local demands. However, the mechanics of the emergence of the transitional level cannot be identical in all cases. The main concern of the Court in every sub-national claim that comes before it is not only to settle the specifics of that human rights claim (a process of situational adjustment in Moore’s terms), but also to enhance its legitimacy in relation to states and applicants. The underlying quality of the transnational character of the ECtHR is then one of theoretical indeterminacy and instability.43 If there is anything at all that constitutes the transnational level except the echoes of state law and authority and individual and group challenges, it is the ECtHR’s own need to assert itself as a semi-autonomous social space through being neither independent of nor external to local and domestic levels. The tensions between the interpretive doctrines of margin of appreciation and of autonomous concepts can then be understood as part of this self-assertion. The understanding of the transnational level of law, with respect to the ECtHR, then, cannot emerge in the absence of a discussion of how the Court attempts to enhance its legitimacy and create a pull towards compliance. There is no stable formula to use. The constantly expanding number of states 44 becoming party to the Court enhances the degree of the problem, not its nature. The judges and the rapporteurs of the Court must legitimately think from time to time, ‘what if we get it wrong next time’? In cases before the ECtHR, there is always a multiplicity of alternatives of meaning. This can help the Court assert or consolidate its semi-autonomous socialfield. Different issues require different strategies in terms of creating a pull towards compliance, generating rules about human rights protection and enhancing the Court’s legitimacy. I will not go into a further discussion about how these interior and exterior concerns disintegrate on every single issue. Rather, my aim is to point to the fluidity with which the transnational emerges. The concerns mentioned will differ depending on the right provision in question – is a fundamental organisational principal of a state at stake or is there a legitimacy deficit that the Court may perceive? For example, the Court makes a special case for a much more autonomous adjudication of cases concerning the right to life regardless of the context.45 In what are called ‘qualified rights’, however, the need for autonomous adjudication is balanced with the legitimate limitations of domestic legal systems, 43

Ibid., at 48-49. Since November 1990, membership of the Council of Europe increased from 25 to 46, with the accession of 21 Eastern and Central European States. 45 Isayeva v. Russia, ECHR (2005) unreported, at para. 172. Perhaps, this is also questionable since the admissibility of the claims to the right to life is subject to an essentially territorial jurisdictional link. 44

Finnish Yearbook of International Law (Vol. XV, 2004) 122 _________________________________________________________________ provided that such limitations are ‘necessary in a democratic society’ and ‘proportionate to the legitimate aim pursued’.

Vertical or Lateral Strategies: Turkish Political Party Cases The Communist Party and the Refah (Welfare) Party were banned by the Constitutional Court of Turkey in 1991 and 1998 respectively. Both parties went to the European Court of Human Rights alleging a number of violations of their rights under the Convention. The ECtHR identified freedom of association as the most relevant right in both cases. In the case of the Communist Party, the Court 46 found a violation; in the case of the Refah Party,47 it did not. Subsequently, the Refah Party case was referred to the Grand Chamber, which also held that there had been no violation of the Convention. These cases go to the core of the relationship between the European transnational and the national sovereignties. The issue at stake is the reaction of the ECtHR to a series of local challenges to national authority with regard to political survival. The Court cannot, as a consequence of the indeterminate nature of its theoretical construction, emerge as a hierarchical vertical level. The creation of a lateral system of social meanings emerges as a technology for the Court to guard its semi-autonomous social sphere. The Court is able to switch between a hierarchical European public order that will gradually encapsulate national and local orderings, and the fundamentally divided European family – a collection of siblings with no vertical, unifying thread between them.48 This technique enables the transnational realm to distance itself from the individual fortunes of cases challenging domestic legal orders, while at the same time allowing the Court to solidify its own regularity as a sphere in law. In the first Turkish political party case, Communist Party and Others v. Turkey (1998), the ECtHR was asked to decide whether the dissolution of the Communist Party came under the scope of freedom of assembly and association, and whether this freedom was unjustifiably interfered by the domestic court. 49 The Turkish 46

Communist Party of Turkey and others v. Turkey, ECHR (1998) I. Originally, the Communist Party case was seen before the Grand Chamber, as this case raised fundamental questions of interpretation of the ECHR. The Refah Party case was only referred to the Grand Chamber on appeal after the judgement of no violation. 47 Refah Partisi (the Welfare Party) and others v. Turkey, ECHR (2001) VII. 48 Juliet Mitchell, Siblings: Sex and Violence, (Polity Press: Cambridge, 2003). 49 United Communist Party and Others v. Turkey, ECHR (1998) I.

Bargaining Transnationalism 123 _________________________________________________________________ government submitted the argument that the creation of the Communist Party with that very name, which drew a distinction in its party programme between Kurds and Turks, and which asked for constitutional recognition of the Kurdish nation as a constitutive element of the state, were tantamount to challenging the fundamental organising principles of the Turkish state. The Turkish Constitutional Court identified these aims stated in the Communist Party’s programme as challenging the basis of citizenship, secularism and political and territorial integrity in Turkey. It also stated that the constitutionality of the political aims of parties had to be reviewed by the Constitutional Court. The government defended this dissolution before the ECtHR with a contextual and historical approach, which called for the particularities of the Turkish political community to be taken into account. But it also used a lateral understanding of how domestic states relate to one another in Europe: ‘Communism’ invariably presupposed seizing power and aimed to establish a political order that would be unacceptable, not just in Turkey but also in the other member States of Council of Europe. Further, the use of certain names was also proscribed in other legal systems in the West. In that respect, the Government referred to the German, Polish, Portuguese Constitutions.50 In a preceding paragraph, the Government asserted that not only were the Turkish Constitutional Court’s actions a widespread and historic practice amongst parallel sovereignties constituting Europe, but it was also a matter of principle that such practice was an inherent limitation to what the ECtHR should do: … States parties to the Convention had at no stage intended to submit their constitutional institutions, and in particular the principles they considered essential to the conditions of their existence, to review by the Strasbourg institutions.51

In countering these two objections based on common practice and the need of the ECtHR to be sensitive to concerns other than the rights violations, the Court agreed with the government that domestic laws did allow the action taken by the Turkish Constitutional Court. It agreed, without any further justification as to why, that the dissolution of the political party served a legitimate aim of protecting national security,52 therefore giving legitimacy to the Turkish thesis. In doing so, the ECtHR put itself in the position of the guardian of a vertical hierarchy of values: As the Court said many times (own emphasis), there can be no democracy without pluralism … Democracy without a doubt is the fundamental feature of the European public order … European countries have a common heritage of 50

Ibid., para. 20. See also para. 21. Ibid., para. 21. 52 Ibid., para. 40. 51

Finnish Yearbook of International Law (Vol. XV, 2004) 124 _________________________________________________________________ political tradition, ideals, freedom and the rule of law. The Court has observed that in that common heritage can be found the underlying values of the Convention.53

Reference to the notions of ‘Europe’, ‘European’, and ‘the European public order’ were ways of establishing the legitimacy of the rule-generation of the Court. Transnational Europe, in this case, emerged through the use of the test of necessity in a democratic society. This test was constructed through a vertical set of relationships. Turkey could only be found to violate a value that autonomously exists and hierarchically trumps the Constitutional Court’s reasoning. However, instead of then discussing the necessity of the specific action taken, the Court decided the case based on the disproportionate nature of the action.54 The ECtHR’s advantaged position emerged from the fact that the Constitutional Court of Turkey dissolved the Communist Party solely on the basis of its constitution, programme and political party’s choice of name. The ECtHR’s strongest argument was the lack of action and activity on part of the Communist Party. The vertical hierarchy of the Court’s transnational realm was stated, but gradually modified towards the end of the Judgment. In the Refah Partisi case,55 the applicants, the state and the Court were moving away from the vertical relationship model with regard to the way in which the European transnational should emerge. Unlike the Communist Party, which only existed on paper when it was dissolved, the Refah Party was in power. It had formed a coalition government with the centre-right True Path Party (Dogru Yol Partisi).56 The grounds given by the Turkish Constitutional Court for the dissolution of the Party centred around the statements and speeches made by the chairman, members of parliament and high ranking members of the party proposing the establishment of a plurality of legal systems with the application of sharia to the Muslim community and references to jihad.57 In justifying its ban of the Refah Partisi, the government referred to parallel state laws and bans on political parties in a lateral Europe.

53

Ibid., paras 43 and 45. Ibid., para. 61. 55 Supra note 47. 56 Refah Partisi took part in a series of local and general elections since 1989. In the general election of 1991, it obtained 16.88% of the votes. It obtained approximately 22% of the votes in the general election in 1995 and won 158 of 450 seats in the Grand National Assembly and became the largest political party in the Parliament. 57 Supra note 47, para. 68. 54

Bargaining Transnationalism 125 _________________________________________________________________ Militant democracy, in other words a democratic system which defended itself against all political movements, which sought to destroy it, had been born as a result of the experience of Germany and Italy between the wars with fascism and national socialism, two movements which had come to power after more or less free elections … The concept of a militant democracy and the possibility of repressing political groups which abused freedom of association and freedom of expression were set forth in the Constitutions of European States.58

In countering allegations of its anti-secular political agenda, the Refah Partisi referred to the contested nature of the secularism debate within the political community and attempted to demonstrate that it had never intended to be antisecular.59 Refah drew on criticism of secular practices by high-ranking judicial authorities, who were presented as defenders of human rights, 60 and accused major Turkish companies of wanting to prevent the party from pursuing its policy of opposing state borrowing from companies. 61 The submissions of the Refah Partisi were not based on forcing the Court to take an autonomous position on a nonnegotiable principle of European human rights law, but rather to point to the bad faith in how the Turkish Constitution had been applied. Given this dynamic, the Court, instead of setting out a vertical set of principles which would have guided the interpretation of freedom of association, became a self-appointed dispute resolution mechanism. The Court’s focus became its external sensitivities: The parties agreed before the Court that preserving secularism is necessary for protection of the democratic system in Turkey. However, they did not agree about the content, application and interpretation of secularism.62

The Court agreed, in line with the reasoning of the Turkish government, that the introduction of a plurality of legal systems, and the subjection of the Muslim population to sharia was incompatible with the principle of secularism in Turkey – the fundamental organising principle of the state. In this respect, the principle of pluralism as employed in the Communist Party case, became the very reason why the Refah Party could be banned. Therefore, the crucial question became whether the actions taken by the Refah Party were achievable. Whereas in the Communist Party decision the absence of political activity functioned as a threshold, in this case the presence and the level of political activity was the threshold to justify 58

Ibid., para. 62. Ibid., para. 55-58. 60 Ibid., para. 55. 61 Ibid., para. 58. 62 Ibid., para. 65.

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Finnish Yearbook of International Law (Vol. XV, 2004) 126 _________________________________________________________________ proportionality. The statism as a feature of the European transnational was alive and well in this decision. The lateral diversity that the Court claimed to protect was a diversity of siblings from the same parental roots. While the Court was placing its trust in the family members through the doctrine of ‘margin of appreciation’ – therefore actively endorsing a form of legal diversity within the European nation state – it dismissed the consideration of legal pluralism within those states.63 This again demonstrates that the loyalty of the ECtHR lies with the creator nation-states. The demands of the local groups were only relevant as long as they are put in a familiar language. In the second round of the Refah Partisi case before the Grand Chamber, this is precisely what the applicant did, making its language that of the European transnational. Its claims were no longer local, but transnational. Applicants pointed to the complete absence of the Court’s voice in the first judgment submitting that ‘rigorous European supervision on the Court’s party would have shown that Refah complied with democratic principles’.64 The applicant also picked up on the unqualified discussion of legal pluralism by questioning how the introduction of a ‘civil law’ system based on contract law could affect the public law of the state. A final change in strategy was to try and draw contradictions in the perception of ‘Muslim-democrats’ in relation to ‘Christian-democrats’ by pointing to an unwarranted incompatibility portrayed between ‘sharia’, human rights and democracy.65 In response, the Turkish government merely repeated the justifications provided by the Court in the first decision. What was interesting was the response of the Grand Chamber to allegations of impartial discussion of the issue by the chamber Court. The Court, again, used a vertical form of descent-nascent understanding of Europe, repeating that democracy is the fundamental feature of the European public order and the common heritage of the European nations. 66 At the same time, it asserted the need for European nations to have the autonomy to reach ‘a compromise between the requirements of defending the democratic society and individual rights inherent in the Convention system’.67 However, the Court refused to be the sole arbiter of the balance:

63

Here I am not suggesting that legal pluralism as set out by the Refah Partisi is compatible with the European Convention on Human Rights. What is of interest here is the refusal of the Court to engage with this question in a substantive manner and give a full justification about why such a project is problematic. See also, in relation to this point, albeit in a different tone, concurring opinion of Judge Kovler, Refah Partisi v. Turkey, Concurring Opinion of Judge Kovler, ECHR (2003) II. 64 Refah Partisi (The Welfare Party) and others v. Turkey, ECHR (Grand Chamber) (2003) II para. 70. 65 Ibid., para. 75. 66 Ibid., para. 86. 67 Ibid., para. 96.

Bargaining Transnationalism 127 _________________________________________________________________ The Court considers that a political party may promote a change in the law or the legal constitutional structures of the State on two conditions: firstly the means used to that end must be legal (own emphasis) and democratic; secondly the change proposed must itself be compatible with fundamental democratic principles.68

The emergence of the transnational level was again pulled in opposite directions. Even though the Court was aiming to identify a vertical hierarchy of democratic principles (on which the European public order is based), it nevertheless also introduced a legality criterion, whose specifics are determined by state law. The Court cannot generate pull to compliance in matters of political survival of the central organising principles of the state. The more structural the problem that is articulated, the less relevant the individual protections of rights and their protection by the Court become. The Court must not lose sight of the fact that in the past political movements based on religious fundamentalism have been able to seize power in certain states and have had the opportunity to set up the model of society which they had in mind. It considers that, in accordance with the Convention’s provisions, each Contracting State may oppose such political movements in the light of its 69 political experience.

The Court is able to frame the rule generation within Europe both as a vertical paradigm and as a lateral paradigm. What emerges from the above is that the Court goes through stages of adjustment of how autonomous it should be in the course of a proceeding. The more the Court develops sensitivities about outside concerns than adjudication of human rights, the more lateral Europe seems. The Court is willing to accommodate legitimate action containing ‘acceptable’ diversity. The threshold of ‘acceptable diversity’ versus ‘unacceptable diversity’, however, is not clearly drawn. The transnational level of Europe emerges as something that is and something that must be made in the progression of the cases. It is not only the Court, but also the governments and applicants who adopt to this making of the transnational level.

68 69

Ibid., para. 98. Ibid., para. 124.

Finnish Yearbook of International Law (Vol. XV, 2004) 128 _________________________________________________________________

Conclusion In this paper, I have attempted to argue that the ‘transnational level’ is not a straightforward independent category with defined boundaries. Within the context of the human rights adjudication before the ECtHR, the transnational level of law emerges not as a graspable object, but rather as a fluid practice with multiple pulls. The empirical existence of transnational sites does not in itself give rise to a clear conceptual understanding of transnationalism in relation to human rights adjudication. Our desire to understand post-national processes should not override methodological caveats about the complexity of understanding the concept of the transnational. In the account I have provided, instability and an economy of survival emerge as the defining characteristics of international human rights adjudication. Linear forms of optimism or scepticism are not adequate responses to transnational levels of law. Problems associated with transnationalism, its intimate and problematic relationship with state sovereignty, cannot be resolved through more transnational levels of law or less of it. The condition of the transnational levels of law is precariousness. This conclusion touches on an idea present in international human rights litigation. This is the idea that a juridical order that bypasses the nation-state is a promising platform to give effect to human rights claims and suffering of the subordinated. After all, the ECtHR is one of the most successful examples of this. However, the cases upon which such an image of promising transnationalism is built point to a mix of severe forms of suffering and a very strong combination of facts and evidence. The transnational image of law is at its strongest when state law malfunctions fundamentally and loses its internal pull to justice. The transnational becomes the ‘last resort’ defensive mechanism. ‘Last resort’ jurisprudence is a jurisprudence of cases of crisis and misery, of disappeared daughters, burned villages and detained outcasts. The less severe the suffering and the crisis, the more willing the transnational level of law is to bargain with the states and sub-state groups about its identity and the conditions under which that identity emerges.

‘We Know What It Is When You Do Not Ask Us’: The Unchallengeable Nation Peter Fitzpatrick*

A brief beginning on the tyranny of titles: ‘The Unchallengeable Nation’ refers obliquely to the series of lectures at the University of British Columbia in which this material was first aired, a series on ‘Challenging Nation’. Then the title proper is taken from Bagehot’s saying of nation: ‘We know what it is when you do not ask us, but we cannot very quickly explain or define it’.1 It is a recycled title but unavoidable.2 The first excuse for such recycling is that Bagehot’s saying encapsulates what I want to say. Bluntly, my argument will be that we find it difficult to challenge nation because we cannot say what it is so as to identify it explicitly and thence confront it. A little more exactly, we are unable to do this from within the uniform plane of modernity since nation occupies a sacral dimension of being which the modern cannot integrate. Giving effect to that dimension may enable us to challenge modernist conceptions of nation, however. The other excuse for titular repetition refines that challenge. It stems not so much from wanting to reverse the more usual academic practice – offering here the same title but a different paper instead of much the same paper with a different title – as from wanting to intimate a continuance, a sustaining of nation despite, and because of, its elusiveness, and from wanting to show how, in terms of that very sustaining, nation is challenged intrinsically. This is where law, inevitably, will come in. * Thanks to Catherine Dauvergne for the generosity of the invitation to give this talk. And, for the generosity that accompanied it, thanks to Catherine again, to Ruth Buchanan, Dianne Newell and the Peter Wall Institute for Advanced Studies, Susan Boyd, Claire Young, and Wes Pue. Although their attempts to saturate me with the relevant knowledge may not have been entirely successful, my failures, inevitable and otherwise, would have been much more conspicuous without the generosity, concern and companionship of Brenna Bhandar, Stewart Motha and Sara Ramshaw during this venture. Richard Joyce made invaluable editorial contributions to this version. 1 Walter Bagehot, Physics and Politics, or Thoughts on the Application of the Principles of Natural Selection and Inheritance to Political Society (Kegan Paul, Trench and Trubner: London, n.d.) at 20-1. 2 Cf Peter Fitzpatrick ‘“We know what it is when you do not ask us”: Nationalism as Racism’ in Peter Fitzpatrick (ed.), Nationalism, Racism and the Rule of Law (Dartmouth: Aldershot, 1995) 3-26.

Finnish Yearbook of International Law (Vol. XV, 2004) 130 __________________________________________________________________ Let me first compensate for that opaque opening by way of the pellucid genius of Virginia Woolf. Woolf was certainly no nationalist but she showed the most attuned appreciation of nation in Mrs Dalloway where, close to the beginning, she describes the mysterious yet palpable passage, a slow and silent passage, through an exalted part of London of a stately motor car, one containing ‘a face of the very greatest importance,’ a presence that somehow evokes nation but cannot be exactly identified, an inscrutable presence resonant with authority and effect yet a mystery that ‘had brushed … [the onlookers] with her wing,’ momentarily suspending the transactions of ordinary life and inducing an intangible apprehension (‘The world has raised its whip; where will it descend?’), yet inducing also an expansion of the soul: ‘Mr. Bowley, who had rooms in the Albany and was sealed with wax over the deeper sources of life … could be unsealed suddenly, inappropriately, sentimentally, by this sort of thing;’ or the flower-seller ‘shawled Moll Pratt … would have tossed the price of a pot of beer – a bunch of roses – into St. James’s Street out of sheer light-heartedness and contempt of poverty had she not seen the constable’s eye upon her, discouraging an old Irishwoman’s loyalty’.3 How then, or when, may we know this presence? It ‘will be known to curious antiquaries, sifting the ruins of time, when London is a grass-grown path and all those hurrying along the pavement this Wednesday morning are but bones with a few wedding rings mixed up in their dust and the gold stoppings of innumerable decayed teeth. The face in the motor car will then be known’.4 It cannot be known, that is, short of a stilled end. Whether all this should moderate or whether it should heighten the constant academic lament at not being able to say what nation may be is a question that can be answered as we proceed, but for now the failure can prove revelatory. 5 What is especially revealing about this failure is its persistence in the face of repeated efforts to overcome it. Diverse affirmations of what nation concretely is never become accepted either as distinctive of nation or as fully accounting for it. Nation is, in the result, left with no determinate content of its own. That outcome is pointedly confirmed in Dauvergne’s observation of a shift in the criterion taken to be most distinctive of nation, a shift from territoriality to control over the movement of peoples.6 The vacuity of nation is further confirmed by attempts to capture it in more transcendent terms – attempts to capture it as imagined or as an infinitely variable élite project, for example. These attempts, like the efforts to render nation Virginia Woolf, Mrs Dalloway (Vintage (The Hogarth Press): London, 1992) at 11, 15-16. Ibid. at 13. 5 For a survey and analysis elaborating on the argument that follows, see Peter Fitzpatrick, Modernism and the Grounds of Law (Cambridge University Press, 2001) at 111-129. 6 Catherine Dauvergne, ‘Making People Illegal’ in Peter Fitzpatrick and Patricia Tuitt (eds), Critical Beings: Law, Nation and the Global Subject (Ashgate: Aldershot, 2004) 83-99; Catherine Dauvergne, ‘Sovereignty, Migration and the Rule of Law in Global Times’, 67 Modern Law Review (2004) 588. 3

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The Unchallengeable Nation 131 __________________________________________________________________ concretely, also fail to produce anything that either marks nation distinctively or fully accounts for it. In the openness of their criteria, such attempts do intimate that nation can be, perhaps ‘is’, ever-changing. Yet the persistence of the efforts to endow nation with determinate content would at least suggest that there must be a continuous striving, a reductive striving perhaps, to render the protean nation in determinate terms, impossible as this would seem to be. In more familiar if perhaps more complex terms, we could relate this divide to that between nation as particular and nation as universal. As particular, the nation of modern nationalism takes on a settledness and a completeness, and these are qualities which, historically at least, have been assumed or accepted mainly in terms of territory. But nation has not subsisted in such a contained and solitary way, avoiding any constituent relation to what is ever beyond such a straitened identity. The modern nation has, rather, always arrogated to itself the universal, and even if that is now rarely done in explicit terms, nation continues to do so through the prerogative claim to some commensurate capacity, such as being the exemplar of civilization or humanity, or through the adoption of a universalizing project, or through its quotidian yet illimitable relating to what is beyond its emplaced existence. There are obvious difficulties – difficulties to be confronted shortly – with a positive or posited constitution as universal, not least because if the universal ‘could ever actualise itself in the real world as truly universal, it would in fact destroy itself’.7 These difficulties were once overcome by constituting nation negatively, by setting it against those savages and others quite beyond the range of the universal. Being beyond the universal these others could only be absolutely beyond, and thence not within the domain of nation. This configuration changes, but its negative impetus remains, with the entry of almost everyone into the domain of nation. Thence, if the Orwellian adaptation may be forgiven, some are found to be more universal than others: some exemplify the universal (much) more fully than others; some have progressed or developed more markedly along a path to the universal than others; some belong to collections of elect nations typifying the universal and others do not – the great or imperial nations, the comity or community of nations, the developed or the advanced. As universal, and in opposition to the nation’s fixity as particular, nation is characterized by dynamism and movement, and this not only in the extraversion of nation, its going out and seeking to draw the possibility of the world to itself, but also in its more introverted effort to eliminate or surpass particular orders that would come between the nation-state and its solitary subject. Yet the universal, for all its constituent force, is needful of its instantiation in the particular. The particular, in turn, cannot protract and extend without its being 7 Partha Chatterjee, Nationalist Thought and the Colonial World: A Derivative Discourse? (Zed Books: London, 1986) at 17.

Finnish Yearbook of International Law (Vol. XV, 2004) 132 __________________________________________________________________ drawn out by the universal. As well as this mutual dependence between them, there must also be a subsistent irresolution between the universal and the particular if the particular is to be elevated universally and the universal instantiated particularly. Given these disparate yet irresolutely conjoined qualities of nation, we could return with more sympathy now to the unending stream of its apologists who would seek to say what it is and to endow it with some compendious, contained, even complete existence. To advance enquiry, we could take a cue from the latest book of one highly notable apologist, Anthony D. Smith in his Chosen Peoples: Sacred Sources of National Identity.8 The book is startling in its unoriginality (and that will eventually turn out to be a compliment). As between nation and the sacred, there is an abundance of tractable analogues, to put it no stronger than that for now. Doubtless the hugely predominant thrust of the theory and the ideology of nationalism has been modernist and secular, and nationalism so conceived counters sacral attachment and atavistic sentiment. Somehow it does not matter that leaders readily used and use such sentiment and such attachment in ‘building’ and sustaining nation; somehow it does not matter that nation retains many of the expressive features of this sentiment and attachment; somehow it does not matter that nation in its early history was often explicitly advanced as a substitute religion; and somehow it does not matter that even now ‘it is difficult to separate out pre-modern and modern sources of the sanctity of the homeland’.9 What is so significant about all this insignificance is the richness of the evidence Smith advances for what he sees as the prime and continuing valency of the ‘deep-rooted, enduring religious beliefs and sentiments, and a powerful sense of the sacred’ in the constitution and the continuance of nation – beliefs, sentiments and a powerful sense aligned with somewhat more operative notions of the communion of the people, the holiness of the land, varieties of myth, of law and sacrifice.10 What the generosity of Smith’s instances reveal so pointedly here is the yoking of the sacred to the authenticity and rightfulness of nation. The claimed presence or completeness of nation in its particularity is elevated beyond a mundane scepticism through such notions as the choseness of the people, the sacredness of the land, or the sacredness of a community’s attachment to it. 11 And the impossibility of nation’s universality is shielded from doubt through the attribution to nation of ‘a unique role in the moral economy of global salvation,’ through a redemptive ‘mission’ or portentous

Anthony D. Smith, Chosen Peoples: Sacred Sources of National Identity (Oxford University Press, 2003). Ibid. at 12, 14, 21, 26, 134. 10 Ibid. at vii for the quotation. 11 Ibid. at 255-6. 8

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The Unchallengeable Nation 133 __________________________________________________________________ ‘destiny’, and through the exemplary identification of nation with some transcendent universal entity.12 Looked at in another way, casting nation or its sources as sacred should not surprise us. Quite a while ago, Carl Schmitt cogently rendered the modern political and its forms, including sovereignty, as a secularized theology.13 Amplifying this, Derrida sees the sovereignty of the nation-state as a secularized theological concept.14 But what could such an oxymoronic secularized theology be? And how might nation be conceived of in such terms? Perhaps the beginnings of an answer could be sought in a more straightforward theologic, exemplified for present purposes in the god of monotheism, and it will facilitate that search for an answer if we keep within range the sacred, and sacred sources, invoked by Smith. The monotheistic god has to take on chasmically dual characters and bring them into a unity. One character can be found in the omnipresent and determinate god, the god of perfect order, the god of constancy, caught by his, usually ‘his’, own laws, by ‘nature,’ and forbidden by Malebranche to ‘disturb the simplicity of his ways’15 – a god, in short, unable to be other than what he is. The alternative god, in stark contrast, is one of infinite and pure possibility. He can only ever be other than what he ‘is’, ‘absolutely unconditional and subject to no limiting rules and norms’.16 This is the god of miracle, of nature confounded, of mystery and revelation, boundless, unrepresentable, an ineffable god, a god in whose presence there can only be dissolution. These deific characters have to be somehow combined in an impossible union. For Abu Ali Bin Sina (Avicenna), God was both rationally and ‘simply’ contained yet uncontainedly different from everything else, and apprehended most completely in the ‘realm of the imagination – not through discursive reason’.17 Or, for Plotinus, the One ‘is Everything and Nothing; it can be none of the existing things, and yet it is all’.18 What would seem to be a similar divide and combining mark other configurations of the sacred. It is common in myths of origin, for example, to pit variations of order and of incipient manifestation against chaos, possibility and the disparate. With such mythic sources Ibid. at 48-9, 66, 91, 203. Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (translated by George Schwab, MIT Press: Cambridge MA, 1985) at 36; Carl Schmitt, The Concept of the Political (translated by George Schwab, University of Chicago Press, 1996) at 42. 14 Jacques Derrida, ‘A Discussion with Jacques Derrida’, 5 Theory and Event (2001) para. 49. 15 P. Riley, The General Will Before Rousseau: The Transformation of the Divine into the Civic (Princeton University Press, 1986) at 40. 16 Ernst Cassirer, The Philosophy of Enlightenment (translated by Fritz C.A. Coelln and James P. Pettegrove, Beacon Press: Boston, 1955) at 238. 17 Karen Armstrong, A History of God: The 4000-Year Quest of Judaism, Christianity and Islam (Ballantine Books: New York, 1993) at 184. 18 Ibid. at 102. 12 13

Finnish Yearbook of International Law (Vol. XV, 2004) 134 __________________________________________________________________ however, as with other types of the sacred, the divide between these dimensions is a prelude to their creative combining. Having this generative power, the domain of the pre-modern sacred was conceived of as one of ‘energy’ and ‘forces,’ and it was the profane which was the place of a set ‘substance’ and of ‘things’.19 This contrasts with a reduced or constrained modern meaning of ‘sacred’. In that reduction, the sacred is made fixed or inviolate, a matter of unshakeable belief or of what enduringly is, yet something also to be protected, enduringly ‘held’ against challenges to it. Sacredness is thence attributed to property and the nation, law and the constitution, life and stem cells. Doubtless this represents a muchremarked dimension of the sacred generally.20 The boldest of contrary claims for a still unbounded sacred is made by Eliade: ‘the outstanding reality is the sacred; for only the sacred is in an absolute fashion, acts effectively, creates things and makes them endure’.21 Neither effective action, nor the creation of things, nor their enduring can be in stasis, any more than they can be in nothing but change. Operatively, the sacred becomes the combining of its own antithetical dimensions into force and form. As such, and for Bataille, ‘the sacred is essentially that which, although impossible, is nonetheless there’. 22 It is there as a resolution in-between its antithetical dimensions, but it is only ever an expedient, a resolution ‘for the time being’. More bluntly, resolution as the outcome of the sacred ritual is a deception. 23 The resolved reality which the ritual, or office, or system, or symbolism, or law would enclose – and would shore up with iterations, incantations and solemnities – that reality subsists in its unsettling appetency for what is illimitably beyond it. And what is beyond ‘remains “here below”, remains in rapport’ with the enclosed reality.24 The enclosing, the protecting of the reality, the bringing to form and identity, is always a denial of what could otherwise be or have been, a sacrifice – ‘the first representational economy’25 – to invoke another momentous mode of effecting the sacred. 19 Roger Caillois, Man and the Sacred (translated by Meyer Barash, The Free Press of Glencoe: Illinois, 1959) at 34. 20 E.g. René Girard, Violence and the Sacred (translated by Patrick Gregory, Johns Hopkins University Press: Baltimore, 1977) at 39. 21 Mircea Eliade, The Myth of the Eternal Return or, Cosmos and History (translated by Willard R. Trask, Princeton University Press, 1965) at 11 (his emphasis). 22 Georges Bataille, The Accursed Share: An Essay on General Economy: Volume II The History of Eroticism: Volume III Sovereignty (translated by Robert Hurley, Zone Books: New York, 1991) at 214. 23 Girard, Violence and the Sacred, supra note 20, at 5-7; Theodor W. Adorno and Max Horkheimer, Dialectic of Enlightenment (translated by John Cumming, Verso: London, 1979) at 50-1. 24 Joseph Libertson, Proximity, Levinas, Blanchot, Bataille, and Communication (Martinus Nijhoff: The Hague, 1982) at 7. 25 Jean-François Lyotard, Heidegger and ‘the jews’ (translated by Andreas Michel and Mark Roberts, University of Minnesota Press: Minneapolis, 1990) at 21.

The Unchallengeable Nation 135 __________________________________________________________________ Once upon a time – that once which we now put upon a time – these contrary dimensions of the sacred were ‘resolved’ through a reference to a transcendent beyond, such as a reference to that god of monotheism we encountered a little earlier. Various entities which were existent yet partook of the transcendent, sovereigns and myths of origin for example, mediated between these contrary dimensions, combining them operatively, assuming a constituent unity, yet all the while retaining ‘something of that duality’ mediated, ‘namely an ambiguous and equivocal character’.26 The world infused by such entities was still an heterogeneous one, not only as between the sacred and the profane but also as between the contrary dimensions of the sacred, a difference found in its famed ‘ambiguous’ character, as Agamben has it, an ambiguity captured in his elaboration of the Latin where ‘sacer means vile, ignominious, and also august, reserved for the gods; both the law and he who violates it are sacred’.27 This vile sacred is the sacred as transgressive, ever challenging the existent and set order, something that was once channelled in rituals and roles every bit as conspicuous and ‘public’ as those attending the sacred as revered. As against this heterogeneity, the new-created secular or rational world is one freed infinitely from any determining reference to a sacred realm set beyond our profane reality. Yet there is a view, clean contrary if less remarked, which sees modernism as an ironic apotheosis of the sacred rather than its utter denial, and this perception is something more thoroughgoing than those partial or exceptional resemblances some find between what were once manifestations of the sacred and their now attenuated secular counterparts. Notably, Adorno and Horkheimer in their critique of Enlightenment would render modernism itself as perfected myth, myth here being a form of the sacred, and they would find the sacred pervading the very modernity that would deny it: ‘In the enlightened world, mythology has entered into the profane. In its blank purity, the reality which has been cleansed of demons and their conceptual descendants assumes the numinous character which the ancient world attributed to demons’. 28 With this ‘disenchantment of the world,’ with ‘this dissolution of myth and the substitution of knowledge for fancy,’ and with the world straitened to ‘the known, one and identical,’ the now pervasively numinous reality takes what was beyond, what was transcendent, into itself. 29 Yet in so doing,

Claude Lévi-Strauss, The Raw and the Cooked: Introduction to a Science of Mythology, I (translated by John and Doreen Weightman, Penguin: Harmondsworth, 1986) at 226. 27 Giorgio Agamben, Language and Death: The Place of Negativity (translated by K.E. Pinkus with Michael Hardt, University of Minnesota Press: Minneapolis, 1991) at 105. 28 Adorno and Horkheimer, Dialectic of Enlightenment, supra note 23, at 28. 29 Ibid. at 3, 39. 26

Finnish Yearbook of International Law (Vol. XV, 2004) 136 __________________________________________________________________ it would still claim intrinsically to oppose, surpass and displace the world of the sacred – something which Adorno and Horkheimer also observe, inevitably.30 Given the analysis so far and the august authority of Adorno and Horkheimer, we could perhaps comfortably conclude that modernity is constituted within the very sacred it would deny. That conclusion could then be related to the sacred abiding in the unitary nation and its ‘sources’,31 to nation as that which ‘is’ of the sacred, yet of a sacred denied. In the result, we somehow know what nation ‘is’ but only when we are not asked to say what it is. That resolution could be bolstered by invoking renowned authority to the effect that nation must be seen as purely ‘imagined’, or that sovereignty can only now be a private, ‘subjective’ experience.32 And that would complete the exordial agenda. But not quite. To say that the modern, enlightened, secular nation is something sacred is not to say it is the same as a pre-modern sacral entity. It matters that what is constituent of nation is also denied in it. And denied in nation’s ambient modernity with its own constituent claim to a homogenous universality. Let me now explore that denial a little further as it will be central to my overall argument. Seeing nation as something we imagine does not account for why we imagine it as nation. There are attendant palpabilities to nation, such as territory, and even if none of these is taken as compendiously accounting for nation, they do lend materiality to imagination. And, further, these palpabilities would seem to provide more than a subjective experience of sovereignty and, indeed, would seem to substantiate nation every bit as effectively as those ‘public’ rituals and roles embodying the pre-modern sovereign. National sovereignty is somehow taken to be determinately emplaced yet possessed of an unconstrained and universal efficacy, able to be self-enclosed and self-adequate yet indefinitely extensive, and able to subsist finitely whilst incipiently encompassing what is ever beyond that finite existence. Understandably then, Rousseau would describe a variant of this sovereignty as ‘sacred’,33 and it can now be such, ostensibly, without a transcendent reference. Nation is rendered existent through its extensive openness always becoming immanent to its determinate particularity and, as Deleuze and Guattari aptly counsel, ‘whenever immanence is interpreted as immanent to Something, we can be sure that this Something reintroduces the transcendent’. 34 Ibid. at 46. Smith, Chosen Peoples, supra note 8. 32 Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (2nd edn, Verso: London, 1991); Bataille, The Accursed Share, supra note 22, at 233. 33 Jean-Jacques Rousseau, The Social Contract (translated by Maurice Cranston, Penguin: London, 1968) at 50. 34 Giles Deleuze and Felix Guattari, What is Philosophy? (translated by Hugh Tomlinson and Graham Burchill, Verso: London, 1994) at 45. 30 31

The Unchallengeable Nation 137 __________________________________________________________________ This bringing to the determinate of the extensive openness of nation, of its orientation towards the universal, constantly throws up the inadequacy of the determinate. In the result national sovereignty ever fails in its being self-adequate. This failure has to be repeatedly rectified and accommodated to national sovereignty if its integral identity is to be sustained. Modern law is the determinative means of so doing, a law aptly characterized by legal positivists as a national or ‘municipal’ law, as a subordinated expression of national sovereignty. Yet it is also something necessarily more extensive than the operative existence of national sovereignty, for law must be capable of going beyond the failures of national sovereignty and bringing that beyond into a secure determination. Yet even in this extending beyond, national law remains caught by the generative orientation of nation, caught by that bringing of what is beyond into a singularly determinate yet surpassing place. The movement of modern law and of modern nation alike is an imperial one. I will now hasten to situate that culminating proposition about nation and national sovereignty. The very effort at situating returns us to the initial conundrum of how such nation and such sovereignty can be placed and delimited when their constituent claim is one to illimitability, and when both these contrary dimensions must subsist compatibly in an homogenous, secularized reality. The gist of my argument has been that they cannot. The incompatibility is so stark that to reveal it should take but little enquiry into a situated actuality. And if, as Kedourie would have it, ‘nationalism sprang fully armed from the head of Immanuel Kant and the Enlightenment’,35 then we need only follow the enlightened Kantian injunction to pursue any enquiry without constraint, daring to face any consequence.36 We may feel inhibited in so doing by Kant’s prohibition of just such an enquiry since, for Kant, it would be ‘futile’ and would constitute ‘a menace to the state’. 37 We could perhaps now readily agree that enquiry would be ‘futile’ if one were after an enduringly resolved answer as to what nation or sovereign power may ‘be’. And we may also agree that the revelation of intrinsic irresolution in the constitution of nation and of sovereign power would be a menace to set and self-secure instantiations of the state. That Kant fully appreciated all this is evident in his intimating that, should we seek enlightenment on this score, should we dare to know, we would find that resolution had to resort to something ‘sacred’, to some ‘infallible supreme legislator’, even if that source is ‘an idea expressed as a practical principle of reason’.38 See Smith Chosen Peoples, supra note 8, at 11. Cassirer, Philosophy of Enlightenment, supra note 16, at 65. 37 Immanuel Kant, Kant’s Political Writings (translated by H.B. Nisbet, Cambridge University Press, 1970) at 147. 38 Ibid. at 143. 35

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Finnish Yearbook of International Law (Vol. XV, 2004) 138 __________________________________________________________________ Allow me, then, to seek practical reason in Canadian cases affirming national sovereignty as sacred and unquestionable in the face of secular challenges to it advanced by indigenous peoples. An expansive point of entry to this setting, and a first foray here ab origine, is provided by the decision of the Canadian Supreme Court in R v. Van der Peet.39 There Chief Justice Lamer briefly derived content for ‘aboriginal rights’ and ‘aboriginal title’ from decisions attributed to Chief Justice Marshall in the Supreme Court of the United States in the early nineteenth century.40 By way of a borrowing from significant academic authority, Chief Justice Lamer finds that these so-called Indian cases provide ‘structure and coherence to an untidy and diffuse body of customary law based on official practice’, and that the cases are ‘as relevant to Canada as they are to the United States’. 41 He immediately goes on to consider what is taken to be the ‘leading’ case of this kind, Johnson v. M’Intosh,42 a case which accorded some recognition to indigenous title but one which is more aptly seen by Robert Williams as seminal in bringing occidental colonization, with ‘its wars and acts of genocide directed against Indian people’, within the rule of law, or a claim to the rule of law.43 In a more compliant vein, for Bartlett this case has ‘been recognized throughout the common law world’ as the origin of a native title which provides ‘the only possible accommodation of the rights of settlers and Aboriginal people’.44 The immediate problem with Marshall’s judgement in this case is that its ‘structure and coherence’ remain quite elusive despite increasingly fantastic attempts to locate it.45 Not the least indication of this absence of structure and coherence is that Marshall himself frequently acknowledged it, and not the least acknowledgement concerned the very issue to be decided in the case: whether indigenous people could transfer title in their land to settlers. With some regard, perhaps, to a recent revolution based on universal or natural rights, on the rights of all ‘men’, Marshall did recognise that Indian peoples had ‘natural rights’ in their land, including the right to transfer ownership.46 To deny them that right, which the case did, was indefensible, but ‘may, we think, find some (1996) 2 SCR 507 (‘Van der Peet’). Ibid. at paras 35-7. 41 Ibid. at para. 35; Brian Slattery, ‘Understanding Aboriginal Rights’, 66 The Canadian Bar Review (1987) 727, at 739. 42 (1823) 21 U.S. (8 Wheat.) 543 (‘Johnson’). 43 Robert Williams, The American Indian in Western Legal Thought: The Discourses of Conquest (Oxford University Press: New York, 1990) at 325. 44 Richard Bartlett, ‘Mabo: another triumph for the common law’, 15 Sydney Law Review (1993) 178, at 182-3. 45 E.g. Eric Kades, ‘History and interpretation of the great case of Johnson v. M’Intosh’, 19 Law and History Review (2001), <www.historycooperative.org/journals/lhr/19.1/kades.html> (visited 7 May 2005). 46 Johnson (1823) 21 U.S. (8 Wheat.) 543, at 563. 39 40

The Unchallengeable Nation 139 __________________________________________________________________ excuse, if not justification, in the character and habits of the people whose rights have been wrested from them’.47 It may not be incidental to add that to have done otherwise could well have proved disastrous for the fledgling union of the United States.48 But returning to the lamentable character and habits of Indian peoples, what these amounted to was ‘the condition of a people with whom it was impossible to mix, and who could not be governed as a distinct entity’. 49 That mixture of separation with subordination – which has, of course, endured – was still not enough for a further outcome of the case: its upholding grants of land made by the settler states. The fragile bridge between this outcome and the restriction on Indian peoples’ natural right to alienate lands was limned by Marshall in this way: ‘However this restriction may be opposed to natural right, and to the usages of civilized nations, yet if it be indispensable to that system under which the country has been settled, and be adapted to the actual condition of the two people, it may perhaps be supported by reason, and certainly cannot be rejected by courts of justice’.50 The title founding such righteous settlement flows from ‘discovery’ by the British. Marshall fully acknowledges the arbitrary quality of ‘discovery’ in the next case Chief Justice Lamer considers, that of Worcester v. Georgia.51 Here Marshall found it ‘difficult to comprehend the proposition that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or over the lands they occupied; or that the discovery of either by the other should give the discoverer rights in the country discovered which annulled the pre-existing rights of its ancient possessors’.52 No further regard was had to that ‘difficulty’, however. That could still not be the end of Marshall’s anfractuous journey. Returning to the leading case of Johnson v. M’Intosh, in Marshall’s view discovery only entitled the discoverer to acquire or conquer lands discovered. He recognized that the settlers’ overweening claims to the whole national territory corresponded to effective conquest. This, he also recognized however, was a conquest that had not taken place. Nor must it be considered to have taken place since, in Marshall’s concept of it, the law of conquest meant that ‘the conquered inhabitants can be blended with the conquerors or safely governed as a distinct people’; and as we have just seen, they could be neither: they were ‘a people with whom it was impossible to mix, and Ibid. at 588. Williams, The American Indian, supra note 43, at 306-8. 49 Johnson (1823) 21 U.S. (8 Wheat.) 543, at 590. 50 Ibid. at 591-2. 51 (1832) 31 U.S. (6 Pet.) 515 (‘Worcester’). 52 Ibid. at 542-3. 47 48

Finnish Yearbook of International Law (Vol. XV, 2004) 140 __________________________________________________________________ who could not be governed as a distinct entity’.53 Marshall putatively resolved the conundrum like this: However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear, if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land and cannot be questioned.54

There was something in addition to this pretension of force which also could not be gainsaid, and that was the ‘right’ of ‘society’ conceived of as ‘the nation … to prescribe those rules by which property may be acquired and preserved’.55 More immediately, it was ‘the government’ which has ‘given us … the rule for our decision’.56 By the time of Worcester, less than a decade later, a spectral conquest had acquired more substance: ‘power, war, conquest, give rights which, after possession, are conceded by the world; and which can never be controverted by those on whom they descend’.57 That same and now ‘irresistible power’ has excluded Indian peoples ‘from intercourse with any other European potentate’, that being ‘the single exception’ to such peoples ‘retaining their original natural rights, as the undisputed possessors of the soil’,58 apparently forgetting that the natural right of alienation had already been ‘excepted’ in Johnson v. M’Intosh. There is then, if Marshall is to remain the chosen oracle, much which, echoing Kant, ‘cannot be questioned,’ or ‘drawn into question,’ or which must ‘never be controverted’. I will now take that imperative unquestioning, that straitened acceptance, as a provocation to explore further what cannot be questioned and why. First, however, there is another case which Chief Justice Lamer calls in aid, one which has often been cited in the Canadian cases, and that is the decision of the Australian High Court in Mabo v. The State of Queensland (No.2).59 Here the almost cursory concern of the Chief Justice is with the finding by the High Court that indigenous peoples had ‘native title’. A more sedulous examination of that case would reveal basic similarities with Johnson and Worcester, not just in their constricting the title of ‘encapsulated societies’, to borrow the phrase from Geertz, 60 but also in Johnson (1823) 21 U.S. (8 Wheat.) 543, at 589-90. Ibid. at 591. 55 Ibid. at 572. 56 Ibid. 57 Worcester (1832) 31 U.S. (6 Pet.) 515, at 543. 58 Ibid. 559. 59 Mabo v The State of Queensland (No.2) (1992) 175 CLR 1 (‘Mabo’); Van der Peet (1996) 2 SCR 507, at paras 38-40. 60 Clifford Geertz, ‘Life on the edge’, New York Review of Books, 7 April 1994, at 3-4. 53

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The Unchallengeable Nation 141 __________________________________________________________________ the prohibiting by Mabo of any questioning of how this all came about.61 With Mabo, and cognate cases, this is a self-denial, a matter of courts not being able to enquire into the exercise of a sovereign power of acquisition, bolstered by a concern that the outcome could be ‘embarrassing’.62 Yet the disruptive intrusion of such enquiry recurs throughout the judgements in Mabo, making the whole process no less turbid than that of Marshall’s convoluted but more candid engagement. And Mabo goes further than Marshall, in a sense, in finding the original ground of colonial acquisition in Australia, terra nullius, to have been invalid. Yet the acquisition miraculously remains valid, or remains at least a founding transgression which cannot be enquired into. Before bringing this strange prohibition on enquiry to the Canadian situation, there is another set of cases, these coming from South Africa, decided recently and after the accommodating contribution of Van der Peet. Those cases have been considered in some detail by Hanri Mostert and myself in that over-optimistic realm of academic self-reference known as ‘elsewhere’,63 and I merely mention them here so as to dramatize the significance of national sovereignty in that the South African cases arrive in the end at the same outcomes and in much the same ways as the Canadian, Australian and US cases, and indeed rely on these, but do so in the explicitly elevated setting of a liberated and democratic South Africa – not, that is, in the context of continually oppressive settler states. To focus now on the injunction against enquiry in the Canadian setting may not seem propitious in that the Canadian courts seem to have come entirely to avoid enquiry. Reassuringly, however, the demand for enquiry does invade the judgements of these courts in oblique and muted ways.64 Much more manifestly, however, there is a ‘blocking’ of judicial enquiry effected by an ‘unreflecting acceptance of the Crown’s assertion of sovereignty over Aboriginal peoples’, an assertion the effectiveness of which, in one pointed judicial estimate, there can ‘from the outset never [be] any doubt’.65 It is that sovereign assertion which ‘defines the terrain on which Aboriginal peoples must operate if they are going to dispute the Crown’s actions in Canadian Courts’.66 Such an encompassing outcome is already given by 61 Peter Fitzpatrick ‘“No higher duty”: Mabo and the failure of legal foundation’, 13 Law and Critique (2002) 233. 62 Ibid. at 246-7. 63 Hanri Mostert and Peter Fitzpatrick, ‘Law Against Law: Indigenous Rights and the Richtersveld Cases’, Law, Social Justice & Global Development Journal (2004 (2)), <www.go.warwick.ac.uk/elj/lgd/ 2004_2/mostertfitzpatrick> (visited 7 May 2005). 64 John Borrows, ‘Sovereignty’s alchemy: an analysis of Delgamuukw v. British Columbia’, 37 Osgoode Hall Law Journal (1999) 537, at 589-90. 65 Ibid. at 548, 562 n.134. 66 Ibid. 548.

Finnish Yearbook of International Law (Vol. XV, 2004) 142 __________________________________________________________________ way of reference to the precedent ‘authority’ of the cases we have just considered, authority already endowing pre-existent ‘structure and coherence’ on that outcome. 67 All of which is in a sense unexceptional since resort to authority of this kind is a standard mode of illusory reference, a covering of ontological bareness, characteristic of legal reasoning.68 In short, as a result of Van der Peet and Delgamuukw v. British Columbia 69 and other recent cases, now ‘Canada assumes that its acquisition of sovereignty and underlying title with respect to Indigenous peoples is unproblematic’. 70 As it is rendered in such cases, an entirely surpassing sovereignty effects a remarkable reversal. The seeming protection of Aboriginal rights in section 35(1) of the Constitution Act 1982, such rights being ‘hereby recognized and affirmed,’ becomes ‘potentially eliminative’ of these same rights. 71 There is yet some obeisance to plurality. ‘A court must take into account the perspective of the aboriginal people claiming the right’72 as well as the perspective of ‘the common law’.73 However, the ‘Aboriginal … perspective must be framed in terms cognizable to the Canadian legal and constitutional structure,’ for ‘aboriginal rights exist within the general legal system of Canada’.74 Even though the much vaunted purpose of section 35 is ‘reconciliation,’ this has to be a ‘reconciling of pre-existing Aboriginal societies with the assertion of Crown sovereignty over Canada’.75 Aboriginal title enters into contention only because it ‘crystallized at the time sovereignty was asserted’. 76 Nor can sovereignty’s diapason allow of a common idiom of contention. An attenuated noblesse oblige may allow of some recognition of an Aboriginal idiom, but evidence presented in that way must ‘not strain “the Canadian legal and constitutional structure”’.77 In all, the ostensible protection of Aboriginal rights in section 35 of the constitution amounts to no more than the legislature needing to have an ‘objective’ that is ‘compelling and substantial’ in order to eliminate them. 78 ‘The See Van der Peet (1996) 2 SCR 507, at para. 35. See Julius Stone, Legal System and Lawyers’ Reasonings (Stevens & Sons: London, 1964) at 339. 69 Delgamuukw v British Columbia (1997) 3 SCR 1010 (‘Delgamuukw’). 70 Michael Asch, ‘From terra nullius to affirmation: reconciling Aboriginal rights with the Canadian Constitution’, 17 Canadian Journal of Law and Society (2002) 23, at 23. 71 Gordon Christie, ‘Judicial justification of recent developments in Aboriginal law’, 17 Canadian Journal of Law and Society (2002) 41, at 58. 72 Van der Peet (1996) 2 SCR 507, at para. 49. 73 Delgamuukw (1997) 3 SCR 1010, at paras 147-8. 74 Van der Peet (1996) 2 SCR 507, at para. 49. 75 Ibid. at para. 57. 76 Delgamuukw (1997) 3 SCR 1010, at para. 145. 77 Ibid. at para. 82. 78 Ibid. at para. 161. 67

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The Unchallengeable Nation 143 __________________________________________________________________ range of legislative objectives that can justify the infringement of Aboriginal title is fairly broad,’ added Chief Justice Lamer before going on helpfully to list an enormously ‘broad’ set of indicative ‘objectives’.79 The terminus ad quem arrived at by the Chief Justice is that, in achieving such objectives, the very ‘limiting’ of Aboriginal rights – rights which can thereby be limited to extinction – is ‘a necessary part of the reconciliation of aboriginal societies with the broader political community of which they are part’.80 What follows from all this is a sustaining of the whole sorry and standard panoply of colonial encompassment: of the subordination and filtering of the ‘rights’ of the colonized through the benign hold of the colonizer; 81 of these ‘rights’ being confidently entrusted to the ‘honour and good faith’ of the colonizer; 82 of the ‘special bond’ tying the colonized to ‘the land,’ to inalienable land which cannot be used in any way that would ‘destroy’ its ‘unique’ value as part of their ‘traditional way of life’;83 of their laws, customs and very ‘aboriginality’ being dependent on a ‘highly contextual’ and factual finding by the courts of the colonizer. 84 As Chief Justice Lamer cautions, with emphasis, the rights which section 35(1) of the constitution ‘recognizes and affirms are aboriginal,’ and this ‘aboriginality’ means that the ‘rights cannot … be defined on the basis of the philosophical precepts of the liberal enlightenment,’ on the basis of their being ‘general and universal’.85 All of which imports a conception of rights that is intrinsically insupportable. Such putative ‘aboriginal’ rights are existently encompassed by blocks of temporality – blocks prescribed by judges in ways that are markedly and tellingly varied. A sampling: the so-called rights depend on their being ‘integral’ to a reified, a stunted ‘distinctive culture’ which is ‘pre-contact’; and such rights depend as well on their continuing in existence since ‘contact’.86 Or, with title to land, the temporal touchstone becomes the time at which the colonist arrogated ‘sovereignty’; but, again, there has also to be a continuing and broadly invariant occupation of the land combined in some miasmic measure with ‘aboriginal law’.87 Or it suffices for ‘the aboriginal right … to have been sufficiently significant and fundamental to the culture and social organization of the aboriginal group … for a substantial Ibid. at para. 165. Ibid. at para. 161. 81 E.g. John Westlake, ‘John Westlake on the Title to Sovereignty’ in P. D. Curtin (ed.) Imperialism (Macmillan: London and Basingstoke, 1971) at 47, 50-1. 82 Delgamuukw (1997) 3 SCR 1010, at paras 203-4. 83 Ibid. at paras 128-9, 194. 84 Van der Peet (1996) 2 SCR 507, at para. 130; Delgamuukw (1997) 3 SCR 1010, at para. 191. 85 Van der Peet (1996) 2 SCR 507, at paras 17-19. 86 Delgamuukw (1997) 3 SCR 1010, at paras 142, 189. 87 Ibid. at paras 142, 147, 194. 79 80

Finnish Yearbook of International Law (Vol. XV, 2004) 144 __________________________________________________________________ continuous period of time,’ with ‘the reference period of 20 to 50 years’ being helpfully advanced.88 And so on. The latter periodization, borrowed from Justice Heureux-Dubé, is part of her dissent from such pre-contact or sovereign retrospections as those just instanced. For her, these formulas recognise only ‘frozen rights’ by failing to ‘permit their evolution over time’; instead, there has to be a ‘dynamic right approach’ in which ‘aboriginal rights must be permitted to maintain contemporary relevance in relation to the needs of the natives as their practices, traditions and customs change and evolve with the overall society in which they live’.89 ‘Permitting’ rights to have this more indefinite temporal basis, however, only attenuates the more draconic formulations of her colleagues. This test still primally delimits the supposed rights in a way that is incompatible with the nature of rights.90 Bluntly, a right cannot be a rendering of the future in terms of a hypostatic past. Rather, rights are constituted iteratively in the converting of a past by way of its responsive relation to the future. It could be said, in some kind of descriptive sense, that such and such were the rights which certain people had in a past. But in a performative sense, and in an operatively legal sense, rights cannot be so hermetically contained. Doubtless, as Borrows points out, ‘there is a certain amount of truth to the statement that Aboriginal rights are fact and site specific’.91 This is so with any right. There has to be a pre-existent content to the assertion of a right, but the right cannot be enduringly confined to any pre-existent. As a normative claim on futurity, a right has to be able always to become other than what it ‘is’. It generatively trajects beyond any contained condition, temporal or otherwise. Such is the impelling element of a right’s being ‘general and universal’, of its surpassing any specificity – returning to Chief Justice Lamer’s ‘enlightened’ formulation.92 The instantiated sovereign seeks to encompass and embody right. The sovereign must, as we saw, originate and subsist not just in itself, in its instantiated and specific self, but also in relation to an infinite beyond of itself, a beyond inevitably contrary and contested. Assiduous enquiry into the constituent conditions of sovereign right would reveal its partial and provisional nature, would reveal that its ‘generality must [also] be specific’.93 It would reveal the historical and, which is Van der Peet (1996) 2 SCR 507, at paras 175, 178. Ibid. at paras 165, 170, 172. 90 This, and the other modes of delimitation, being facilitated perhaps by what Stone sees as ‘a tendency to identify the legal interests or “rights” in a thing with the thing itself’: Stone, Legal System, supra note 68, at 138. 91 John Borrows, Recovering Canada: The Resurgence of Indigenous Law (University of Toronto Press, 2002) at 65. 92 Van der Peet (1996) 2 SCR 507, at paras 17-19. 93 Franz Neumann, The Democratic and the Authoritarian State: Essays in Political and Legal Theory (The Free Press: Glencoe, 1957) at 28. 88

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The Unchallengeable Nation 145 __________________________________________________________________ the same thing, the continuing delimitation of its claim to authority. What shields Kant’s ‘supreme power’, what preserves Auden’s ‘folded lie’ that is ‘the State’, 94 is the attribution to it of a completeness, a universality in its ‘taking place’, thus obviating any contained relation to an origin, to anything beyond itself. 95 This is not only Kant’s own ‘extravagant pretension’, to borrow Marshall’s phrase. It is the operative claim of a modernist sovereignty, or of a sovereignty persisting into modernity. Supreme authority, then, is inevitably delimited in its finitude, yet its sovereign capacity must be elevated beyond limit; and this classic conundrum of sovereign power can in modernity no longer be solved, after a fashion, through a transcendental reference joining determinate rule to deific scope. So far the very vacuity and ‘extravagant pretension’ of cases of foundation may not disturb a like vacuity and extravagance of the sovereign claim to universality and infinite extension. And the injunction against enquiry in the more recent of these cases may shield a national sovereignty against, borrowing the term again from Mabo, ‘embarrassing’ revelation of the threadbare nature of sovereignty’s claim to an emplaced finitude or to a determinate authority. If, however, we go to the great originals in this line of cases, the so-called Indian cases in the United States, then we find an unabashed, if no less embarrassing identification of the determinate. We should come to this matter with the genealogical depth imported by Schmitt’s account of how the appropriations of the Americas could ‘take place’ as they did, and of how such appropriations accorded with the ‘spatial orders’ of occidental sovereignty and law.96 For present purposes, however, let me simply remark on a striking similarity. In the longue durée of the colonization of the Americas, Schmitt delineates its hypostatization as a fusion of an enveloping geography and cartography with a mix of militarism, science and culture.97 In a somewhat shorter durée, Marshall’s soaring global range emplaced indigenous peoples of the Americas within a transcendent domain of ‘our maps, geographical treaties’, ‘nautical science’, and ‘our arts and our arms’.98 In relation specifically to grounding the sovereign subordination of indigenous peoples, we saw that there was sufficient grounding quiddity for Marshall if this subordination were an inexorable response to the depraved condition of such peoples or if it simply flowed from the historical fact of ‘discovery’. Sovereign arrogation could also emanate for Marshall, just as simply, 94 Kant, Political Writings, supra note 37, at 147; W. H. Auden, ‘September 1, 1939’ in Selected Poems (Faber & Faber: London, 1979) at 88. 95 See Kant, Political Writings, supra note 37, at 143-4. 96 Carl Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum (translated by G.L. Ulmen, Telos Press: New York, 2003) at 98. 97 Ibid. at 107-8, 132. 98 Worcester (1832) 31 U.S. (6 Pet.) 515, at 543; Cherokee Nation v Georgia (1831) 30 U.S. (5Pet.) 1, at 15, 17 (‘Cherokee’).

Finnish Yearbook of International Law (Vol. XV, 2004) 146 __________________________________________________________________ from ‘the actual state of things’, or there was the deific fallback of its being brought about by ‘the Creator of all things’, or more robustly, by ‘the sword’; or it could, still simply, be that which has been ‘asserted’.99 Or, as Justice Johnson put it a little more expansively in deciding a case with Marshall, ‘it cannot be questioned that the right of sovereignty, as well as soil, was notoriously asserted and exercised by the European discoverers. From that source we derive our rights’, the questioning of which derivation by indigenous peoples being apt only for an ‘appeal … to the sword and to Almighty justice, and not to courts of law or equity’.100 So, the search for a determinate nation and its sovereign being returns us with a seeming inevitability to the sacred, either explicitly in the invocation of a deity, or in the surpassing, wilful assertion of the colonizer, a generative assertion endowing what would otherwise remain inert and inconsequential. The efficacy of that arrogation has been confirmed for our time by the finding of the South African Supreme Court of Appeal that the terms of colonization depend on the intent of the colonizer.101 The replete and permeating being of the colonizer is at one with the Kantian will which ‘proved to be the revolutionary source of the doctrine of national self-determination developed by his followers’.102 And this is nation constituted as ‘an undivided subject … possessed of a unitary self and a singular will that arose from its essence … [a subject] capable of autonomy and sovereignty’.103 Enclosed in its primal and pre-emptive completeness, such nation comes to what is beyond it with an appropriative sameness. To conclude, then, we could apply to this primal completeness of nation the radical criticism which Balibar would make of ‘the proposition presupposed by most of the arguments concerning politics and power: that an efficient action can take place only when the agent has an exclusive control over some resources and is able to use them as a unified “sovereign subject”, at the very least enjoying a stable and recognized identity’.104 Balibar’s criticism can, in turn, be exemplified in the ‘reconciliation’ provided for in section 35 of the constitution. The verb ‘to reconcile’ can import being acceptantly reconciled to something, reconciled to one’s fate for example. That is a meaning which operatively infects the noun ‘reconciliation’ as it is 99 Johnson (1823) 21 U.S. (8 Wheat.) 543, at 572, 574, 587-8, 591-2; Worcester (1832) 31 U.S. (6 Pet.) 515, at 543. 100 Cherokee (1831) 30 U.S. (5Pet.) 1, at 22, 52. 101 Mostert and Fitzpatrick, ‘Law Against Law’, supra note 63. 102 Smith, Chosen Peoples, supra note 8, at 11. 103 Gyan Prakash ‘Writing Post-Orientalist Histories of the Third World: Perspectives from Indian Historiography’, 32 Comparative Studies in Society and History (1990) 383, at 389. 104 Etienne Balibar, We, the People of Europe? Reflections on Transnational Citizenship (translated by James Swenson, Princeton University Press, 2004) at 221. I am indebted to Pablo Sanges Ghetti for this reference.

The Unchallengeable Nation 147 __________________________________________________________________ judicially extracted from section 35, a reconciliation of indigenous peoples to something that will always and ultimately require their submission. To what is complete and homogenous there can only be a reconciling to.105 But ‘reconciliation’ as a noun cannot be reconciled to such a claustration. In van der Walt’s luminous perception: ‘the patently reconcilable is in no need of reconciliation. It is the irreconcilable that calls for and opens up the possibility or perhaps of reconciliation’.106 And of such reconciliation there can be no end: it ‘is always to come’.107 Which is not to deny the impelling necessity of emplaced positions, of archaic formations, of things to be reconciled. Yet ‘displacement’ or ‘the process of dislocation is no less arch-originary, that is, just as ‘archaic’ as the archaism that is always dislodged’.108 So just as impelling as emplaced position is the displacement of position, the moving through and out beyond position receptively towards each other, impelling not just of a particular process of reconciliation but of our very being.

Cf. Borrows, Recovering Canada, supra note 91, at 89-90, 140-1. Johan van der Walt, ‘Psyche et sacrifice: Un essai sur le temps et l’heure de la reconciliation’ (translated by M.-H. Wilreker), 1 Revue des Lois & des Hommes (2003) 17, at 18 (his emphasis). 107 Ibid. at 21. The immediate quotations are from a text in English provided by van der Walt. 108 Jacques Derrida, Specters of Marx (translated by Peggy Kamuf, Routledge: New York, 1994) at 82. 105

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Risking Ethics Amy Levine*

Mundane Professionalizing I must begin with a personal confession. This paper is my first attempt to make ethnographic sense of a series of experiences that I had previously understood as being just a part of my everyday existence as a graduate student – a continuous stream of conversations with students and professors that is at times punctuated by classes, lectures, and conferences. To be sure this is an existence of training – one taken as increasingly professional at that, even in my own field of anthropology. Urges to approach comprehensive exams as the selection of future scholarly specialities and filtered reminders of the difficulties of the academic job market give this often times ‘naïve’ and ‘self-indulgent’ existence its professional charge. Both naïveté and self-indulgence are important here for different reasons. Historically, the first term has been central to how anthropologists have approached their subjects. Naïveté used to be an inherent condition of conducting fieldwork among radically different others. However, as anthropologists have come to study people more like themselves, this condition can no longer be taken for granted – it must instead be cultivated. Meanwhile, it has been the quality of anthropological ethnography that has attracted scholars from other disciplines to the method, as most recently with science studies.1 Yet even as these scholars are increasingly

* Cornell University. I wish to thank Leticia Barrera, Jason Cross, Jason Ettlinger, Miia Halme, Hiro Miyazaki, Annelise Riles, and an anonymous FYBIL reviewer for their generous and incisive comments. 1 e.g., Bruno Latour and Steve Woolgar, Laboratory Life: The Construction of Scientific Facts (first published 1979) (Princeton University Press: Princeton, NJ, 1986); Bruno Latour, Science in Action: How to Follow Scientists and Engineers through Society (Harvard University Press: Cambridge, MA, 1987); Michael Lynch, Art and Artifact in Laboratory Science: A Study of Shop Work and Shop Talk in a Research Laboratory (Routledge & Kegan Paul: London, 1985).

Finnish Yearbook of International Law (Vol. XV, 2004) 150 __________________________________________________________________ attracted to anthropological methods, anthropologists are confronting the limits of their own naïveté.2 Lawyers have played no small part in this realization as anthropologists have worrisomely observed how their insights have been put to unforeseen uses in, for example, human rights and property debates. These observations have further solidified the already negative image that most anthropologists hold of lawyers, particularly in the United States. This stereotypical image typically includes charges of money-hungry, culturally insensitive, politically (neo-liberally) dubious, and ‘normative’ practice in opposition to the humanistic, culturally sensitive, politicallyminded, and ‘self-reflexive’ labels that anthropologists often affix to their own practice. These anthropological stereotypes of lawyers lead me to the importance of the second term – self-indulgence – as it provided a glimpse of the stereotypes that lawyers hold of anthropologists in kind. Specifically, this was the derogatory label that a law student used to describe ethnography during an interdisciplinary seminar. Having never heard nor thought of ethnography in quite this way, I began to reflect upon and subsequently recast some of my views of lawyers and anthropologists. In the process, I drew upon classroom discussions and more informal conversations with a handful of law students over the course of a semester in which we took the aforementioned interdisciplinary seminar, various lectures and conferences organized by the law school’s program on law and culture, and several more informal conversations with law students and professors. What emerged from these shared professionalizing experiences with law students was the opportunity to reflect on reciprocal stereotypes as they were being made. More importantly, however, is that these experiences became a fruitful site of reflection on what is ethical. Ethics, after all, are a central part of what both law school and anthropology programs must teach their students in order to make them into professionals. This is what is at stake in these familiar stereotypes – judgment on the order of good and bad practice. My challenge would therefore be to better understand just what constitutes being a professional for both lawyers and anthropologists without giving into these stereotypes. To be sure, these experiences do not constitute the conventional anthropological conception of fieldwork. This typically entails learning another language, spending one to two years living and working with one’s informants, and eventually ‘writing up’ these experiences as a dissertation. The experiences that I recount and reflect upon below were, however, never meant to be this. They have 2 E.g., Aihwa Ong and Stephen J. Collier (eds.), Global Assemblages: Technology, Politics, and Ethics as Anthropological Problems (Blackwell: Malden, MA, 2005); Anna Tsing, Friction: An Ethnography of Global Connection (Princeton University Press: Princeton, NJ, 2005).

Risking Ethics 151 __________________________________________________________________ instead formed the background of my mundane graduate student existence, which has been ostensibly about training to conduct ethnography at another fieldsite altogether. Yet as any diligent ethnographer-in-training, I treated all such experiences as sources of potential future insight.3 What I offer below is an attempt to make good on this training by self-consciously taking a risk. To do so is an attempt to cultivate what is naïve, or ‘amateuristic4’ about the ethnographer-in-training.

Ethnography in Training I became aware of the importance of risk-taking to ethnographic work at a fortunately early point in my training. As an undergraduate anthropology major, I was encouraged to take a summer fellowship opportunity in what would turn out to be my future fieldsite. At the time, I was just following my curiosity in activism and East Asian philosophy without recognizing the significance of the risk I was taking in ‘placing one’s self in the hands of others.’ 5 Fortuity in finding good others enabled me not to see much of this personal risk, but to instead focus on the risktaking of those others. Because they were activists, I came to associate risk-taking with activism. Only with later self-conscious risks both at my fieldsite and in graduate school did I come to ‘appreciate’ the inherent risk-taking of activist6 and ethnographic practices.7 Retrospectively, I came to see that risk-taking only appeared with the disappearance of my self. Anthropologists, however, have historically been interested in self-knowledge even as they have directed their gaze toward others. In the discipline’s selfacknowledged role as a ‘child of the European Enlightenment’ and colonialist project, anthropologists saw themselves as ‘revolutionary’ in studying ‘people off the mainstream of contemporary civilization.’8 This ‘revolutionary’ promise was the act 3 Marilyn Strathern, Property, Substance and Effect: Anthropological Essays on Persons and Things (Athlone Press: London, 1999). 4 Annelise Riles, ‘Encountering Amateurism: John Henry Wigmore and the Uses of American Formalism,’ in Annelise Riles (ed.), Rethinking the Masters of Comparative Law (Hart Publishing: Oxford, 2001). Annelise Riles, ‘Collateral Knowledge’, paper delivered at Hope in the Economy conference, Cornell University, April 2, 2005. 5 Marilyn Strathern, personal communication at Anthropology of Human Rights Administrations: Expert Observation and Representation After the Fact workshop, April 9-10, 2004. 6 Tsing, ‘Friction,’ supra note 2, at 228. 7 Hirokazu Miyazaki, The Method of Hope: Anthropology, Philosophy, and Fijian Knowledge (Stanford University Press: Stanford, CA, 2004); Annelise Riles, The Network Inside Out (University of Michigan Press, 2000); Annelise Riles, ‘Introduction,’ in Annelise Riles (ed.), Documents: Bureaucratic Authorship, Academic Collaboration, and Ethnographic Response (forthcoming). 8 Stanley Diamond, ‘A Revolutionary Discipline,’ 5 Current Anthropology (1964) 432-437 at 432.

Finnish Yearbook of International Law (Vol. XV, 2004) 152 __________________________________________________________________ of examining oneself and society in light of these radically different others. The widely acknowledged forefather of modern ethnography, Bronislaw Malinowski, said: We cannot possibly reach the final Socratic wisdom of knowing ourselves if we never leave the narrow confinement of the customs, beliefs and prejudices into which every man is born. Nothing can teach us a better lesson in this matter of ultimate importance than the habit of mind which allows us to treat the beliefs and values of another man from his point of view.9

Malinowski, like the discipline as a whole, was later severely critiqued for his avoidance of colonialist history and its effects.10 These anti-colonialist and postcolonialist critiques forced anthropologists to confront culturally presumptuous and non-historical representations of their subjects.11 As a result, there was a turn to historical research and literary criticism in an effort to complicate these representations. What emerged was the ‘crisis of representation’ in the mid-1980s. Anthropologists became ‘self-reflexive’ authors and cultural critics as they openly questioned their epistemological authority and disciplinary conventions.12 The concept of culture itself, for example, became highly problematic. 13 Much of the legacy of this ‘reflexive turn’ has been to call attention to the self as fieldworker and author. This has been one way in which anthropologists have held themselves responsible, or ‘ethically accountable,’ for their representations of others.14 Activistinspired anthropologists have even sought to hold themselves responsible for 9 Bronislaw Malinowski, Argonauts of the Western Pacific: An Account of Native Enterprise and Adventure in the Archipelagoes of Melanesian New Guinea (first published 1922) (Waveland Press: Prospect Heights, IL, 1984) at 518. 10 E.g., James Clifford, The Predicament of Culture: Twentieth-Century Ethnography, Literature, and Art (Harvard University Press: Cambridge, MA, 1988); James Clifford and George E. Marcus (eds.), Writing Culture: The Poetics and Politics of Ethnography (University of California Press, 1986); Akhil Gupta and James Ferguson (eds.), Anthropological Locations: Boundaries and Grounds of a Field Science (University of California Press, 1997). 11 Bernard S. Cohn, An Anthropologist Among the Historians and Other Essays (Oxford University Press, 1990); John Comaroff and Jean Comaroff, Ethnography and the Historical Imagination (Westview Press: Boulder, CO, 1992); Johannes Fabian, Time and the Other: How Anthropology Makes Its Object (Columbia University Press: New York, 1983); Nicholas Thomas, Entangled Objects: Exchange, Material Culture, and Colonialism in the Pacific (Harvard University Press: Cambridge, MA, 1991). 12 Clifford and Marcus, Writing Culture, supra note 10; George E. Marcus and Michael M.J. Fischer, Anthropology as Cultural Critique: An Experimental Moment in the Human Sciences (University of Chicago Press, 1986). 13 Clifford, The Predicament of Culture, supra note 10. 14 Carol J. Greenhouse, ‘Introduction: Altered States, Altered Lives,’ in Carol J. Greenhouse, Elizabeth Mertz, and Kay B. Warren (eds.), Ethnography in Unstable Places: Everyday Lives in Contexts of Dramatic Political Change (Duke University Press: Durham, NC, 2002) 1-32 at 23.

Risking Ethics 153 __________________________________________________________________ unknown risks.15 This sense emerged strongly during a 2004 conference entitled, ‘Anthropology of Human Rights Administrations: Expert Observation and Representation After the Fact,’ in which a participant wished to ‘take responsibility, but without knowing what for.’ Yet risk-taking has been just as much a part of this legacy of reflexivity. Articulations of ‘reflexive modernization16’ and ‘risk society17’ expressed an inherent irreducible contingency to modern social thought and institutions. For anthropologists, these efforts demonstrated what was at stake as they turned from studying villages to modern institutions.18 With this turn in research subjects, reflexivity became the capacity for change in anthropologists’ own research processes. As anthropologists undertook ‘multi-sited’ research projects inside policy, science, and industrial institutions, they saw their work as being ‘more risky’ because what was ‘at stake’ was not just disciplinary conventions and norms, but the capacity to shape the very discourses they were studying.19 This energizing capacity for change has since given way to more sobering assessments. For example, how informal dispute resolution helped make the Alternative Dispute Resolution movement in the U.S.20, how the much critiqued concept of ethnicity not only still has tremendous purchase, but has produced deadly effects in the world21, how anthropological data has been used to support neo-liberal property regimes 22, and how the concept of culture has been taken up in the human rights debate.23 What began as taking a risk has come to feel like ‘interpolation.’24

15 Kim Fortun, Advocacy After Bhopal: Environmentalism, Disaster, New Global Orders (University of Chicago Press, 2001). 16 Ulrich Beck, Anthony Giddens and Scott Lash, Reflexive Modernization: Politics, Tradition and Aesthetics in the Modern Social Order (Stanford University Press: Stanford, CA, 1994). 17 Ulrich Beck, Risk Society: Towards a New Modernity (Sage: Thousand Oaks, CA, 1992). 18 George E. Marcus, ‘Critical Anthropology Now: An Introduction,’ in George E. Marcus (ed.), Critical Anthropology Now: Unexpected Contexts, Shifting Constituencies, Changing Agendas (School of American Research Press: Santa Fe, NM, 1999) 3-28. 19 Ibid, at 27. 20 Laura Nader, The Life of the Law: Anthropological Projects (University of California Press, 2002); Annelise Riles, ‘User Friendly: Informality and Expertise,’ 27 Law and Social Inquiry (2002) 613-619. 21 Douglas R. Holmes, Integral Europe: Fast-Capitalism, Multiculturalism, Neofascism (Princeton University Press: Princeton, NJ, 2000); Bill Maurer, Recharting the Caribbean: Land, Law, and Citizenship in the British Virgin Islands (University of Michigan Press, 2000). 22 Annelise Riles, ‘Property as Legal Knowledge: Means and Ends,’ 10 Journal of the Royal Anthropological Institute (N.S.) (2004) 775-795. 23 Sally Engle Merry, ‘Human Rights Law and the Demonization of Culture (And Anthropology Along the Way),’ 26 Political and Legal Anthropology Review (2003) 55-76; Richard A. Wilson (ed.), Human Rights, Culture & Context: Anthropological Perspectives (Pluto Press: London, 1997). 24 Riles, ‘Introduction,’ supra note 7.

Finnish Yearbook of International Law (Vol. XV, 2004) 154 __________________________________________________________________ Now is a difficult time in which to take a risk, particularly when anthropologists are called upon and seeking to take responsibility for unintended and unknown effects. This is what I have come to appreciate as an ethical challenge – one that demands reflexivity not so much in terms of self, but ‘cognizance of risks.’25 This is a challenge that I see critical legal scholars26 and lawyers-in-training sharing. My experiences with both has convinced of this shared attention to what is ethical, which entails both risk and responsibility-taking. To do both well is to be a ‘professional’ in both fields. Yet as I would come to learn, anthropologists-intraining and lawyers-in-training have different conceptions of just what constitutes risk and responsibility-taking. To anticipate the argument, I take differing conceptions of the self to be central to these differences in professionalization. I came to learn many of these differences through a great deal of frustration over the course of a semester in 2004 in which I shared readings, class discussions, and informal conversations with a handful of law students. The extent to which this frustration has disappeared, much as my self previously did with activists, is the extent to which I have been able to take a risk and offer these experiences as ethnographic reflection. It is not a risk for self-knowledge, as much previous anthropological ethnography has taken, but a self-conscious risk for shared knowledge. What I mean by such a risk has only been possible in being conscious of not only my own frustration, but that of the law students. It was this shared frustration about differing disciplinary conceptions of the self that ultimately allowed me to appreciate the shared knowledge of what is ethical. As I will attempt to demonstrate, attention to this shared ethics of risk and responsibility-taking demands less ‘care of self27,’ and more care of relations with informants, colleagues, and audience.28

Case Methods The difficulty of doing such work, particularly across disciplines, was made evident with the first meeting of the seminar, a cross-listed course in both the law school 25 Kunal M. Parker, ‘Thinking Inside the Box: A Historian Among Anthropologists,’ 38 Law and Society Review (2004) 851-860 at 859. 26 E.g., David Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (Princeton University Press: Princeton, NJ, 2004); Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Lakimiesliiton kustannus: Helsinki, 1989); David M. Trubek and Marc Galanter, ‘Scholars in Self-Estrangement: Some Reflections on the Crisis of Law and Development Studies in the United States,’ 4 Wisconsin Law Review (1974) 1063-1102. 27 Paul Rabinow, Anthropos Today: Reflections on Modern Equipment (Princeton University Press: Princeton, NJ, 2003) at 7. 28 Riles, ‘Introduction,’ supra note 7; Marilyn Strathern, The Relation: Issues in Complexity and Scale (Prickly Pear Press: Cambridge, 1995).

Risking Ethics 155 __________________________________________________________________ and anthropology department. The professor, Annelise Riles, who holds both a JD and PhD in anthropology, offered this work as a challenge. She asked that both law and anthropology students 29 approach readings and class discussions ‘ethnographically.’ By this she explained what she meant as being a skill – one that entails being involved in a conversation and reflecting upon it at the same time such that its assumptions and misunderstandings can be grasped. As she described some of her own difficulties with doing this, I glanced up from my note-filled page to see that all of the law students had put down their pens or, more commonly, taken their hands off the keyboards of their laptops. After class banter made it clear that many of them were more concerned with having to read and discuss books again, which a couple students joked that they had not done since being undergraduates. When I seemed puzzled, one of the students, Regan, explained that law students do not read books from cover-to-cover, but deal with cases out of their casebooks. She went on to say that she was looking forward to getting back to such practices, as she had enjoyed seminars as a religious studies undergraduate major. I would soon get a closer look at such reading practices when I met another law student just before our next class meeting in preparation for leading that class’s discussion. Tony, one of the older and most talkative students throughout the semester with an interest in Chinese law, filled me in on this ‘case’ approach. What became clear as he spoke is that the two of us had very different ideas about it. For an anthropologist, ‘case method’ is an important and foundational part of early to mid-twentieth century legal studies. At that time, anthropologists like Max Gluckman and E. Adamson Hoebel popularized this method with direct inspiration from and collaboration with the Legal Realist movement. Most particularly with the legal scholar and anthropology enthusiast Karl Llewellyn.30 What is important to note about the Legal Realists is their foundational critique of the formalism of the Langdellian ‘case method,’ which still forms a central, yet declining part of American legal pedagogy.31 In total there were between 10-15 students in the seminar, which met once each week for two hours over the course of a 14-week semester. Of these, all were law students except three – one came from Asian Studies and two from anthropology, including myself. All of the law students held bachelors degrees, as is required for admittance to American law schools. They were also either second or thirdyears, which is when I was told taking ‘electives,’ or classes outside of the law school, was possible. Among the law students, participation varied dramatically – some hardly ever spoke in class and others spoke often and were eager to chat even outside of class. My observations are based mainly on those that fell in the latter category, all of whom appear by name, which have been changed. 30 Max Gluckman, The Judicial Process Among the Barotse of Northern Rhodesia (University of Manchester Press, 1955); Karl N. Llewellyn and E. Adamson Hoebel, The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence (University of Oklahoma Press, 1941). 31 Elizabeth Mertz, ‘Recontextualization as Socialization: Text and Pragmatics in the Law School Classroom,’ in Michael Silverstein and Greg Urban (eds.), Natural Histories of Discourse (University of Chicago Press, 1996) 229-252; Elizabeth Mertz, ‘Teaching Lawyers the Language of Law: Legal and 29

Finnish Yearbook of International Law (Vol. XV, 2004) 156 __________________________________________________________________ As Tony and I struggled to get our footing for how to go about presenting general discussion questions to the class, it became clear that much of our frustration revolved around these differences. Specifically, Tony’s matter-of-fact proclamation that ‘the devil is in the details’ did not help much because we had differing conceptions of just what constituted a detail. Where I was drawn to what could loosely be called ‘realist’ details like setting characteristics and political alliances, Tony was drawn to what could loosely be called ‘formalist’ details like points of legal fact and process. The object of our discussion was Frank Upham’s Law and Social Change in Postwar Japan, a foundational socio-legal work on law and social movements in Japan that includes discussion of some of the most important legal and political battles in that country over the last half of the twentieth century. So, for example, when Tony said that he was fascinated by the chapter on the Burakumin, I initially thought he was referring to their outcaste status and political organization. His fascination instead ended up being about how they were able to use this status to bring about legal change. He proceeded to grapple with how ‘the law operates in Japan’ by visualizing it as a ‘car’ driven by the ‘triumvirate’ of bureaucrats, judges, and occasional social movements. Tony had a talent for offering up metaphors of the law, which he would do again in a moment of exasperation. This exasperation came about during class discussion of two books: Eric A. Feldman’s The Ritual of Rights in Japan: Law, Society, and Health Policy and Michael F. Brown’s Who Owns Native Culture? The first book is a socio-legal and historical study of the translation and articulation of rights in Japan. It challenges previous readings of Japanese legal, political, and social norms as being antithetical to rights by arguing that the ‘ritual’ articulation of rights is critical to dispute resolution. The second book offers a collection of case studies – from Australia to the United States – of the increasing efforts of indigenous peoples to redefine their culture as property. Brown critiques these efforts as reproductions of corporate privatizating logic and argues instead for an alternative that better captures the freedom of pluralist democracies. What was immediately clear in our discussion was how much the law students liked Brown’s book as much as they disliked Feldman’s book. They saw Feldman as just pointing out what they already knew about rights – namely, that they are legal, political, and cultural. Tony, in particular, critiqued Feldman for narrowly assuming too little about rights in Japan in order to construct his argument. The sense was that Feldman was presenting a ‘muddled’ picture of rights – a critique that many of the anthropologists in the room seemed to share. In contrast, Tony and Regan pointed out how successful Brown was in capturing the contradictions and Anthropological Translations,’ 34 John Marshall Law Review (2000) 91-117; Riles, ‘Encountering Amateurism,’ supra note 4; Riles, ‘Property as Legal Knowledge,’ supra note 22.

Risking Ethics 157 __________________________________________________________________ dilemmas of indigenous rights claims. They summed it up as Brown’s evident struggle in ‘trying to reconcile.’ Anthropologists have similarly praised this kind of struggle as ‘a striking instance of the sort of ambiguous issues that, while they are resolved under the authority of courts, remain unresolved problems for extended cultural analysis…’.32 In other words, the same ‘unresolved’ quality that attracted the law students to Brown’s analysis has also attracted many anthropologists to legal subjects like indigenous rights claims. Brown himself is one such anthropologist. I only began to see this connection when Professor Riles interrupted the praise of Brown with a critique. She said that she found his descriptions to be overly ‘familiar,’ almost as if they were ‘hypotheticals.’ These hypotheticals, as I would later come to learn, appear as ‘gaps’ inviting the manipulation of legal doctrine for law students much as they appear as ‘gaps’ inviting cultural analysis for anthropologists.33 Yet at the time all that I noticed was how this comment dramatically shifted the tenor of the discussion. What were previously positive attributions of ‘trying to reconcile’ became negative accusations of ‘having an agenda.’ Tony seemed particularly vexed by this shift and in a more exasperated moment after class asserted that history and context cannot ‘move the machinery of law.’ He came to see Brown as a dangerous ‘slippery slope’ that could be used by lawyers ‘to justify the status quo and deny justice.’ This extreme reaction provided a first glimpse of Tony’s tormented relationship to the law. His exasperation and disappointment with the critique of Brown revealed how much he wanted to believe in the book’s attempt to problematize easy legal solutions to difficult problems like indigenous rights. Once this problematization was compared to the legal hypothetical, Tony began to question the ability of any outside force, such as history and context, to change the law. To be sure, Tony is a unique law student. Yet I have since come to appreciate his exasperation as emblematic of much of the current anthropological, socio-legal, and critical legal scholarship. History and context have been key tools in these shared attempts to critique the law, which have often met a similar fate in failing to move its ‘machinery.’34

George E. Marcus, Ethnography Through Thick and Thin (Princeton University Press: Princeton, NJ, 1998) at 28. 33 Riles, ‘Property as Legal Knowledge,’ supra note 22. 34 E.g., James Ferguson, The Anti-Politics Machine: ‘Development,’ Depoliticization and Bureaucratic Power in Lesotho (Cambridge University Press, 1990); Balakrishnan Rajagopal, International Law From Below: Development, Social Movements, and Third World Resistance (Cambridge University Press, 2003). 32

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Creating Reality and Critique This points up a recurrent source of frustration for these legal critics – inclusive of socio-legal, critical legal and anthropological scholars, as well as law students like Tony – that has begun to be redressed.35 Namely, that lawyers and their critics have different conceptions of ‘the real’ and their relationship to it. In addition, legal critics differ on this crucial point, as I will soon discuss. Yet all of these critics share a Legal Realist heritage, which is built upon a critique of formalism. When Tony praised Brown for how he captured the contradictions and dilemmas of indigenous rights claims, he was praising the book’s realism, which is what he often saw formalist law as oversimplifying, as he accused Feldman of doing to rights in Japan. Professor Riles’s critique not only challenged this view of reality, but asserted it to be an effect of a well-known legal (formalist) tool – the hypothetical. This tool is one of the ways that law students are taught to ‘imagine the real.’36 This reality appears difficult and unresolved only insofar as it provides the necessary ‘facts’ to reach a decision, which then becomes precedent for subsequent decisions.37 In this way, law not only imagines the real, but selfconsciously creates it in its own image. This is not unlike how scholars have described economic theory as ‘performing’ the very reality that it purports to analyze.38 Legal critics often imagine a different relationship to reality, however. For anthropologists, this relationship has been descriptive, and at times explanatory, but not often ‘performative’ or creative. Marilyn Strathern, for example, has long pointed out how anthropologists imagine their descriptions to be separate from what they describe. This separation, or ‘hierarchy,’ between representation and reality can be seen as an effect of the pervasive social scientific view that treats law as separate from and ‘controlling’ society.39 Law and society scholars have argued

35 Alain Pottage and Martha Mundy (eds.), Law, Anthropology, and the Constitution of the Social: Making Persons and Things (Cambridge University Press, 2004); Riles, ‘Property as Legal Knowledge’, supra note 22. 36 Clifford Geertz, Local Knowledge: Further Essays in Interpretive Anthropology (Basic Books: New York, 1983) at 173. 37 Riles, ‘Property as Legal Knowledge,’ supra note 22, at 783. 38 Michel Callon, ‘Introduction: The Embeddedness of Economic Markets in Economics,’ in Michel Callon (ed.), The Laws of the Market (Blackwell: Malden, MA, 1998) 1-57; Donald MacKenzie, ‘Physics and Finance: S-Terms and Modern Finance as a Topic for Science Studies,’ 26 Science, Technology & Human Values (2001) 115-144. These notions of performance resonate with that of feminist scholars theorizing gender, which will peripherally appear later in this article. See, for example, Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (Routledge: New York, 1990). 39 Marilyn Strathern, ‘Discovering “Social Control,”’ 12 Journal of Law and Society (1985) 111-134 at 112.

Risking Ethics 159 __________________________________________________________________ just this and sought to counter this view by treating ‘law in society’.40 Feldman’s book was an example of doing just this in showing the social ‘ritual’ of ostensibly legal rights in Japan. Yet this kind of argument merely replaces law with society as the ultimate ‘controlling’ mechanism by equating it with what law was previously seen as doing, e.g. regulating ‘normal’ behavior. 41 Strathern, in fact, has argued that it is this view of society among anthropologists, and social scientists more generally, that has led to the persistent separation between representation and reality. 42 Critical legal scholars, who have often been trained as and are practicing lawyers, typically do not exhibit this same separation between theory and practice. Once more, they critique not only formalist legal methods that place law above society, but also the anthropological and socio-legal efforts that merely attempt to reverse this hierarchy. This position has confused other legal critics – namely, anthropologists. Laura Nader, for example, noted sharp disagreement at a Law and Society Association meeting to the proposed ‘law in society’ change. 43 She set this aside with, ‘Somehow law is conceived of as in reality being a system independent of society and culture; in the case of legal scholars in particular, their “professionalism” seems to encourage such a position’. 44 This quote contains not only an anthropological critique of lawyers taking the law as literally separate from society45, but vaguely attributes this to legal ‘professionalism.’ My interest in this paper is not to critique such professionalism, but to attempt to understand how it operates, as with the hypothetical. Particularly since this professionalism appeared to me as a kind of torment that, as with Tony, both attracted one to, and repulsed one from the law. Critical legal scholars appear to be similarly critiquing precisely what they find to be so attractive about the law – its formalism.46 These two kinds of torment, for the lawyer-in-training and critical legal scholar, would eventually meet in seminar discussions. Yet before getting there, it is necessary to trace the torment of another law student in the seminar, Mike. To do so will reveal the importance of constraint, particularly of one’s self, in the process of legal professionalization.

Laura Nader, ‘Introduction,’ in Laura Nader (ed.), Law in Culture and Society (first published 1969) (University of California Press, 1997) 1-10 at 8. 41 Strathern, ‘Discovering “Social Control,”’ supra note 39, at 129. 42 Ibid at 112. 43 Nader, ‘Introduction,’ supra note 40, at 8. 44 Ibid at 8; emphasis added. 45 For further anthropological inquiry into literal views of the law see Sally Falk Moore, ‘General Introduction,’ in Sally Falk Moore (ed.), Law and Anthropology: A Reader (Blackwell: Malden, MA, 2005) 1-4 at 4. 46 E.g., Duncan Kennedy, ‘Legal Formality,’ 2 Journal of Legal Studies (1973) 351-364. 40

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Creative and Empirical Constraints Mike, a close friend of Tony’s and oldest among all the students, had an extensive background in analytical philosophy. He often spoke of his arrival in law school as a ‘late’ attempt in life to do something more ‘practical.’ In seminar discussions, this often took the form of grappling with and persuading others to consider the ‘empirical’ and ‘ethical’ implications of law, just as Tony struggled with moving its ‘machinery.’ The two of them would often disagree and balance each other out to maintain an always detectable sense of torment toward the law. It is important to add that they were the most vocal law students in the seminar and that when others spoke, they would often subtly challenge this view. The first of these disagreements between Mike and Tony revolved around Yves Dezalay and Bryant Garth’s The Internationalization of Palace Wars: Lawyers, Economists, and the Contest to Transform Latin American States. This work is a sociological and critical legal history of knowledge exports such as neo-liberal economics and the international human rights discourse from the United States to Argentina, Chile, Brazil, and Mexico since World War II. Dezalay and Garth are particularly interested in how these knowledge exports shaped domestic power struggles – or what they call ‘palace wars’ following French sociologist Pierre Bourdieu – in each of these Latin American countries. Mike reacted strongly and negatively to the book. He described it as a ‘modern, instrumental, agnostic wasteland’ that ‘depressed’ him. When pushed by others, he elaborated that this depression was due to seeing all ideas as ‘technical tools’ and not being able to recognize ‘non-elite agency’ or ‘public interest law’ in the book’s descriptions. This last point became clearer when other law students added their surprise at seeing human rights, a kind of ‘public interest law,’ as an ‘international’ instead of ‘grassroots clinic’ practice. Tony, on the other hand, was energized by seeing ‘the significant importance of ideas’ in the book. In other words, he was able to see the ability of ideas like human rights to ‘move the machinery of law.’ Tony went so far as to agree that the law is ‘creative’ when Regan included this as part of her description of the law that she saw reflected in the book. Regan explained that as a law student she does not learn ‘theory,’ but ‘issues, rules of application, and fact patterns’ in the ‘function of getting the win.’ For her this was ‘creative,’ but it soon ceased to be for Tony. When Mike emphasized that such ‘ideas’ were merely ‘technical tools’ external to the ‘internal power struggles’ of elites, Tony withdrew his earlier assertion about the ‘creativity’ of the law. What is important to note here is how Mike was able to persuade Tony to change his mind. Where Tony first saw the possibility of external ‘ideas’ being able to ‘move the machinery of the law,’ he later came to see the ‘external tools’ of an elite in the service of preserving their own power. In other words, even if change

Risking Ethics 161 __________________________________________________________________ got inside the elite ‘machinery,’ it was only because it was in elite interests. What became clear over the course of the semester is that this kind of change was not ‘social’ or ‘ethical’ for Mike or Tony. One could imagine this viewpoint coming from numerous ‘law in society’ scholars and anthropologists such that the other anthropology student in the seminar, Jason, and I never had to occupy it. This refusal to assume the expected anthropological position, such as to support a Bourdieuian analysis, elicited varied reactions from the law students. Whereas it seemed to disarm and foment curiosity about anthropology for most, it elicited confusion and mild hostility from Mike and Tony. What distinguished Mike and Tony from the other law students in the seminar was their relationship to the law. It was tormented to be sure, but more specifically, it took law’s constraints to be oppressive where others found them creative. This difference became sharpest in our discussion of Adam Reed’s Papua New Guinea’s Last Place: Experiences of Constraint in a Postcolonial Prison. This book was unlike any others we had read insofar as it did not deal with either law or society in their typical forms. It is an ethnography of inmates’ experiences of detention, separation, and loss in a Papua New Guinean prison. Reed is particularly interested in not only the negative, but creative potential of constraints that comprised these prisoners’ lives. This central focus on constraint elicited a great deal of reflection among the law students about its place in legal practice. The aforementioned fact patterns, rules, and procedures were mentioned, but the law students were most interested in time as a constraint. Steven, an often silly yet incisive law student, joked about how much time he had spent preparing his presentation for class; Regan mentioned statutes of limitations; Tony the ‘timeless’ character of law; and then a law student who rarely spoke, Christina, asserted that ‘without time we could not be human’ and that law’s timelessness is what gives it ‘institutional legitimacy.’ Christina then went on to point out the importance of ‘anticipation’ in how judiciaries produce law. Most of the law students were not only able, but excited to find examples of constraint in law. Reed’s embrace of the creativity of constraint seemed empowering to many of the law students. In fact, more spoke during this discussion than any other. Yet they remained unconvinced of constraint in anthropological practice. Regan, for example, said that Reed, unlike the prisoners he studied, ‘could leave anytime he wanted to.’ The implication was that the prisoners’ and Reed’s constraints were not comparable, as the implication would later become that legal and anthropological constraints, more generally, were not comparable. I will return to this point later, but for now it is only important to note that there is a difference in what counts as constraint for the law students. As often occurred, Mike interrupted this increasing affirmation of law with a critique. When conversation turned to the place of gender in the book, Mike

Finnish Yearbook of International Law (Vol. XV, 2004) 162 __________________________________________________________________ asserted that the law is ‘insensitive to empirical constraints like gender.’ What was striking about this comment was how it transformed what constraint was to the law. Mike shifted it from a source of internal creativity on the order of time to a reality of external immutability on the order of ‘gender.’ This elicited spirited opposition from another mostly silent law student, Kelly, who instead called gender a visible ‘jail’ in the law. This debate carried on after class, during which time Steven, Kelly, Tony and Mike traded stories of law professors’ handling of gender and some ‘hypos’ (hypotheticals). Mike expounded on what he meant by the absence of gender in the law. He said that it was ‘submerged’ such that it did not even register in hypotheticals, which he took to be a constrained form of reality. After Kelly and Steven had left with little disagreement, Mike and Tony continued to explain to me how this was achieved. They described how law school ‘separates’ one from the self in the sense of being raced, classed, or gendered.47 It does this by teaching one to be ‘moderate,’ which they described as not taking ‘positions’ or demonstrating ‘conviction.’ These were the types of oppressive constraints that they chose to highlight in contrast to the creative offerings of most of the class. More importantly, these ‘empirical constraints’ were what always remained outside of law for Mike and Tony even if they were seen to be central to its practice. For example, they both agreed with my proposition that this ‘separation from the self’ was what enabled law students to ‘argue both sides’ of an issue. Yet this most legal of practices held little promise or creativity for them in comparison to the reality that it constrained. This remarkable separation between law and reality, or what is ‘empirical,’ is similar to the view of many legal critics. Here again any impulse to assert the existence of ‘law in society,’ as an anthropologist would be expected to do, was rendered superfluous. Mike would, however, make a crucial revision in this separation between law and reality in our discussion of Duncan Kennedy’s A Critique of Adjudication: Fin de This sense of anonymity appeared in remarkable form as a popular internet blog at the time of the seminar. Anonymous Lawyer, the name of this blog that began in March 2004, had attracted thousands of lawyers from across the U.S. to reading the self-professed fictional accounts of a ‘petty, cynical, soulless, and sexist’ partner in a Los Angeles corporate firm. Many real-life associates had vouched for its accuracy and some had even sent resumes to the blogger; law professors had used it as fodder in their classrooms; and it had attracted the label of being a ‘cultural phenomenon.’ As readers tried to guess the identity of Anonymous Lawyer and wondered how such a person could take a ‘risk’ exposing their firm, it turned out that it was not much of a risk at all. Anonymous Lawyer was not a high-level executive, or even an entry-level graduate, but an enterprising third-year Harvard law student with an ambition to write. What started as an experiment that the student thought would only last a week, ended up lasting several months and cementing his decision to become a Hollywood screenwriter or legal novelist like Scott Turow. See Sarah Rimer, ‘Revealing the Soul of a Soulless Lawyer’, New York Times, 26 December 2004. Legal scholar and anthropologist Elizabeth Mertz has more generally discussed the ‘decontextualizing’ effects of American legal education, see Mertz, ‘Teaching Lawyers,’ supra note 31, at 99-102.

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Risking Ethics 163 __________________________________________________________________ Siècle. This seminal critical legal studies work is an inquiry into the political nature of adjudication in the U.S. It integrates Continental philosophy, psychology, legal theory, rhetoric, and experience into an intimate account of judicial decisionmaking. To be sure, constraint occupies an important place in Kennedy’s account of adjudication, but tellingly did not emerge in our class discussion. Regan instead began the discussion with disgust. She was upset to the point of claiming not to be able to finish the book because of its ‘pretension.’ She exclaimed, ‘Gag me!’ And went on to explain that when she entered law school she already knew about its ‘political’ side, but went in order to learn ‘strategies and fact patterns.’ In contrast, Tony interjected that he liked the way Kennedy presented ‘justice’ because he did not feel ‘beaten over the head by it.’ Mike was visibly torn, saying that he was not sure if Kennedy was ‘extremely radical’ or ‘comfortable.’ He went on to explain this odd pairing of terms as an effect of the book’s ‘conflation’ of two notions of law: the ‘instrumental,’ or technical manipulation of tools, and the ‘empirical,’ or what he described as ‘people outside the law.’ It is important to point out how what was previously seen as outside the law, as ‘empirical constraints’ were in our discussion of Reed’s book, here became internal to it. Mike went on to agree with Regan that most law students recognized the ‘instrumental’ as being political, but did not see the ‘empirical’ as being similarly so. He ultimately asserted that Kennedy had not so much conflated, as failed to present the ‘empirical’ side of law altogether. In his view, this would prevent law students from seeing what is political about law’s ‘social effects.’ Mike had once again recovered an outside to the law. Yet here it is not in terms of constraint, which was now internal, but in terms of ‘social effects.’ He had found the familiar critical ground, particularly for anthropologists, in arguing for a notion of society separate from the law that manifests its effects. In his view, however, law affected society and not vice versa as ‘law in society’ scholars would argue. Here is an instance of the ‘professionalism’ to which Nader refers appearing in a most tormented way. In fact, one kind of torment met another in this discussion. Mike’s critique of what law ignores – such as ‘gender’ and ‘social effects’ – met his attraction to its ‘practical’ instruments, as would come out more strongly later. Duncan Kennedy, an exemplary critical legal scholar, demonstrates a similar torment with regard to legal formalism. This torment was evident in both Regan’s and Mike’s strong reactions to the book. What is important to bring out in these respective reactions is what I think they miss in the book. To do so will suggest how constraint vanished from discussion while subtly becoming internal to law for Mike. Regan, who I would cast as an exemplary lawyer here, saw Kennedy’s treatment of the law as only being ‘political.’ Yet what I think she missed is how the models, fact patterns, and argumentative style that she went to law school in order

Finnish Yearbook of International Law (Vol. XV, 2004) 164 __________________________________________________________________ to learn are demonstrated in the book’s very structure. I read the book as an artifact of this formalist legal education, particularly the capacity to ‘argue both sides,’ which constitutes the book’s explicit skepticism toward the political nature of adjudication. Kennedy self-consciously imposed constraints, such as having no ‘truth pretensions’ or ‘ethical determinations’ in his ‘non-instrumental critique’ of judicial decisionmaking and legal education.48 This is what I think elicited Mike’s ambivalence about its ‘radical’ and ‘comfortable’ character. He could recognize a political critique, but did not see Kennedy as taking it far enough to demonstrate ‘social effects.’ Kennedy appeared to ‘comfortably’ fall back on the very formalist instruments that Mike saw him as critiquing. Yet what I think Mike, who I would cast as an exemplary legal critic here, misses is the rhetorical, political, and social creativity of these instruments. Kennedy neither conflates nor leaves out what he takes to be ‘empirical’ – it is instead left implicit as an effect of legal instruments. Mike implicitly picks this up in his revision of constraint as going from external to internal to law. Yet how could constraint not even appear for Regan while becoming ‘legal’ for Mike? The answer to both of these questions, I argue, lies in how legal professionalization constrains the self. Mike and Tony’s previous description is apposite here. They described it as a ‘separation’ from one’s self as raced, classed, or gendered. To achieve this separation is to no longer recognize constraint as selfimposed. This is why Regan did not recognize Kennedy’s self-imposed constraints, just as she did not recognize those of Reed. Similarly, the other law students were only drawn to non-self imposed constraints, such as time, in Reed’s book. Mike and Tony, however, could critique this process and be tormented by it as a testament to their not achieving its completion. This is why Mike could switch between seeing constraint as an external reality on the order of ‘gender’ to an internal effect on the order of society. Kennedy is also able to self-consciously impose constraints in his description of the highly constrained practice of judicial decision-making while offering a political critique of it. It is my argument that this incomplete, or underprofessionalized, ‘separation from self’ accounts for the characteristic torment of both the lawyer-in-training and critical legal scholar. Another way to state this shared torment would be an attention to ‘justice’ in the law.

Duncan Kennedy, A Critique of Adjudication: Fin de Siecle (Harvard University Press: Cambridge, MA, 1997) at 19-20 and 340.

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From Empirical Constraint to Term of Art and Back Again Mike and Tony would demonstrate this torment once again, but in reverse, just as Mike would perform another switch in what was internal and external to law. This torment, or ability to switch perspectives on the law, proved important for me as an ethnographer-in-training. It was what initially rendered my anthropological critiques of the law moot and then served as a constant reminder of the vacuity of giving into them, lest I repeat stereotypes. Through this refusal, I came to treat these reversals as a shared space of reflection on what is ethical between lawyers-in-training and ethnographers-in-training. Sexual orientation emerged as such a site of reversal in our discussion of Mariana Valverde’s Law’s Dream of a Common Knowledge. This work presents a Foucauldian-cum-Latourian analysis of legal knowledge across a range of Canadian case studies that include ‘indecency’ cases and judicial determinations of the ‘truth’ of sexuality. Through these case studies, Valverde argues that legal knowledge must be understood as a hybrid process of both scientific expertise and common sense, or what she terms ‘common knowledge.’ More particularly, it appeared that the book’s attention to the ‘truth effects’ of law allowed Mike to rethink his previous efforts to find an ‘empirical’ outside to it, such as ‘gender’ or ‘social effects.’ 49 As a result, Mike said that he was able to see sexual orientation as a ‘term of art’ in law. This did not only mean that it had a ‘specific, precise meaning50,’ such as heir or res ipsa loquitor, but that he could see law in a new way through the term. Mike described this view as an ‘interaction between law and social movements,’ or ‘switch’ that he said he had never seen through the ‘lens of law.’ This led him to wonder about the possibilities of sexual orientation as a ‘term of art’ for the gay marriage debate, which he described as stuck between ‘moral essentialism’ and ‘equality.’ Mike also began to visibly grapple with the implications of this ‘performative51’ view of sexual orientation for the temporal relation between cause and effect. For example, if effects were all that mattered in Valverde’s ‘dermatological52’ approach, could causality as a concept disappear? Regan pushed this inquiry further by grappling with what could replace causality. She enthusiastically queried about the implications for this absence of ‘fundamental

Mariana Valverde, Law’s Dream of a Common Knowledge (Princeton University Press: Princeton, NJ, 2003) at 10. 50 Black’s Law Dictionary (West Group: St. Paul, MN, 2001). 51 Valverde, Law’s Dream, supra note 49, at 94. 52 Ibid at 10. 49

Finnish Yearbook of International Law (Vol. XV, 2004) 166 __________________________________________________________________ truths.’ Mike and Regan continued to treat sexual orientation as a ‘term of art,’ not unlike the hypothetical, in how it performed reality. Tony soon interrupted this playful mood with a serious assertion. He said that there was a ‘Truth,’ which he underscored to be capitalized, that Valverde was both claiming and refusing. For him, this was her ‘identity’ as a ‘queer Canadian woman.’ In other words, what had been opened up as a ‘term of art’ became closed as a ‘Truth.’ This moment was not unlike Mike’s previous interruption of Tony and Regan’s discussion of the ‘creativity’ of law elicited by Dezalay and Garth’s book. There, Mike persuaded Tony that ‘ideas’ he initially saw as being able to ‘move the machinery of law’ – such as human rights – were actually tools of the elite in the service of preserving their own power. In other words, what were seen as ‘creative’ external ‘ideas’ became interested internal ‘tools’ of the law. Here I also recalled Mike’s critique of law’s insensitivity to ‘empirical constraints like gender’ during our discussion of Reed’s book. There constraint shifted from a source of internal creativity on the order of ‘time’ to a reality of external immutability on the order of ‘gender.’ Tony’s assertion of sexual orientation as ‘Truth’ rather than a ‘term of art’ made it into a similar ‘empirical constraint.’ In other words, Mike’s ‘term of art’ as an opening internal to law became Tony’s ‘Truth’ as a closure external to it. What is interesting about all of these see-sawing instances of torment between Mike and Tony is how creative openings tend to appear internal to law whereas oppressive closings are external to it. This too would seem to be an artifact of legal professionalization, which entails embracing legal instruments as creative of both terms of art and reality.

Torment and Naïveté as Shared Skepticism Yet what of lawyers-in-training like Mike and Tony and critical legal scholars who also see such instruments as oppressive toward self, society, and justice? These tormenting switches, or constant reversals in perspective on the law, appeared even more ‘legal’ than the most apparently non-critical legal practice. What I mean here by ‘legal’ is that they do not only ‘argue both sides’ of a given issue, but constantly ‘argue both sides’ of the law itself. This perspectival movement on the law is a kind of reflexivity.53 It attempts to take risks with legal instruments while also taking responsibility for their effects on self, society, and justice. To do both well is to be ethical, and therefore professional.

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Beck, Risk Society, supra note 17 and Beck, Giddens, and Lash, Reflexive Modernization, supra note 16.

Risking Ethics 167 __________________________________________________________________ Anthropologists have not only defined their own practice in terms of this reflexivity, but have also described other kinds of modern knowledge in terms of it. Human rights, for example, can be seen not as an entity, but a movement between activist tool and academic representation. 54 It is in such movement that human rights become ‘real.’55 Perhaps it can be said that law becomes the same for the lawyers-in-training and critical legal scholars that perform a similar movement. Yet here there is one crucial difference. Whereas with human rights the movement was largely between distinct groups of activists and academics, however much they may have overlapped, the movement here is internal to the discipline or person. In fact, it is internal to both insofar as maintaining a sense of self for lawyers-in-training and critical legal scholars is what provides enough distance from legal discipline to develop a critique of it. It was this space between affirming and critiquing legal instruments that appeared as ethical over the course of the seminar. As an ethnographer-in-training, I came to recognize this space through its movement. This did not offer gaps for analysis as legal subjects like indigenous rights claims have previously done for anthropologists, but instead elicited my own constraint.56 In other words, Mike and Tony’s see-sawing torment toward the law was my cue and constant reminder to maintain ethnographic naïveté. This had to be cultivated, even disciplined, as a constraint that prevented ethical judgment of the law students. It is here that I wish to draw attention to my own constraint in the account thus far. The extent to which my frustration has been absent is the extent to which the constraint has been successful. Maintaining this constraint was its own kind of torment, to be sure, particularly when the law students ran roughshod over basic anthropological insights about sociality, gender, and sexuality, or directly challenged the existence of constraint in anthropological practice altogether. I was pained, for example, when Regan quickly dismissed the suggestion of constraint in Adam Reed’s description of the prisoners he studied, just as I felt disbelief when constraint went unnoticed in Duncan Kennedy’s account of adjudication. Yet just as many of the law students did not see the constraints of those we read, they also did not see mine. To this extent, I have disappeared from the account as perhaps a well professionalized lawyer would. This disappearance has enabled me to risk my own ethics so that I could describe and appreciate the ethical torment of Annelise Riles, ‘The Virtual Sociality of Rights: The Case of “Women’s Rights are Human Rights,”’ in Michael Likosky (ed.), Transnational Legal Processes: Globalisation and Power Disparities (Cambridge University Press, 2002) 420-439. 55 Ibid at 435. 56 This constraint appears as ‘epistemological boundaries’ in Riles, ‘Property as Legal Knowledge,’ supra note 22, at 789, and Marilyn Strathern, ‘Social Property: An Interdisciplinary Experiment,’ 27 Political and Legal Anthropology Review (2004) 23-51, at 37.

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Finnish Yearbook of International Law (Vol. XV, 2004) 168 __________________________________________________________________ the lawyers-in-training and critical legal scholars whose company I shared. At the time, I naïvely thought that they would see this ethnographic risk as similar to their own torment. After all, both produced an ethical agnosticism – even skepticism. This would have been a productive, even fitting, common ground for us to find. Particularly so against the backdrop of the stereotypes that we could indulge in and the ethical challenge that we could be seen as sharing. Both lawyers and anthropologists, for example, often call upon themselves or are called upon by others to take responsibility for unknown and unintended effects.57 From here I wondered how we could both go about taking a risk, which was the query that began this paper.

Torment and Naïveté as Shared Frustration That this is not what happened most likely strikes the reader as unsurprising. The failure of a well-intentioned, yet naïve ethnographer-in-training is after all what I have come see lawyers-in-training and critical legal scholars as expecting. Yet if the outcome is obvious, are its reasons? As an ethnographer-in-training, I have grappled with this. Distance from the descriptions of frustration that follow has allowed me to reflect on these reasons. Most have already been mentioned, but I will next attempt to connect them to the mutual frustration that I saw over the course of the semester. It was this shared frustration, as I have since come to see, that ultimately prevented us from sharing ethical skepticism. At the time of the seminar, my greatest frustration with the law students was not that they were insensitive to basic anthropological insights or cultural differences, but that they often only saw themselves as students rather than practitioners. What I mean by this seemingly out-of-place observation is that the law students rarely treated law as something other than what they were learning. This gave their responses a detached and bookish quality in comparison to the engaged and personal anecdotes that ethnographers-in-training often provide. For example, after giving a brief anecdote of my experiences with the importance of anticipation among activists, I queried about its place in law. Expecting to hear an anecdote, I was disappointed to instead receive Christina’s general assertion that anticipation is important to the judiciary in producing law. Jason, the other anthropology student,

Fortun, Advocacy After Bhopal, supra note 15; Greenhouse, ‘Introduction,’ supra note 14; Kennedy, The Dark Sides, supra note 26; Koskenniemi, From Apology to Utopia, supra note 26; Trubek and Galanter, ‘Scholars in Self-Estrangement,’ supra note 26.

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Risking Ethics 169 __________________________________________________________________ and I would often marvel at this ‘impersonal’ engagement and joke about ways to elicit more impassioned responses. I have since come to appreciate that this frustration said more about my own expectations than anything the law students may have done. Contrary to my original judgment that ‘impersonal’ statements reflected a less engaged relationship with law, I have since come to see this as a more complete effect of legal professionalization. As a result, I would recast Christina’s statement about judicial anticipation as a subtle illustration of legal constraints, or how law school ‘separates’ one from the self. The impersonalness that Jason and I frequently noted is an achievement of this professionalization. Just as importantly, it was an achievement of our own anthropological professionalization. The ‘personal’ responses that we sought, and implicitly saw as being more engaged, was about trying to make a more familiar self appear among the law students. This kind of self was also deemed to be more capable of taking risks, which is what we were also implicitly judging the law students as incapable or unwilling to do in the seminar. For ethnographers-in-training, taking risks is a central part of professionalization. It has not only constituted the post-Malinowskian popular image of the adventurous ethnographer going off to exotic places, but formed a key trope for how anthropologists have internally approached fieldwork. To take risks – typically of the personal variety – is to achieve intimate knowledge of others. This implicitly posits a self that the ethnographer must separate from over a prolonged period of time in order to learn about others. To do so is to take a risk, whether for self-knowledge or shared knowledge. It was this view of the self and its importance to risk-taking that I retrospectively came to see as the source of my frustration with the law students. I was judging their apparent lack of risk-taking based on an absence of self. In fact, I only came to see the self in this form when some of the law students decided to ostensibly attack the merits of anthropological practice. This occurred toward the end of the seminar when Mike and Tony’s frustration with Jason and I had become more evident. Our refusal to assume expected anthropological positions and to be an ally during their more pointed critiques of the law was proving to be a source of hostility. This hostility reached a crescendo during class discussion of papers from the aforementioned ‘Anthropology of Human Rights Administrations: Expert Observation and Representation After the Fact’ conference. Mike and Evelyn, a law student who rarely spoke, began discussion with a prepared presentation. They both emphasized how much they not only did not like, but took offense at one of the paper’s representations of lawyers. This paper retraces the famous case of Fauziya Kasinga, the woman who claimed U.S. refugee status by refusing to submit to the alleged female genital cutting practices of the

Finnish Yearbook of International Law (Vol. XV, 2004) 170 __________________________________________________________________ Tchamba of Togo. The paper argues through ethnographic interviews with lawyers, journalists, and involved relatives that Kasinga as a ‘human rights victim’ is only a product of the extensive legal resources that are brought to bear for and against her. What ensued around this paper was the most impassioned and sustained response of the semester. Mike described the paper as ‘insensitive;’ Kelly queried how it could be so ‘naïve;’ Regan questioned its presentation of the facts, and Tony wondered if it wasn’t ‘sloppy ethnography.’ Yet Evelyn pushed this critique the furthest when she recalled her own asylum case internship. She started by saying that she could see the author’s perspective as a ‘non lawyer,’ but that she found it to be ‘offensive’ in light of her own experience. Evelyn proceeded to recount the difficulty of her own circumstances, particularly in terms of time constraints. She recalled having to come up with a new legal category – ‘effeminate homosexual transvestite’ – for a client in a just a few minutes so that he could avoid deportation. This anecdote not only reasserted the importance of time as an external constraint to legal practice, but made the self much more present among the law students. The chorus of critiques was not just on the order of argument or fact, but personal accusations on the order of ‘insensitivity’ and ‘offense’ to lawyers. There was an evident sense of banding together to defend one of their own that made it clear the battle lines had been drawn. These lines took the literal form of a table that Evelyn and Mike had begun class discussion with: Anthropology Legal Subjects Law E.g., Female Goals Reconceptualizing? Getting things done genital mutilation Means ? Reconceptualizing? (FGM), Big Picture ? Changing the world Discrimination, Truth and Reconciliation Commissions (TRC) Before addressing the more overarching challenge that it posed to the anthropologists in the room, it is worth pointing out a couple things about the table itself. What it made clear was that ‘legal subjects,’ not ethics or constraint, was what the law students saw us as sharing. It was what connected us on the table. 58 Their What also connected us was the idea of ‘reconceptualizing,’ which was the ‘means’ and ‘goal’ of law and anthropology, respectively. The place of this means-goal, or means-ends framework in legal knowledge has been taken up extensively by Annelise Riles in, ‘Property as Legal Knowledge,’ supra note 22.

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Risking Ethics 171 __________________________________________________________________ asserted notion of a ‘legal subject’ was more on the order of Brown’s indigenous rights claims than Kennedy’s judicial decision-making. The former provided gaps for anthropological analysis whereas the latter elicited constraints. At this point, it was clear that the law students saw gaps, not constraints, as the province of anthropological work. What the table also made visible was a professed lack of knowledge about anthropology. Mike, Evelyn, Tony, and Regan all wanted answers to begin to fill in the blank spaces. They proceeded to ask probing questions about culture, aesthetics, and ethnography. For example, ‘when is enough ethnography enough?’ And what is the definition of ‘useful?’ In the absence of obvious time constraints, ‘getting the win,’ or working for a client, the law students remained unsure and/or unconvinced that anthropologists knew the constraints of their pursuit. They proceeded to spell out their own notions of constraint, which were tied closely to the pragmatic sense of ‘getting things done’ and ‘ethics.’ Despite Tony’s previous exasperation with ‘the machinery of law’ and Mike’s disillusionment with its ‘instrumental’ character, they both got behind this pragmatic banner. When Mike asked the other law students if they thought about the long-term effects of a case, Regan restated this as an inquiry into ‘ethics.’ Tony responded that judges and lawyers are aware of this ‘subtext,’ but that they are ‘working under constraints.’ Christina added that non-lawyers ‘overestimate’ the power of lawyers, whose ‘biggest goal is to win the case for their client.’ She explained that this goal is ‘forced at the risk of malpractice.’ What became clear was how closely tied ethics were to the pragmatic imperative of ‘getting things done,’ which was in turn contingent on having constraints. For lawyers-in-training, it appeared that one had to work under constraints in order to get things done, which would then be considered ‘ethical.’ Advocating for one’s ‘client’ was often brought up as such a constraint. This was self-consciously advocating for another person, which required personal constraint and assuming the responsibility for any outcome. To do so, required ‘separating’ from one’s self as raced, classed, or gendered such that one could act impersonally. Mike and Tony’s previous critique of the oppressiveness of this constraint was now an affirmed ethics. Yet this constrained sense of self influenced what the law students were willing to recognize as constraint at all. It had to be sufficiently ‘impersonal,’ such as time, in order to be seen as such. My argument is that this is why they were never convinced that anthropologists, nor this particular ethnographer-in-training, had any constraints. These were self-imposed, just as Reed’s and Kennedy’s were, and so not impersonal enough to register as constraint. The judgment seemed to be that if the only one that was forcing a decision was one’s self – not time, procedural demands, or one’s client – then that decision was not constrained, and so did not appear pragmatic or ethical. In this way, Evelyn asked me if anthropologists ‘still believe in

Finnish Yearbook of International Law (Vol. XV, 2004) 172 __________________________________________________________________ objectivity’ and Mike characterized ethnography as ‘intellectual delight and spiritual self-discovery.’ This offensive against anthropology made clear how my own constraint was contributing to frustration among the law students. The more I refused expected anthropological positions and explicit ethical judgments, the more they were convinced that anthropologists had no sense of ethics or constraint at all. So just as I was judging them in terms of risk-taking, they appeared to be judging me in terms of constraint. That they did not see my self-imposed constraint is once again a testament to their own professionalized constraining of self. It appeared less as a shared sense of ethical skepticism and instead became a source of frustration that ultimately elicited a less skeptical ethical position from, most noticeably, Mike and Tony. The legal instruments that they had previously critiqued on ethical grounds were now firmly supported in opposition to another perceived ethical threat – the skeptical ethnographer-in-training. Anthropology itself had remained an unknown and external presence to the law students. The blank spaces of the table and probing questions were a testament to this effort. I have since come to see this collective effort as its own cultivated naïveté – one that allowed anthropology to be the ultimate outside to law, against which lawyers-in-training could commonly affirm their own sense of ethics. In the terms of Mike and Tony’s previous see-sawing torment, anthropology was functioning as an external closing that enabled them to open up law’s internal ‘creativity’. Mike, in fact, later confided in me that he had exaggerated his reaction to the conference paper and anthropology more generally in order to get a rise out of Jason and me. That we did not respond in a similarly ‘adversarial’ way was apparently disappointing to him. I have since come to see that this apparent lack of response was, however, an adversary. We were engaged in adversarial naïvetés. My own ethnographic type was a cultivated refusal of ethical judgment and evident frustration toward the law students. Lawyers-in-training not only failed to recognize it as a constraint, but as ethical altogether because it was self-imposed. This facilitated the naïveté of the law students, and Mike and Tony in particular, toward anthropology. It became an amorphous outside against which to clearly see their legal ‘ethics’ and ‘creativity’. In this way, Mike and Tony replaced their internal ethical skepticism toward the law with a purer affirmation of it. Skepticism therefore vanished as a potential shared ethical space along with my initial aspiration of figuring out how to collectively take a risk. What instead became clear are the challenges and misunderstandings that followed from my ethnographic risking of ethics.

Risking Ethics 173 __________________________________________________________________

Risking Ethics This ethnography-in-training has entailed a refusal to compare lawyers and anthropologists along now stereotypical lines. The well-noted absence of self in legal practice and perhaps overdeveloped sense of self in anthropological research invites ‘normative’ and ‘self-reflexive’ labels, respectively. This has not been my interest. It has instead been my constraint in wrestling with the difficulty of finding an effective anthropological response to legal knowledge practices. As an ethnographer-intraining, this has taken the form of an inquiry into the training of lawyers. This inquiry was not conducted in legal classrooms, or even for the most part in a law school, but in interdisciplinary spaces like seminars and conferences. These spaces quickly put law and anthropology into dialogue with one another to reveal assumptions, aspirations, and misunderstandings. I have attempted to capture some of the mutual challenges that lie therein. My early frustration with Tony regarding just what constituted a detail and class discussion about legal hypotheticals pointed up often disguised ‘formalist’ and ‘realist’ differences between lawyers and their critics. That lawyers self-consciously create reality while their critics often see themselves as representing it indicated the limits of what critique could do to the law. More importantly, it soon became clear that I was not the only one, nor the most able one, to do so. Lawyers-in-training and critical legal scholars were already providing sophisticated critiques of legal practice that would make many anthropologists envious. As an ethnographer-in-training, I instead learned to take cues from these critiques. Mike and Tony’s tormented relationships to the law became most visible when they critiqued it for its ‘insensitivity to empirical constraints’ or ‘separation from the self.’ These critiques served as constant reminders of the vacuity of giving into facile stereotypes. More importantly, though, they contained changing perspectives on the law itself. At one moment, a lawyer-in-training could take a risk with the ‘creativity’ of legal instruments and in the next demand taking responsibility for their ‘social effects.’ This constituted an ethical space of reflection that I saw myself, as an ethnographer-in-training, sharing. Its evident torment was not unlike my cultivated naïveté in that both produced a sense of ethical skepticism. There seemed to be tremendous promise in this shared space of non-existent, or at least deferred ethical judgment. Yet it was my own cultivated naïveté that ultimately worked against this aspiration for a shared ethical skepticism. My refusal to ethically judge or engage in stereotypes was a risk. For an ethnographer-in-training, to do so is to exercise constraint of one’s self, and in accordance with my own professionalization, to be ethical. Yet the lawyers-in-training not only did not recognize this as a constraint, but did not recognize it as ethical at all. Their own professionalization is a

Finnish Yearbook of International Law (Vol. XV, 2004) 174 __________________________________________________________________ ‘separation from the self’ that is meant to constrain otherwise – in terms of procedure, time, or one’s client. For a lawyer-in-training, to do so is to avoid risks such as malpractice, and to be ethical. In this way, the separation from self that for the lawyer-in-training is meant to avoid risk, is for the ethnographer-in-training precisely what constitutes it. What I have attempted to demonstrate, however, is that what I previously recognized as ethical skepticism among lawyers-in-training and critical legal scholars was an unconstraining, or underprofessionalization of the self. Preserving a sense of self was what enabled critique of the law for both. I attempted to share this ethical skepticism by constraining my self. This constraint was my way of cultivating naïveté, or not ethically judging legal practice. In so doing, I was also risking my own sense of ethics. The lawyers-in-training, and Mike and Tony in particular, responded with their own kind of cultivated naïveté. Their refusal to understand anthropology preserved it as an unconstrained and unethical outside against which they could see the constraint and ethics of law. Their naïveté was not about risking ethics, in other words, but about affirming a purer legal version of it. This was how my naïve aspiration of a shared space of ethical skepticism evaporated. The lesson to emerge from this account is not the futility of ethical skepticism, however. I would argue that it is instead the futility of a certain kind of ethics defined only in terms of right and wrong or good and bad. What this self-conscious risk for shared knowledge has demonstrated is the ability for this definition of ethics to undermine itself due to differing disciplinary conceptions of self, risk and responsibility-taking. My naïve proposal would therefore be to think of the interdisciplinary space of ethics as a sharing of disciplinary selves, risk and responsibility-taking.

Articles

Secure State, Insecure People: Turkey’s Freedom of Expression Problem Meltem Aslan*

‘Paranoia is the logical endpoint of obsession with security’ Barry Buzan People, States and Fear

Three Short Stories Ayse Nur Zarakolu – Freedom to Publish As the founder of Belge Publishing, whose mission is to publish books that challenge Turkey’s political taboos, Ayse Nur Zarakolu has published books by Armenian, Greek and Kurdish authors as well as books about communism. She has been prosecuted over twenty times and imprisoned for a number of years. The first time she was imprisoned was in 1982 for four months, right after the military intervention of 1980. She was tried by the Martial Law Court for having published Mete Tuncay’s New Information on the Old Left, a book about the leftist movements at the turn of the century in Turkey. Throughout the 1980s and 1990s, she was imprisoned three more times, for a total of 15 months, her life was repeatedly threatened, she was fined, her books were banned, her publishing company was firebombed and her passport was confiscated. In 1998, the World Publishers Association awarded Ayse Nur Zarakolu the Freedom to Publish Award. She could not be there to receive the award because she was still awaiting her passport for which she had applied in 1993. Her passport was eventually issued only in response to intense pressure from the public, but not on time for the award ceremony.1

* TESEV (Turkish Economic and Social Studies Foundation). This article is an amended version of my Master’s thesis for the European Masters in Human Rights and Democratization (EMA) program. I would like to thank Päivi Leino for her comments during the finalization of the article; Dicle

Finnish Yearbook of International Law (Vol. XV, 2004) 178 __________________________________________________________________

Yashar Kemal – Freedom of Thought in Turkey In 1995, Turkey’s most renowned living writer, the novelist Yashar Kemal, was tried for ‘separatist propaganda’ by the Istanbul State Security Court for an article he had written for the German magazine Der Spiegel. In the article titled Campaign of Lies Kemal described the Turkish state’s war of ‘incredible massacres and torture’ against Kurds. He was acquitted. In protest against his prosecution, 1,080 intellectuals, writers, publishers and artists, representing a major section of Turkey’s literary and artistic elite, put their names to a book entitled, Freedom of Thought in Turkey, a collection of articles by people imprisoned or on trial for their writings. In a response almost farcical in its absurdity the government responded by charging 185 members of the group with ‘separatist propaganda’. Yashar Kemal himself was given a 20-month suspended sentence for an essay entitled Dark Cloud Over Turkey, his contribution to Freedom of Thought in Turkey.2 The conviction was for ‘inciting hatred’ under Article 312 of the Penal Code.

Noam Chomsky – No discrimination as to nationality… In January 2002, scarcely two months after the passing of constitutional amendments aimed toward easing the restrictions on freedom of expression, Fatih Tas, the Turkish publisher of the American linguist Professor Noam Chomsky was charged with ‘separatist propaganda’ under the Anti-Terror Law. Mr. Tas faced the possibility of one year in prison for having printed American Interventionism, a collection of Mr. Chomsky’s essays including harsh criticism of Turkey’s treatment of its Kurdish minority.3 At the trial, which Chomsky himself attended, under public and international scrutiny, Mr.Tas was found not guilty by the State Security Court. Mr. Tas said that his not guilty verdict was thanks to Chomsky’s presence and the international interest surrounding the case. There were six further cases then pending against him and he was certain that he would be found guilty. Meanwhile, Professor Chomsky travelled to Diyarbakir where he publicly argued for a Kurdish state in south-eastern Kogacioglu for her comments on an earlier draft; and finally Fernando Casado for various inspiring discussions and continuous support and encouragement. 1 All the information is from the translation of the book that was published by the German Publishers & Booksellers Association in honour of the event to award Ayse Nur Zarakolu the Freedom to Publish Award in 1998. Ayse Nur Zarakolu: Yazma ve Yayinlama Ozgurlugu Icin (Ayse Nur Zarakolu: For the Freedom to Write and Publish), (Belge Publishing: Istanbul, 2002). 2 Amnesty International Report, No Security Without Human Rights, 1996. <www. amnesty.org/ailib/ intcam/turkey/turkfoc.htm>, last visited June 2004. 3 Eddie J. Girdner, ‘Chomsky on Trial in Turkey’, in ZNet Foreign Policy Watch, 17 February 2002. <www.zmag.org/content/ForeignPolicy/GirdnerChomTurk.cfm>, last visited June 2004.

Secure State, Insecure People 179 __________________________________________________________________ Turkey, expressing his wish for ‘an autonomous Kurdistan, which would bring the Kurds in the region together’.4 Following his departure, the state security courts began an inquiry against him. Police recordings were analyzed and Chomsky was being accused of inciting separatism during his trip to Diyarbakir. Finally, no charges were brought against him. Court cases prosecuting journalists for articles they have written and publishers for books they have published; the confiscation of books, journals, and newspapers; the banning of television channels and suspension of their licences; the closure of human rights organizations… The ways to restrict freedom of expression in Turkey have been many. The ground for restrictions has often been the one and the same: national security. In this article, I study the tensions between the way national security is conceptualized and the exercise of freedom of expression5 in the context of Turkey. I analyze the long and systematic process through which the particular formulation of national security became deeply entrenched in the legal system. Studying this process can be highly revealing in terms of illustrating how the way national security is conceptualized can be a major impediment to freedom of expression. Through an in-depth analysis of the dynamics at force in the contemporary Turkish legal and political framework, I attempt to show the changes taking place both at the legal level as well as in practice. The underlying question throughout the analysis of recent reforms is to what extent changing the legislation can reverse decades-old state practices. Although absolutely essential, is legislative reform by itself enough to tip the balance between national security and freedom of expression toward the latter?

Concept of National Security National security is arguably the most widely shared and compelling public interest that any government can invoke as the rationale for its actions. In international law, it is legitimately accepted to restrict even the most fundamental freedoms for the protection of national security.6 However, the operative meaning of national 4 International Association for Human Rights of the Kurds, No: 147, 15-22 February 2002. <www.kurdistan.nu/english/imk_22feb_02.htm>, last visited June 2004. 5 Freedom of association and freedom of assembly are also discussed as they are closely related to and can be viewed as special manifestations of the general freedom of expression. 6 Both in the International Covenant on Civil and Political Rights (ICCPR) and in regional instruments such as the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) fundamental rights such as the right to freedom of thought, conscience and religion (Article 18 of the ICCPR and Article 9 of the ECHR) and the right to freedom of expression (Article 19 of the

Finnish Yearbook of International Law (Vol. XV, 2004) 180 __________________________________________________________________ security varies significantly depending on the context and the particular state in question. The concept of national security is highly contested. For Buzan, ‘the nature of security defies pursuit of an agreed definition’. 7 National security is doubly complex because it is a compound of two multifaceted ideas: security and nation.8 David Baldwin and Helen Milner have characterized the concept of national security as ‘one of the most ambiguous and value-laden terms in social science’.9 Given this complexity, rather than a quest for a specific definition of the term, exploring the various approaches to the concept in an attempt to demonstrate the wide-ranging meanings it can have in different times and different contexts seems like a more fruitful endeavour. It is my contention that the impact on human rights of particular policy choices designed to achieve security can only be evaluated through an understanding of the meaning attached to the concept of national security in a particular context. The term national security as it is understood today gained wide acceptance during the Cold War. Up until then, national defence, a much narrower concept, was the commonly used term within the context of military strategy. During the Cold War period, many states, led by the United States of America, began to develop a national security policy and carried out constitutional and legislative changes in line with those policies. Following the end of the Second World War, there was a trend toward using the term national security to express a more activist policy calling for an assertion of American interests and responsibilities that was global in its breadth. 10 This development meant a much broader definition, encompassing all the precautions to protect state order and national interests. Yergin in Shattered Peace describes the key elements in the new concept of national security: An adverse turn of events anywhere endangers the United States. Problems in foreign relations are viewed as urgent and immediate threats. Thus, desirable foreign policy goals are translated into issues of national survival, and the range ICCPR and Article 10 of the ECHR) among others can be restricted for the protection of national security. 7 Barry Buzan, People, States and Fear: An Agenda for International Security Studies in the Post Cold-War Era (Harvester Wheatsheaf: London, 1991) at 32. 8 The word ‘nation’ can be used to refer to both a cultural, ethnic, etc. group of people within a state or the state itself. Without getting into further intricacies of the two concepts, which not only is beyond the scope of the study, but also has been done by others elsewhere, for the purposes of this analysis, I will use the terms nation and state interchangeably. 9 David A. Baldwin and Helen V. Milner, ‘Economics and National Security’, in Henry Bienen (ed.), Power, Economics and Security (Westview Press: Boulder, CO, 1992) 29. 10 Laurence Lustgarten, Ian Leigh, In From the Cold: National Security and Parliamentary Democracy (Clarendon Press: Oxford, 1994) at 24.

Secure State, Insecure People 181 __________________________________________________________________ of threats becomes limitless. The doctrine is characterized by expansiveness, a tendency to push the subjective boundaries of security outward to more and more areas, to encompass more and more geography and more and more problems.11

This historical review provides an illuminating illustration of how the same thinking dominates present-day policy debates after more than half a century, albeit for different security concerns. That, indeed, is precisely the point: with the switch from national defence to national security, threats are no longer confined to serious and specific dangers to finite and fundamental values but can be imagined or constructed by the governing authorities and vary by time and context depending on the national or foreign policy goals of states. Regardless of the breadth of definition, much of the debate on national security centres on two critical questions. First, who or what should be the focus of our interest in national security, in other words: what is to be secured? Should it be states, groups based on nationality or gender, or individuals? Second, who or what threatens security? Is it states and the policies of decision makers? Are the threats external or internal? The answers to these questions largely determine the conceptualization of national security and provide a foundation for understanding policy choices. In realist conceptions of security, as expressed by Buzan and others, the clear referent point, (i.e. the object to be secured), is the state. What is meant by security in the realist conception is the state’s capability to protect its territorial boundaries and its sovereign ability to act in line with its interests. In Buzan’s conception of national security, the major tension is how to enhance liberty for the community as a whole without increasing oppression by authority and jeopardizing individual security.12 According to Buzan, tension between individual and state security is permanent and inescapable. Therefore in the realist conception of national security, it seems that security can only be achieved at the expense of liberty. Some, such as Waltz, go as far as constructing the security-liberty equation as a zero-sum game: ‘States, like people, are insecure in proportion to the extent of their freedom. If freedom is wanted, insecurity must be accepted.’13 As far as the second question concerning who or what threatens security, in the realist conception, the major threat is military conflict between states. However, individuals can also be threatened by their own state in a variety of ways. In fact, for majority of the world’s people, threats from the state are among the major sources of insecurity in their lives. This is the second major paradox in the realist D. Yergin, Shattered Peace (Harmondsworth, 1980) at 196. Buzan, People, States and Fear, supra note 7, at 37. 13 Kenneth N. Waltz, Theory of International Politics (Addison-Wesley: Reading, Mass., 1979) at 112. 11

12

Finnish Yearbook of International Law (Vol. XV, 2004) 182 __________________________________________________________________ conception of national security: Although the state is the mechanism through which people seek to achieve security against social threats, as the power of a state grows, it also becomes a potential source of threat. 14 The long domination of realist theory in both international relations and the sub-field of security studies has created a false assumption that national security and individual freedoms are inevitably inherently conflicting values. Once the referent point is shifted away from the state, however, a different view emerges. Some analysts have argued that the focus should be the security of individuals and have posed different questions and taken into account threats such as starvation, disease, disablement and ‘all sorts of other hazards – from bankruptcy to unemployment’. 15 Shifting the referent to the individual leads to a completely different perspective in which human rights and national security do not have to be at odds. The pursuit of these and other individual security goals may also entail contradictions but not by setting the security of the state (as an institution or a regime) in opposition to fundamental human rights and freedoms. Lustgarten and Leigh contend that the often-assumed polarity between human rights and national security is a false one. Using the metaphor of balance, they argue that if actions taken in the name of national security repress human rights, they cannot be justified merely by ‘weighing’ the needs of national security against the loss of individual liberty. The loss of liberty must be counted on both sides of the scale and thus deducted from any asserted gain in national security, as well as recognized as a loss to the individuals or groups specifically affected.16 In a similar vein, Ken Booth takes the interdependency between security and freedom further: he argues ‘emancipation is the freeing of people (as individuals and groups) from the physical and human constraints which stop them carrying out what they would freely choose to do… Emancipation, not power and order, produces true security. Emancipation, theoretically, is security.’17 Buzan characterizes security as an underdeveloped concept in international relations, with little conceptual literature, in comparison with other widely used academic concepts such as power or peace, and not a coherent school of thought. 18 Among the multiple explanations19 he offers for this ‘persistent underdevelopment of thinking about security’, one is particularly striking especially in the context of a post-September 11th world. He contends that Buzan, People, States and Fear, supra note 7, at 364. Terry Terriff, et al, Security Studies Today (Polity Press: Cambridge, 1999) at 19. 16 Lustgarten and Leigh, In From the Cold, supra note 10, at 9. 17 Ken Booth, ‘Security and Emancipation’, 17 Review of International Studies (4/1991) 324. 18 He acknowledges that a large and flourishing body of work exists on the empirical side dealing with contemporary national security problems and issues, but a matching conceptual literature was lacking for a long time and still what exists is rather unbalanced as far as theoretical writing goes. 19 For an extended discussion of the reasons, see Buzan, People, States and Fear, supra note 7, at 3-12. 14 15

Secure State, Insecure People 183 __________________________________________________________________ for the practitioners of state policy, compelling reasons exist for maintaining its symbolic ambiguity: The appeal to national security as a justification for actions and policies, which would otherwise have to be explained, is a political tool of immense convenience for a large variety of sectional interests in all types of states. Because of the leverage over domestic affairs, which can be obtained by invoking it, an undefined notion of national security offers scope for power-maximizing strategies to political and military elites.20

This phenomenon, which we are witnessing in the current world affairs postSeptember 11th,21 has profound implications on human rights, especially on freedom of expression many of which will be explored in this article in the context of Turkey. As it is generally accepted that freedom of expression may legitimately be restricted for protecting national security, the more ambiguously and broadly the term is defined, the wider the range of threats from which the state needs to be secured and hence the more reasons for restricting freedom of expression. Accompanying a broad and vague definition of the term national security is usually, as in the case of Turkey, a legal system aimed at protecting the security of the state as one of its core elements. In this construction, the exercise of freedom of expression sits directly at odds with protection of national security. The state deems dissident opinions and non-violent critics of official policies as threats to its interests and justifies using repressive measures in the name of national security, thus seriously undermining the essence of the right to freedom of expression. Before turning into the discussion of how the exercise of freedom of expression has been restricted in practice and the question of whether the recent legislative reforms have been effective in shifting the balance between protecting national security and freedom of expression, in the next section I will briefly discuss how the concept of national security has been defined in Turkey.

National Security in the Context of Turkey Turkish law related to the National Security Council defines national security as ‘protection of the constitutional system of the state, its existence and unity; its Buzan, People, States and Fear, supra note 7, at 10. It can be argued that the same occurred in the Cold War period when many interests in the United States and the Soviet Union benefited from exaggerating the level of threat which each posed to the other. In that sense, cultivating hostile images abroad to justify political surveillance, a shift of resources to the military, and other similar policies are not new to the post-September 11th era, perhaps only intensified. 20 21

Finnish Yearbook of International Law (Vol. XV, 2004) 184 __________________________________________________________________ political, social, cultural and economic interests in the international arena; and rights obtained under the international conventions against all kinds of internal and external threats’.22 In its publication The Concept and the Extent of the State, the General Secretariat of the National Security Council states, ‘The concept of national security permeates the whole state organization and is equivalent to the existence of a nation and state. As such it is a determining factor in the lives of the state, nation and the individuals.’23 Such a definition implies that every individual and every institution should be bound by this concept and act accordingly. Through this allencompassing statement of the national security ideology, the meaning of the term national security is expanded from a solely military or defence concept into one that defines all aspects of social and political life as integral parts of national policy. To understand the basis of the breadth of this definition, it is beneficial to engage in a brief inquiry into the essence of the state to which the idea of security applies. In his model defining what constitutes a state, Buzan argues that the centrality of a binding idea is particularly important. In a sense, the state is more an idea held in common by a group of people, than it is a physical organism.24 The threat is usually not to the physical population or territory but to this idea. In the conception of the ‘idea’ of the Turkish state, the unity of the nation has always played a central role as the main object of national security. Taner Akcam, in his discussion of the formation of the Turkish national identity, traces back this strong influence of the concept of unity to the Ottoman era. He maintains that as the minorities began to separate from the Empire with the support of imperialist powers, the Empire perceived this as a major betrayal. Each attempt to break away by a minority group was a step toward eradicating the empire and the struggle against national minorities was constructed as a struggle for survival against enemies that were surrounding the empire and wanted to destroy it.25 This later influenced the formation of the Turkish national identity, which according to Akcam was ‘formed within this constant existence/disappearance state of mind’. Especially during the last part of the 18th century and the beginning of the 19th century, Ottoman history is one of dissolution and the breaking apart of

My translation. Saban Iba, Milli Guvenlik Devleti (National Security State), (Civiyazilari: Istanbul, 1999) at 102. Emphasis added. My translation. 24 Buzan, People, States and Fear, supra note 7, at 63. 25 For an illuminating discussion on the formation of the Turkish national identity and its relation to human rights, see Taner Akcam, Turkiye’yi Yeniden Dusunmek (Rethinking Turkey) (Birikim Yayinlari: Istanbul, 1995) at 194-200. 22 23

Secure State, Insecure People 185 __________________________________________________________________ empire, accompanied by the loss of territory and human life.26 Despite the efforts of Ataturk, the founder of the Republic, to severe all ties with the Ottoman Empire and ‘start a nation from scratch’,27 erasing 600 years of history and national consciousness is no easy task. Inevitably, the Turkish national identity has as its foundations the fear of conspiracy against the state by non-Turk ethnic or religious minorities encouraged by foreign powers. To counter these threats, the cornerstone of the Republic was the formation of a ‘Nation of Turks’. Nationalism was one of the basic principles of Ataturk, and it was carried to an extreme as the prime instrument in building a new national identity. The ‘unitary nation’ concept was at the heart of the Republic, immediately placing any desire by any ethnic group for recognition within the paranoia of ‘an attack on the indivisible integrity of the nation with its territory’. The second building block of this concept of unitary nation alongside nationalism was secularism. The problem here is that this secularism did not come about as a result of an enlightenment of society; on the contrary, during the process of Westernization, it was imposed on society by the state as a preferred ideology. As such, it has always existed in conflict with the religious and cultural values of the people. Furthermore, it was interpreted not only as a separation of state and religion, but also as the removal of religion from public life and the establishment of complete state control over remaining religious institutions. 28 The result was organized Sunni Islam as the state religion at the expense of exclusion and contempt of all other religious groups as a state policy.29 So, the Turkish Republic is made up of ‘Sunni Turks’ and anything that is perceived as a threat to that identity is a threat to the unitary and secular nation, hence to the core of the state and its security. As can be seen from this very brief analysis of a very complex phenomenon, what is ‘national security’ and what the threats to that security are largely a result of the conception of the Turkish national identity. Security of the state is very closely interlinked with the unity of the nation and the ‘indivisible integrity of its territory with its nation’. The threats to security in this conception, then, are anything that in

Between 1870 and 1920, the Ottoman Empire lost 85% of the territory that it owned or controlled and 75% of the population. See Akcam, Turkiye’yi Yeniden Dusunmek (Rethinking Turkey), supra note 25, at 24. 27 The reforms undertaken in Mustafa Kemal Ataturk’s leadership in the era following the establishment of the Turkish Republic in 1923 aimed at a complete overhaul of the economic, political, administrative, legal and social domains, from language to education to way of dressing. The goal was to erase the remnants of the Ottoman Empire and create a new ‘Westernized’ Turkish Republic. 28 Erik J. Zurcher, Turkey: A Modern History, (I.B. Tauris & Co Ltd. Publishers: London-New York, 1997) at 189. 29 Akcam, Turkiye’yi Yeniden Dusunmek (Rethinking Turkey), supra note 25, at 61. 26

Finnish Yearbook of International Law (Vol. XV, 2004) 186 __________________________________________________________________ the mind of the ruling parties puts at risk the unity and the indivisible integrity of the nation. The belief in Turkey is that public criticism, not only of government but also of its secular and ideological support, strikes at the stability of the state, its unity and, hence, its security. Such a conception, with the state clearly as referent object of security, inevitably puts security and human rights at odds. This realist conception has been the accepted norm in Turkey: more security brings about less liberty and vice versa. In attempting to protect the unity and the indivisible integrity of the state, the cost often becomes too great and in the process that which was to be preserved and protected switches from ‘human’ to ‘state’ security. When national security is conceptualized in this polarized fashion with fundamental rights and freedoms, the concept of proportionality gains the utmost significance. Consideration of proportionality requires balancing of the seriousness of the security threat against the damage to human rights and this involves delicate judgment. In the context of Turkey, we have to examine the ways in which arguments around proportionality are made with regard to secularism and unity of the nation, the two building blocks of the ‘idea’ of the Turkish state. In fact, two main movements in Turkey have been construed as serious threats to the safety and well being of the state: political Islam, as a threat to the secular nature of the state and the Kurdish movement, as a ‘separatist’ attempt to destroy the unity of the nation. Constructing these two movements as serious threats to ‘national security’ has given way to justifying excessive and unnecessary powers for security officials and has dramatically shifted the balance in considering the proportionality of the security threat against the violations of freedom of expression.

National Security within the Constitutional Framework An Interrupted Democracy: Analysis of the Military Interventions of 1960, 1971 and 1982 and their Constitutional Effects Since the beginning of the multi-party regime in 1945, the Turkish democratic experience has been interrupted twice by full-fledged military interventions and twice more by what can be termed ‘quasi-coups’. Each of these interventions has created deep and long-lasting effects in the legal, political and the social spheres.30 It is beyond the scope of this article and therefore not my intention to engage in a thorough analysis of the situations leading up to each intervention and/or an analysis of all the constitutional effects of each intervention. Rather, the purpose of this section is to analyse the constitutional effects of the interventions as they relate to the empowerment of the military and the entrenchment of the concept of ‘national security’ in the Turkish legal, political and the social system.

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Secure State, Insecure People 187 __________________________________________________________________ The systematic process of entrenching a particular conception of national security into the legal, political and social system is neither simply a result of the 1982 Constitution, nor has it been limited to the period following the 1980 military coup. It had already begun in 196131, was consistently enhanced by 1971 and 1973 constitutional changes brought about by the ‘quasi-coup’ of 1971 and finally became institutionalized in 1980 and continues to this day, as can be seen in the most recent ‘post-modern’32 coup of 1997.

27th of May 1960 Intervention and the 1961 Constitution Turkey’s first experience with democracy, which had started with the transition to the multi-party regime in 1945, was interrupted in 1960 when the military intervened to take over power. 33 From the beginning the military was convinced that more was needed than a simple change of government. Immediately after the coup, law professors from the University of Istanbul were summoned to Ankara to draft a new constitution. The new constitution was prepared as a solution to the weaknesses of the period 1950 –1960 and a reaction to the 1924 Constitution.34 The 1924 Constitution did not include the separation of powers doctrine and did not provide protection mechanisms for fundamental rights and freedoms. These were largely believed to be the cause of abuse of power by the Democrat Party, which in turn led to the intervention. For these reasons, the 1961 Constitution was based on the principle of the separation of powers, giving more power to the legislative and restricting the power of the executive. For similar reasons, the 1961 Constitution is quite advanced in terms of protecting fundamental rights and freedoms. Article 11 is stated very concisely, The strong role of the military and the significance of the concept of national security go back to the establishment of the republic in 1923 and the 1924 constitution. The strong role of the military can even be further traced back to the Ottoman Empire. However, the scope of this article will be limited to the period after the multiparty regime and the first military intervention of 1960, not only because going further back would require a much extended study of Turkish (and Ottoman) history but also because for the purposes of this study the author contends that the deep entrenchment of the concept of national security in the legal system as a threat to fundamental freedoms has mainly started during this period. 32 The words of one of the generals characterizing the actions of the military when they issued a memorandum to the Prime Minister in February 1997. For more, see infra note 62. 33 Among the many reasons cited for the intervention, the most prevalent was the Democrat Party’s uncompromising attitude toward the opposition, moving toward a one-party dictatorship. Most notably, the administrative and educational elites were extremely dissatisfied with the Democrat Party government and when the military joined in this general dissatisfaction and began to take an interest in politics the result was a military coup, which overthrew the government. C.H. Dodd, The Crisis of Turkish Democracy (The Eothen Press: Huntingdon, Cambs, 1990) at 10. 34 Saban Iba, Ordu Devlet Siyaset (Military, State, Politics), (Civiyazilari: Istanbul, 1998) at 190. 31

Finnish Yearbook of International Law (Vol. XV, 2004) 188 __________________________________________________________________ clearly establishing that fundamental rights and freedoms may only be restricted by law in conformity with the letter and spirit of the Constitution and the essence of fundamental rights and freedoms may not be touched ‘even with the aim of safeguarding the public interest, public morals, public order or national security.’ 35 In fact, in sharp contrast to the 1982 Constitution, national security as a reason to restrict fundamental rights and freedoms only appears in very few articles, namely regarding the inviolability of domicile under the privacy and protection of private life, freedom of residence and movement and freedom of the press. Despite this positive approach to fundamental rights and freedoms, the 1961 Constitution is very problematic in terms of shifting the civil-military balance toward the latter. The ‘exit guarantees’ that the military demanded be included in return for returning to their barracks constituted the foundations of an authoritarian structure and a strong military influence in the state affairs. Through lifetime ‘natural senator’ status given to the members of the National Unity Committee (NUC) 36 in the newly created Senate, parliamentary immunity they received and the special amnesty that the exiting generals required be included in the Constitution, essentially creating full immunity of their actions during the military rule, the military managed to create a space for itself in the state structure, guaranteeing all their privileges and avoiding accountability. The cornerstone of the military structure was the National Security Council (NSC), which was given a constitutional status with a heavily military composition. Established by Article 111 of the Constitution, the responsibility of the Council was to ‘let the Council of Ministers know its views on taking decisions and ensuring necessary coordination with regard to the formulation, establishment, and implementation of the national security policy of the State’. The question here is whether the establishment of this Council constitutes the subjection of civil authority to the military. Although the composition of the Council was, at this point, still rather balanced between the civil and the military, and the expression used in Article 111 may indicate no legally binding powers over the government; in practice, a very strong institution was created with possible sanctions in case of noncompliance with its decisions.37 Having been established based on the concept of Article 11 of the 1961 Constitution of the Turkish Republic, adopted on July 9, 1961; entered into force on July 20, 1961. For the full text, see <www.anayasa.gen.tr/1961ay.htm>. For the full text in English, see Constitution of the Turkish Republic. Translated by S. Balkan; A.E. Uysal; K. Karpat. (Ankara 1961). Emphasis added. Last visited July 2005. 36 The military announced that power was now in the hands of a ‘National Unity Committee’ (NUC) headed by Cemal Gursel, the head of the Turkish Armed Forces. The day after the coup, it was announced that Cemal Gursel was appointed head of state, prime minister and minister of defence, in theory giving him more absolute powers than even Ataturk, the founder of the Republic, had ever had. 37 Serap Yazici, Turkiye’de Askeri Mudahalelerin Anayasal Etkileri (The Constitutional Effects of Military Interventions in Turkey) (Yetkin Yayinlari: Ankara, 1997) at 85. 35

Secure State, Insecure People 189 __________________________________________________________________ national security ideology, this Council was at a very high level in the state hierarchy with a mission to provide a venue for the military to have a say in the government affairs. In short, the National Security Council is a ‘bureaucratic high council’ with no political accountability but with enormous powers over and above the government and the parliament.38 These powers were first enhanced in 1971 and again in 1982, and the expressions used in the Constitution have significantly increased the Council’s binding powers on the government. The 27th of May 1960 coup is a watershed in Turkish politics not only because it can be seen as the start of the tradition of the military interventions in case of crisis but also in terms of shifting the military-civil balance of powers towards the military. With each intervention the military had the power to shape a new constitution giving them more constitutional powers and hence breaking away with the principle of the military being subject to civil government, as it should be in a democracy. In 1960, although the generals left the government relatively quickly (after 17 months) and allowed for elections again, they made sure to install the military elements in the foundations of the state structure: a military President, lifetime senators from the NUC in the Senate and, most importantly, the formation of the National Security Council. The foundations of the expanding role and status of the military within the state and public arena were built during this period.

Quasi-Coup and the Constitutional Changes of 1971 After the ‘return to democracy’ in 1963, between the years of 1963 and 1971 Turkey was governed by several coalitions none of which managed to bring lasting stability. The inability of the government to prevent social unrest and violence coupled with the lack of confidence civil and military bureaucrats had in the government led the military this time to engage in a ‘quasi-coup’. The military came close to intervening directly, but instead handed the prime minister a memorandum, which really amounted to an ultimatum by the armed forces. The memorandum stated that unless a strong and credible government was formed, the army would ‘exercise its constitutional duty’ and take over to prevent ‘anarchy’. During the period between 12 March 1971 and 1973, the military orchestrated the formation of four governments through the appointment of bureaucrats outside the Parliament. One of the primary expectations of the military from these governments was changing those articles of the Constitution believed to have been the cause of the preceding situation.39 The interim governments executed the Iba, Ordu Devlet Siyaset (Military, State, Politics), supra note 34, at 206. Yazici, Turkiye’de Askeri Mudahalelerin Anayasal Etkileri (The Constitutional Effects of Military Interventions in Turkey), supra note 37, at 112.

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Finnish Yearbook of International Law (Vol. XV, 2004) 190 __________________________________________________________________ majority of the constitutional changes that the military expected. The changes that were made through the laws passed on 22nd of September 1971 and 30th of March 1973 drastically changed the articles related to fundamental rights and freedoms, and continued to empower the military and weakened the supervision of the judiciary. Through the changes made to Article 11, fundamental rights and freedoms, which were seen as the root cause of political unrest, were severely restricted. The wording of Article 11 was altered significantly. Whereas in 1961 the emphasis was on protecting the essence of the rights, the amended version started out by listing all the conditions under which fundamental rights and freedoms can be restricted, adding a few new ones. Among those was ‘to safeguard the indivisible integrity of the State with its territory and nation’ which, from that time on, along with national security, would become almost a catch phrase for the restriction of fundamental rights and freedoms. Similar restrictions were brought to individual rights such as the right to personal liberty and security, privacy and protection of private life, freedom of the press, freedom of religion and conscience and many others. The role of the National Security Council (NSC) that was established by the 1961 Constitution was significantly expanded. Article 111 concerning the decisions of the NSC was changed to empower the NSC to ‘make recommendations to the Council of Ministers with regard to the formulation, establishment and implementation of the national security policy of the state…’40 Although it can be argued that ‘making recommendations’ still does not constitute legally binding decisions, this small but significant change had the effect of making the decisions of the Council more binding upon the governments at least in a political sense, hence again increasing the power of the military over the civil authority. The most significant development in terms of expanding military power in the judicial area was the establishment of the State Security Courts through Article 136, as amended in 20 March 1973: State Security Courts shall be established to deal with offences against the indivisible integrity of the state with its territory and nation, the free democratic order, or against the Republic whose characteristics are defined in the Constitution, and offences directly involving the security of the state. However, provisions concerning the state of martial law and state of war are reserved.

Until it was changed in 1999, the regular and substitute members as well as the prosecutors were appointed from the military judges empowering the military within the judicial system. These are permanent courts that function in regular times; in fact this is the purpose of these courts: the desire of the military to have a say in the

40

Emphasis added.

Secure State, Insecure People 191 __________________________________________________________________ judicial system in times outside of martial law and states of emergencies.41 Establishing special courts to safeguard the security of the state gives the impression that the state (mainly the military bureaucracy) does not have confidence in the functioning of its regular judiciary system. Besides, presence of military judges in these courts severely jeopardized their independence. Overall, the changes in 1971 and 1973 not only continued to shift the balance in the civil-military relationship toward the latter, but through the restrictions of fundamental rights and freedoms, they also extended the state authority at the expense of the individual and the society. Especially the establishment of the state security courts increased the power of the military in the judicial system in an unprecedented way. These courts tried over 3000 people before they were abolished in 1976 (only to be re-established by the 1982 Constitution).

12th September 1980 Intervention and the 1982 Constitution What necessitates the development of a new constitution is the need for authority and the need for getting rid of the 1961 Constitution which is one size too big for us. It is the reason why we are here now. 42 We are creating this Constitution in a way that will ensure that there is no need for military interventions anymore.43 General Kenan Evren, Chief of Staff in 1980

The 12th September 1980 Intervention and the 1982 Constitution are turning points in terms of the process of shifting the civil-military balance toward the latter and the entrenching of the concept of national security into the legal system. The 1982 Constitution seems to have had as its central aim the empowering of the state authority, as opposed to the principle of liberal constitutionalism, which focuses on restricting political power and protecting the fundamental rights and freedoms of the individual and the society. This is evident in many official documents.44 The Constitution was made in such a way that would entrench the role of the military in Yazici, Turkiye’de Askeri Mudahalelerin Anayasal Etkileri (The Constitutional Effects of Military Interventions in Turkey), supra note 37, at 130. 42 Bulent Tanor, Turkiye’nin Insan Haklari Sorunu (Turkey’s Human Rights Problem) (BDS Publishing: Istanbul, 1994) at 193. My translation. 43 Iba, Ordu Devlet Siyaset (Military, State, Politics), supra note 34, at 264. My translation. 44 The Law for the Establishment of the Committee to prepare the constitution defined its underlying philosophy as being ‘first and foremost based on the concepts of unity of the state and the nation, national solidarity and public order and peace.’ According to the Head of the National Security Committee (NSCt), ‘individual freedoms depend on protecting the sovereignty of the state.’ Tanor, Turkiye’nin Insan Haklari Sorunu (Turkey’s Human Rights Problem), supra note 42, at 193. 41

Finnish Yearbook of International Law (Vol. XV, 2004) 192 __________________________________________________________________ state affairs and politics so strongly that it would be able to control the state directly in every aspect. The National Security Committee (NSCt) regime headed by the Chief of Staff aimed to completely reshape the economic, political, and social structure that existed, primarily seeking to demobilize all the civil society movements as well as depoliticize society itself.45 Fundamental Rights and Freedoms The 1982 Constitution significantly redefined the relationship between the state and the citizen. Fundamental rights and freedoms were severely restricted and individual duty emphasized, the duty being not to the society but to the State in capital letters.46 The process of restricting fundamental rights and freedoms in the name of state, its security and unity was brought to completion in 1982. The Preamble of the Constitution deprived certain ‘thoughts’, that were deemed to be a threat to the state’s security, of constitutional protection, and for a wide variety of reasons: No protection shall be afforded to thoughts or opinions contrary to Turkish national interests, the principle of the indivisibility of the existence of Turkey with its State and territory, Turkish historical and moral values or the nationalism, principles, reforms and modernism of Atatürk….47

Although superficially the source of the 1982 Constitution seems to be the 1961 Constitution and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), closer analysis reveals that their essence has been altered significantly, by taking from these two documents the first paragraphs stating rights and freedoms and then adding limitations that take away all the rights and freedoms. A very important distinction as far as the general principle of fundamental rights and freedoms are concerned is that in the 1961 Constitution, it is clearly stated that no restrictions can be made – not even for public order or national security – that change the essence of the rights and freedoms. Already in 1971, this had been altered, first by describing the restrictions, then the need to protect the essence of the rights. In 1982, there is no mention of the untouchability The discussion of relevant articles as relates to this section will be based on the original 1982 constitution and will not take into account the amendments made to the constitution on 3 rd of October 2001. These amendments will be further analyzed in a subsequent section. Although many Articles have been changed significantly, the purpose here is to analyse the constitution as it was originally and for almost 20 years after its making. 46 Taha Parla, Turkiye’de Anayasalar (Constitutions in Turkey) (Iletisim Yayinlari: Istanbul, 2002) at 45. 47 Preamble of the 1982 Constitution of the Turkish Republic, adopted on 7 November 1982; entered into force on 9 November 1982. For the full text, see <www.anayasa.gen.tr/1982ay.htm>. For the full text in English, see <www.tbmm.gov.tr/english/constitution.htm>. Emphasis added. Last visited July 2005. 45

Secure State, Insecure People 193 __________________________________________________________________ of the essence, only a long list of reasons for which fundamental rights and freedoms can be restricted. Articles 13 – 15 provide further layers of restrictions. First, based on Article 13, grounds for restricting fundamental rights and freedoms have been expanded to include national security, public interest and also for specific reasons set forth in the relevant Articles of the Constitution. What is perhaps most troublesome above all these restrictions is the final clause of Article 13 that states: ‘The general grounds for restriction set forth in this article shall apply for all fundamental rights and freedoms.’ Thus in addition to the specific restrictions included in each article, all fundamental rights and freedoms are restricted for reasons stated in Article 13.48 Furthermore, Article 1449 provides a long list of grounds for prohibition of abuse of fundamental rights and freedoms. Finally, Article 15 allows not only for suspension of the exercise of fundamental rights and freedoms in times of war, mobilization, martial law, or state of emergency, but also allows for derogations from the Constitution: ‘… measures may be taken, to the extent required by the exigencies of the situation, which derogate the guarantees embodied in the Constitution, provided that obligations under international law are not violated.’ Considering the frequency of martial law and state of emergency in Turkey 50, this article can be seen almost as an additional way of restricting fundamental rights and freedoms. In addition to these many layers of restrictions embodied in the general provisions of fundamental rights and freedoms, each individual right and freedom has its own restrictions. Article 19 concerns the right to personal liberty and security, and its very long nine paragraphs are written with an attitude of a restricting and punishing state. It is more of a procedural explanation of

In its new form, Article 13 listed the following grounds for restriction: safeguarding the indivisible integrity of the State with its territory and nation, national sovereignty, the Republic, national security, public order, general peace, the public interest, public morals and public health, and also specific reasons set forth in the relevant Articles of the Constitution. 49 Article 14, Paragraph 1: None of the rights and freedoms embodied in the Constitution shall be exercised with the aim of violating the indivisible integrity of the State with its territory and nation, of endangering the existence of the Turkish State and Republic, of destroying fundamental rights and freedoms, of placing the government of the State under the control of an individual or a group of people, or establishing the hegemony of one social class over others, or creating discrimination on the basis of language, race, religion or sect, or of establishing by any other means a system of government based on these concepts and ideas. 50 Since the establishment of the Turkish Republic in 1923, in some parts of the country (in the southeast region) there have been a total of 25 years of martial law and 14 years of state of emergency, adding up to a total of 39 years, almost the half of the existence of the Republic. State of emergency in the southeast region has lasted until very recently. Iba, Milli Guvenlik Devleti (National Security State), supra note 23, at 127. 48

Finnish Yearbook of International Law (Vol. XV, 2004) 194 __________________________________________________________________ investigation and prosecution rather than a guarantee of the protection of security and liberty.51 Freedom of religion and conscience, thought and opinion, expression and dissemination of thought, science and arts and the press are among the freedoms that have been most severely restricted.52 Paragraph 3 of the same article also prohibits expression and dissemination of thought in any language prohibited by law.53 Article 27 concerning freedom of science and arts states that everyone has the right to study and teach freely, explain, and disseminate science and arts and to carry out any kind of research in these fields. However, Paragraph 2 constrains the extent of this freedom by prohibiting the exercise of the right ‘for the purpose of changing the provisions of Articles 1, 2 and 3 of this Constitution.’ 54 As such, Paragraph 2 seems to prohibit the open discussion or criticism of certain principles even though they may be completely within the parameters of public peace and order. Furthermore, Paragraph 3 of the same article allows for the regulation by law of the entry and distribution of foreign publications in the country, calling into question the extent to which ‘any kind of research’ can be carried out. Article 33 concerning the freedom of association essentially does away with that freedom. Associations cannot have political goals, cannot get support from political parties or support them, and cannot act in cooperation with labour unions, According to Article 19 of the 1982 Turkish Constitution, bringing an arrested or detained person before a judge is increased to forty-eight hours and in the case of offences committed collectively, to fifteen days, excluding the time taken to send him to the court nearest to the place of arrest. Furthermore, these periods may be extended during a state of emergency, martial law or in time of war. In fact, in the 1980s and early 90s, with the passing of relevant laws, it has been extended to a period of up to 90 days. Notification of the next of kin of the situation of the person arrested or detained is also restricted in cases of ‘definite necessity pertaining to the risks of revealing the scope and subject of the investigation compelling otherwise.’ 52 Article 26, Paragraph 2: The exercise of these freedoms may be restricted for the purposes of preventing crime, punishing offenders, withholding information duly classified as a State secret, protecting the reputation and rights and the private and family life of others, or protecting professional secrets as prescribed by law, or ensuring the proper functioning of the judiciary. 53 In 1991, The Law On Publication in Languages Other Than Turkish was repealed restoring the freedom of press and publication in every language. However, the provisions in the Constitution that impose restrictions on ‘languages prohibited by law’ (Article 26/3 and 28/2) remained in force until they were repealed in 2001. 54 Article 1: The Turkish State is a Republic. Article 2: The Republic of Turkey is a democratic, secular and social State governed by the rule of law; bearing in mind the concepts of public peace, national solidarity and justice; respecting human rights; loyal to the nationalism of Atatürk, and based on the fundamental tenets set forth in the Preamble. Article 3: The Turkish State, with its territory and nation, is an indivisible entity. Its language is Turkish. Its flag, the form of which is prescribed by the relevant law, is composed of a white crescent and star on a red background. Its national anthem is the ‘Independence March’. Its capital is Ankara. 51

Secure State, Insecure People 195 __________________________________________________________________ public professional organizations or foundations. In other words, all ties of associations with other organized groups have been severed and the associations have been isolated from social and political life. Furthermore, they are restricted by all the general restrictions brought by Article 13.55 The right to hold meetings and demonstration marches has similarly been ‘emptied’ of its content. Article 34 starts by stating that ‘Everyone has the right to hold unarmed and peaceful meetings and demonstration marches without prior permission’; but then goes on to list multiple restrictions, including the requirement for the competent administrative authority to determine a site and route for the demonstration march, and the ability of the competent authority to prohibit or postpone meetings and demonstrations for reasons like protecting national security or fundamental characteristics of the Republic among others. Civil-Military Balance The 1982 Constitution also strengthened the ‘third arm’ of the executive branch on top of the Council of Ministers and the President: namely, the military bureaucracy.56 The military, which in parliamentary democracies should theoretically be accountable to the executive, instead is given a special position where, in some cases, it is able to dictate its views on the civil authority in matters concerning political and social decisions. Firstly, in the 1982 Constitution, the military, instead of being a sub-heading under the Administrative, is a fourth heading at the same level as the President and the Council of Ministers. This design of the Constitution already empowers the military tremendously. Secondly, the Chief of the General Staff has a position nearly equivalent to that of any other minister. 57 Thirdly, the National Security Council established by the 1961 Constitution and strengthened by the 1971 amendments received immense powers under the 1982 Constitution. It is now made up of five members from the military58 compared to four from the civil government. 59 The views it can submit to the Council of Ministers are no longer limited to those concerning ‘national security’, but rather have been vastly expanded See supra note 48. Parla, Turkiye’de Anayasalar (Constitutions in Turkey), supra note 46, at 86. 57 According to Article 117, Paragraph 4: ‘The Chief of the General Staff shall be appointed by the President of the Republic on the proposal of the Council of Ministers… The Chief of the General Staff shall be responsible to the Prime Minister in the exercise of his duties and powers.’ 58 In cases where the President has military roots, which is often the case, this amounts to having, de facto, six military members versus 4 civilian. 59 Article 118, Paragraph 1: The National Security Council shall be composed of the Prime Minister, the Chief of the General Staff, the Ministers of National Defence, Internal Affairs, and Foreign Affairs, the Commanders of the Army, Navy and the Air Force and the General Commander of the Gendarmerie, under the chairmanship of the President of the Republic. 55

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Finnish Yearbook of International Law (Vol. XV, 2004) 196 __________________________________________________________________ to ‘give priority consideration to the decisions of the NSC concerning the measures that it deems necessary for the preservation of the existence and independence of the State, the integrity and indivisibility of the country and the peace and security of society.’60 Furthermore, the President, in drawing up the agenda of the NSC, will weigh the proposals of the Prime Minister and the Chief of the General Staff equally.61 Even though political accountability for national security lies with the Council of Ministers, decisions concerning national security are taken at the NSC where the Turkish Grand National Assembly is represented only by the Prime Minister and three of his Ministers. The Turkish Grand National Assembly then implements the decisions taken. This format makes the NSC a constitutional institution; a ‘higher cabinet’ in a sense, and the Turkish Grand National Assembly is bound to implement their decisions. The Parliament then becomes a body that has to approve the legislation and decrees having force of law that are discussed and passed by the NSC (passage by the Council of Ministers is a formality). In fact, no legislation concerning national security can be discussed at the Parliament unless it follows this procedure. Cases where the government does not implement the decisions taken by the NSC lead to sanctions ranging from the forced resignation of the government and the Prime Minister to a change of government62, and ultimately to intervention.

Article 118, Paragraph 3 of the Turkish Constitution. Article 118, Paragraph 4 of the Turkish Constitution. 62 In 1997, during Welfare Party’s coalition government with the centre-right DYP, the military establishment, upset by attempts by the Welfare Party to legalize certain aspects of the demands of political Islam at odds with Turkey’s constitution as well as radical statements by some party leaders insinuating call for ‘Shari’ a law’, declared ‘fundamentalism’ Turkey’s foremost threat. In February 1997, the military-dominated National Security Council presented Mr. Necmettin Erbakan, leader of the Welfare Party, with a program to keep Islamist activity in check, ordering the government to cut back on religious schools and Koran courses, among many other ultimatums. The government promised to implement the program, but did little. On June 11, 1997, the General Staff Headquarters issued a statement publicly warning that it would consider using force to crush Islamic radical activities if necessary. After the Iranian ambassador spoke at a rally for radical Islam in an Ankara suburb, the military sent tanks through the streets as a warning. One week later, Mr. Erbakan resigned and the president designated a pro-Western conservative to form a government without Welfare. In February 1998, after a trial in the Constitutional Court, the Welfare Party was closed and several of its leaders, including Mr. Erbakan, were barred from politics for a period of five years. 60 61

Secure State, Insecure People 197 __________________________________________________________________

National Security in Practice – State of Freedom of Expression Violations of the Freedom of Thought, Speech and Expression Conceptually, freedom of expression is a complex right. On the one hand, it is widely accepted that freedom of thought and expression are fundamental and indispensable to the functioning of pluralistic democracies. On the other hand, it is also universally accepted that these freedoms may legitimately be subjected to restriction on various grounds.63 Under international law, Article 19(3) of the International Covenant on Civil and Political Rights (ICCPR) sets out the test for restrictions as follows: The exercise of the rights provided for in paragraph 2 of this article (the right to freedom of expression) carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: For respect of the rights or reputations of others; and For the protection of national security or of public order, or of public health or morals.

The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) similarly states that any such restrictions must be provided by law and are necessary in a democratic society and lists territorial integrity or public safety, the prevention of disorder or crime, preventing the disclosure of information received in confidence, and for maintaining the authority and impartiality of the judiciary as additional legitimate aims.64 At first sight, the position may appear relatively clear, at least at the international level, as the Articles both clearly stipulate the aims, which any legitimate restriction on freedom of expression must pursue as well as the test, which any such restrictions must meet, namely that they are provided by law and are necessary. The problem arises in Turkey when the constitutional framework allows for an excessive amount of laws restricting freedom of expression that are incompatible with Turkey’s obligations under international law. Toby Mendel, ‘National Security vs. Openness: An Overview and Status Report on the Johannesburg Principles’ in National Security and Open Government: Striking the Right Balance (Campbell Public Affairs Institute, The Maxwell School of Syracuse University: New York, 2003) 3. <www. campbellinstitute.org>, last visited June 2004. 64 Article 10, European Convention for the Protection of Human Rights and Fundamental Freedoms. 63

Finnish Yearbook of International Law (Vol. XV, 2004) 198 __________________________________________________________________ ‘Crimes of thought’ in Turkey have existed in a real sense and on much broader grounds than allowed by international law. In an April 2002 report, Human Rights Watch stated that Turkish law and regulations contain more than 300 provisions constraining freedom of expression, religion and association. 65 Many of the repressive provisions are found in the Press Law, the Political Parties Law, the Trade Union Law, the Law on Associations, and other legislation imposed by the military junta after its coup in 1980.66 Others exist in the Turkish Penal Code or were added by the Anti-Terror Law of 1991. These provisions are applied particularly to punish views opposing the government, especially regarding certain taboo subjects that the state regards as central to its integrity and a threat to its security violating the principles of indivisibility of the territory and the secular nature of the state as provided under Articles 13 and 14 of the Constitution. Although in different periods different subjects have dominated the agenda, the behaviour of the security forces, the role of the military, and Ataturk, his principles and Kemalist ideology remain more or less ‘the constant taboos’. In the post-1980 era, the ‘unity’ and ‘secularity’ concerns have been mainly expressed in the form of two additional taboos: the military goal of defeating Kurdish separatism and political Islam, with the latter gaining more ground recently. Between the period following the 1980 military intervention and 1991, mainly the notorious Articles 141, 142, and 163 of the Turkish Penal Code were used as justification for prosecutions of ‘thought crimes’.67 They imposed long terms of imprisonment for advocacy of communism, Kurdish ‘separatism’, or theocratic government respectively. These Articles were taken from the fascist laws of Italy under Mussolini and had the effect of restricting any thought opposed to the established state order.68 Immediately following the 1980 coup, a wave of arrests swept the country. In the first six weeks after the coup 11,500 people were arrested; by the end of 1980, the number had grown to 30,000 and after one year 122,600 arrests had been made.69 University professors, students, teachers, journalists and lawyers, in short, anyone who had expressed slightly leftist (or in some cases Islamist) views before September 1980, was likely to get into trouble. Newspapers were regularly censored or confiscated and journalists prosecuted. Arrests and prosecutions were not limited to the media and publications; ordinary people in their daily life were also subject to 65 Human Rights Watch, Questions and Answers: Freedom of Expression and Language Rights in Turkey, New York, April 2002, <www.hrw.org>, last visited June 2004. 66 Ibid. 67 Tanor, Turkiye’nin Insan Haklari Sorunu (Turkey’s Human Rights Problem), supra note 42, at 64. 68 Ibid. 69 Zurcher, Turkey: A Modern History, supra note 28, at 294.

Secure State, Insecure People 199 __________________________________________________________________ very close scrutiny: a private letter, commentary on the Soviet Republic during a casual conversation, or even opinions expressed as an answer to an exam question could be basis for prosecution.70 Based on the data from the Department of Justice, between 1982 and 1990, 10,949 people were prosecuted based on Articles 141, 142 and 163.71 The other major area of violations, again up until 1991, was based on the Law on Publication in Languages Other Than Turkish, passed by the military in 1983 and punished with imprisonment anyone who conveyed any idea in ‘languages which are not official languages of other nations’, a law clearly directed at suppression of the Kurdish language. Political prisoners who delivered their defence speeches in Kurdish were given additional prison sentences. By 1990, after almost a decade of campaigns against these restrictive laws by political parties, trade unions and other organizations, the opinion that free and open political debate was necessary for a healthy society was gaining ground. In April 1991, as part of the Anti-Terror Law, Articles 141, 142 and 163 of the penal code were repealed and some prisoners of conscience were released. The AntiTerror Law, however, introduced provisions that proved to be even more problematic than those it repealed. Article 8 of the Anti-Terror Law, entitled ‘Propaganda Against the Indivisibility of the State’ punished any expression of separatism, whether violent or not, ‘irrespective of the methods and aims and ideas’. By this provision, the offences of the earlier Article 142/3 of the penal code (‘disseminating propaganda undermining national pride’) became even more undefined. Activities contained within the widely drawn definition of ‘terrorism’ included non-violent forms of political dissent, and Article 8 imposed long terms of imprisonment and heavy fines. Combined with the intensification of the conflict in the southeast and the prime minister and the chief of staff’s call for media support in a ‘total war’ against separatism, the second half of 1993 and 1994 saw a dramatic increase in detentions and prosecutions under Article 8. Use of Article 8 has often been justified on the grounds that Turkey has a vital security problem. However, in many cases, charges were brought against journalists, lawyers, political activists, academics, writers and publishers for simply opposing government policy in the southeast.72 Many of those imprisoned have employed no violent means and in many cases have strongly criticized armed opposition movements. Journalists, academicians, and intellectuals have a crucial role to play in creating open debate and questioning established norms. In Turkey, the debate for

Tanor, Turkiye’nin Insan Haklari Sorunu (Turkey’s Human Rights Problem), supra note 42, at 65. Ibid., at 70. 72 Amnesty International Report, No Security Without Human Rights, 1996. <www.amnesty.org/ ailib/intcam/turkey/turkfoc.htm>, last visited June 2004. 70 71

Finnish Yearbook of International Law (Vol. XV, 2004) 200 __________________________________________________________________ change is rather limited as those views that oppose government policies are unwelcome and often severely punished. In 1995, the President approved amendments to Article 8 under which ‘separatist propaganda’ remained an offence that could result in imprisonment, even if the defendant has in no way advocated violence, but the phrase ‘irrespective of the methods and aims and ideas’ was removed. Maximum sentences were reduced from five to three years, and courts were given discretion to impose fines or suspended sentences for first offences. Most of those imprisoned under Article 8 were released pending retrial. However, most retrials simply confirmed the prisoners’ sentences, an indication that the amendment was more a gesture towards human rights reform for the European Union’s upcoming decision to approve the customs union than a substantive policy change.73 After this ‘cosmetic’ amendment, Article 8 has continued to be widely used and has been supplemented by Article 312.2 of the penal code, which punishes ‘inciting people to enmity and hatred by pointing to class, racial, religious, confessional or regional differences’. Article 312.2 has been largely employed against those writing about and debating the Kurdish question. In the absence of specific legislation prohibiting ‘Islamist propaganda’,74 it has also been used against Islamists. As a result of the military’s declaration of ‘fundamentalism’ as the major threat to Turkish Republic, pressure against the Islamist press and writers increased markedly after the late 1990s. Two main laws are primarily used to prosecute Islamists: The Law to Protect Ataturk 75 and Article 312.2 of the Penal Code. There has even been the suggestion of reinstituting Article 163 of the Penal Code, which was used in the past to penalize Islamists and was abolished in 1991. The courts have been very creative in determining what counts as incitement to hatred. In 2000, Akin Birdal, President of the Turkish Human Rights Association, was imprisoned under Article 312.2 for a speech in which he called for ‘peace and understanding’ between Kurds and Turks. He was obliged to resign his post, as the Law on Associations forbids persons who breach this and several other laws from serving as association officials.76

Ibid. Until it was abolished, Article 163 of the Penal Code, which prohibited conducting propaganda using religion or religious symbols, was used against Islamists. 75 Article 1.1 of the Law to Protect Ataturk penalizes, ‘anyone who publicly insults or curses the memory of Ataturk … with a sentence of between one and three years (increased by one half if the act is carried out in the press)’. It has primarily been used against Islamists, although mainstream intellectuals have also been sentenced. 76 Human Rights Watch, Questions and Answers: Freedom of Expression and Language Rights in Turkey, New York, April 2002, , last visited June 2004. 73 74

Secure State, Insecure People 201 __________________________________________________________________ In 1991, the Law on Publication in Languages Other Than Turkish was repealed, thus restoring the freedom of press and publication in every language. However, the provisions in the Constitution that impose restrictions on ‘languages prohibited by law’77 remained in force until they were repealed in 2001. Similar to the case with Articles 141, 142, and 163 of the Penal Code, violations of freedom of publications in any language (mainly Kurdish) continued uninterrupted, albeit under different legal justifications. For example, when elected to parliament in October 1991 for the Democracy Party (DEP), Leyla Zana took the oath of loyalty in Turkish, as required, but added in Kurdish: ‘I have completed this formality under duress. I shall struggle so that the Kurdish and Turkish peoples can live peacefully together in a democratic framework.’ Leyla Zana’s use of Kurdish prompted legal proceedings against her and her DEP colleagues. In 1994, DEP was closed for ‘separatism’ and, Ankara State Security Court sentenced Leyla Zana and three other DEP members of parliament to fifteen years’ imprisonment for ‘membership of an armed organization.’78 They were imprisoned for 10 years until their recent release in June 2004. The prosecutions for ‘thought crimes’ were hardly limited to ‘separatist propaganda’ under Article 8 of the Anti-Terror Law or ‘incitement to hatred’ under Article 312.2 of the Penal Code. Article 155 of the Penal Code, which penalizes publishing articles that ‘make people unwilling to serve in the military’ is one that is designed for protecting the taboo about the role of the military. Under this article, ‘undermining the institution of military service’ can bring a sentence of up to two years in prison. Article 159, one of the most widely employed laws, grants a ‘moral personality’ both to corporate bodies, such as the judiciary and parliament, and to abstract concepts like ‘Turkishness’, and criminalizes ‘insulting the moral personality of Turkishness, the Republic, the Parliament, the Government, State Ministers, the military or security forces, or the Judiciary with a punishment of no less than one year and no more than six years of maximum security imprisonment’. Demands by intellectuals for an open government and transparency are often among the easiest targets to be construed as insults to the state. Article 169 criminalizes support for an illegal armed organization. Definition of what constitutes support or an illegal armed organization is left to interpretation and application is rather arbitrary. During the crisis following the killing of twenty-eight prisoners in transfers into small-group isolation at F-type prisons in December 2000, the Justice Ministry announced that statements deemed as supporting the prisoners’ hunger strikes would be prosecuted as ‘support for an illegal armed Articles 26/3 and 28/2 of the 1982 Turkish Constitution. Human Rights Watch, Questions and Answers: Freedom of Expression and Language Rights in Turkey, New York, April 2002, , last visited June 2004. 77 78

Finnish Yearbook of International Law (Vol. XV, 2004) 202 __________________________________________________________________ organization’ under Article 169 of the Penal Code.79 Article 311 has a provision to punish ‘incitement of the public to commit an offence’, regardless of whether the incitement is peaceful opinion or violent activity. Similarly, Article 312.1 criminalizes the ‘praising of an action that is considered an offence by law or the encouragement of disobedience against the laws’, without taking into account the intent and the methods used. Article 1 of the Press Law gives prosecutors the power to stop distribution of a publication without previously obtaining a court order, a power that has been used extensively. A judge may also confiscate any publication for reasons of national security or if a criminal investigation has been opened against it. Periodicals may be temporarily closed by a court order if the writers for the publication have been convicted of certain crimes, such as threatening the unity of the state. Article 2.2 of the Press Law sets the temporary period of closure from three days to one month. In addition, Article 16 assigns a ‘responsible editor’ to publications and articles in order to broaden criminal liability. Article 8 of Police Duty and Responsibility Law gives police the administrative right to close any establishment that stages plays, films, or lectures if they contain material considered harmful to ‘the indivisible integrity of the state with its nation, the constitutional order, public order and security and public morals’. The Law Concerning the Founding and Broadcasts of Television and Radio allows broadcasting only in Turkish and limited broadcasting of teaching or broadcasting news only in those languages that contribute to universal culture and science, again a prohibition clearly aimed at the Kurdish language. The list is lamentably long and covers a broad range of areas. If there is a possibility for the slightest threat to the ‘unity, and indivisible integrity of the secular state’, the Turkish Law is sure to have a provision in one law or another to punish it. Legislation, rather than the guarantor of liberties and the rule of law, is a restrictive and threatening force on these concepts. In this sense, requirement that the restrictions are ‘prescribed by law’ that international instruments provide is not an effective safeguard in protecting freedom of speech in Turkey. Despite the limitations of the legislation, the judiciary still has a lot of power to transform the situation by using the international conventions as a guide.80 In several of its judgments, the European Court of Human Rights clearly stated that any assessment of whether a given restriction violates Article 10 requires an evaluation of ‘whether a fair balance has been struck between the individual’s fundamental right to freedom of expression and a democratic society’s legitimate Ibid. Article 90 of the Turkish Constitution states: ‘…international agreements duly put into effect carry the force of law.’

79 80

Secure State, Insecure People 203 __________________________________________________________________ right to protect itself’.81 In addition, given the importance placed on freedom of expression, ‘the need for any restrictions must be established convincingly’.82 It is not enough for a government to show that the purpose of limitations imposed was ‘useful’, ‘reasonable’ or ‘desirable’; instead it must show that the measures met a ‘pressing social need’. However, in the case of Turkey, the arguments for ‘pressing social need’ and ‘necessity in a democratic society’ have often favoured the need to protect the unity and secularity of the nation rather than the fundamental rights of the people. The pressing social need in most cases was the threat of terrorism or Islamic fundamentalism. As a consequence, unfortunately, the courts have not provided a positive and lasting contribution to overcome the persistence of ‘thought crimes’.83

Violence Against Journalists and Human Rights Defenders This is a country where the security forces throw the slogan: ‘Damn Human Rights!’ during demonstrations. How can you expect a human rights culture to develop? Director of one of the Human Rights Associations in Turkey

Journalists and human rights activists are not only subject to prosecution and imprisonment; they are also continuously harassed by the state and security forces. Journalists and human rights defenders are particularly prone to violations by security forces for two reasons. First, in their work to document and report systematic human rights violations, they expose and question the state practices, often to foreign delegations. Second, in the highly charged atmosphere intensified by political violence, the authorities often perceive opposition to the torture or extra-judicial killings of suspected members of armed opposition groups as support for those groups. 84 Thus, those who work to uncover violations themselves become targets by the government and the security forces. In a 1996 Report on Human Rights, Amnesty International characterized Turkey as one of the world’s most dangerous countries in which to pursue a career in journalism.85 They based this conclusion on the observation that although in the early 1980s journalists were being sentenced to decades in prison, the early 1990s Sunday Times v. United Kingdom, ECHR Judgment of 26 April 1979, Series A, No. 30, para. 59. Ibid. 83 Report by TUSIAD (Turkish Industrialists and Businessmen’s Association), Perspectives on Democratization, Istanbul, TUSIAD Publication, 1997. 84 Amnesty International Report, No Security Without Human Rights, 1996. <www.amnesty.org/ ailib/intcam/turkey/turkfoc.htm>, last visited June 2004. 85 Ibid. 81 82

Finnish Yearbook of International Law (Vol. XV, 2004) 204 __________________________________________________________________ saw an emergence of new forms of violation: disappearances and extra-judicial executions. According to a Human Rights Watch Report on Freedom of Expression in Turkey, between 1992 and 1995, twenty-nine reporters died in custody, ‘disappeared’, or were killed by the security forces, the overwhelming majority in the southeast or for reasons connected with the conflict there. 86 Many of these extrajudicial killings are believed to be carried out by groups allegedly linked to security forces or acting in collaboration with the police. The vast majority of those killed extra-judicially worked for Kurdish-nationalist papers such as Ozgur Gundem and Ozgur Ulke. 87 One of the most striking cases of violence against human rights activists was that against Akin Birdal. As the Head of the Human Rights Association, Akin Birdal has been the target of numerous prosecutions, both personally and in his capacity as the head of the association. Between 1995-1998, he was charged in 21 cases, the overwhelming majority of which were under either Article 8 of the Anti-Terror Law (for ‘separatist propaganda’) or Article 312 of the Penal Code for his speeches or writings advocating a peaceful resolution to the Kurdish problem. 88 In these, as in so many similar cases against activists and intellectuals, the state justified its charges on the claim that such opinions support terrorist activities and threaten the territorial integrity and/or the secular foundations of the Turkish Republic.89 On 12 May 1998, Akin Birdal was shot six times, injuring his lungs and leg. He was taken to the hospital in critical condition but survived. This attack followed a reckless campaign in the mainstream press against Birdal and several other columnists. His case is striking as it illustrates the dangers to which human rights activists are exposed in addition to the prosecutions, imprisonments and police harassment that come directly from the state. Relentless prosecutions coupled with 86 Human Rights Watch, Violations of Free Expression in Turkey, ‘Human Rights Watch Publications’, New York, February, 1999, Chapter VI., , last visited June 2004. 87 Ibid. 88 Lawyers Committee for Human Rights and the Crowley Program in International Human Rights, Reformun Onundeki Engeller: Turkiye’de Olaganustu Yargi, Polisin Dokunulmazligi ve Insan Haklari Savunucularina Yonelik Saldirilar (Obstacles to Reform: Exceptional Courts, Police Impunity, and Persecution of Human Rights Defenders in Turkey) (Belge Publishing: Istanbul, 1999) at 147. 89 In an interview with a delegation of the Lawyers Committee for Human Rights and the Crowley Program in International Human Rights in 1998, the Head of the Foreign Relations Committee of the Ankara Bar Association stated: ‘Those lawyers and activists who face harassment are members of terrorist organizations. Turkey has to defend its existence right now and under these circumstances, maintaining normality is difficult. We do, from time to time witness events we are regretful for, however, our first and foremost aim is to fight against the threat to our territorial integrity and national unity.’ For more detail see Lawyers Committee for Human Rights and the Crowley Program in International Human Rights, Reformun Onundeki Engeller: Turkiye’de Olaganustu Yargi, Polisin Dokunulmazligi ve Insan Haklari Savunucularina Yonelik Saldirilar (Obstacles to Reform: Exceptional Courts, Police Impunity, and Persecution of Human Rights Defenders in Turkey), supra note 88.

Secure State, Insecure People 205 __________________________________________________________________ media campaigns make human rights activists vulnerable to threats of violence by illegal groups or organizations. By linking them to terrorist groups, the state creates a climate of violence and fails to provide a secure environment for the human rights activists.

Violations of the Freedom of Association and Assembly Pressure on Associations Article 54 of the Law of Associations allows local administration to close down human rights associations for security reasons for an unspecified period of time. These kinds of closings have been a common practice especially in the southeast of Turkey. In 1997, the Diyarbakir Branch of the Human Rights Association was shut down, and its members were warned against attempts to try to reopen it. The members of the management of the association were taken into custody for 36 hours. The Mayor of the Region of Emergency issued a written statement to close the Diyarbakir branch for an unspecified period of time based on violation of Article 54 of the Law of Associations. His statement indicated that the activities of the organization damaged the unity of the nation, threatened the rights of others, and obstructed justice. The case was taken to the Higher Court of Appeals and throughout this process the branch remained closed for two years.90 Diyarbakir case is hardly unique. The government does not hesitate to use its extended powers to shut down human rights organizations in various locations for long periods of time. In 1997, seven branches of the Human Rights Association were closed down for four months, as were six other branches for periods ranging from two weeks to six months. 91 During the same period, other human rights organizations were also subject to closings or other kinds of pressure. The offices of Mazlum-Der, a human rights NGO advocating freedom of religion, have been unlawfully searched many times and their work has been interrupted in different ways.92 The closing of human rights organizations and other kinds of pressure Lawyers Committee for Human Rights and the Crowley Program in International Human Rights, Reformun Onundeki Engeller: Turkiye’de Olaganustu Yargi, Polisin Dokunulmazligi ve Insan Haklari Savunucularina Yonelik Saldirilar (Obstacles to Reform: Exceptional Courts, Police Impunity, and Persecution of Human Rights Defenders in Turkey), supra note 88, at 150-151. 91 Ibid., at 151-152. 92 The government also put pressure on the members of Mazlum-Der. There were eight prosecutions against Sehmus Ulek, the director of the Sanliurfa branch, six of which were under the Law of Associations, one under Article 312 of the Penal Code (inciting hatred toward religion) and one under Article 158 of the Penal Code (disrespect to security forces). Similar prosecutions were ongoing towards members of other branches of the organization. For more, see Lawyers Committee for Human Rights and the Crowley Program in International Human Rights, Reformun Onundeki Engeller: 90

Finnish Yearbook of International Law (Vol. XV, 2004) 206 __________________________________________________________________ interfering with their work not only violates the freedom of expression and freedom of association of its members but also impedes the work of the organizations, thereby leaving the people in the regions where they operate deprived of mechanisms to fight for their rights. Restrictions on Demonstrations Law 2911 on Assembly and Demonstrations requires that demonstrators obtain authorization from local governors, who frequently prohibit them. Even with authorization, Turkish citizens who wish to demonstrate publicly often risk arrest and beating. In the mid- to late 1990s, many families of victims of ‘disappearances’ faced the brute force of the government during demonstrations for a campaign against disappearances started by the Human Rights Association. Police broke up peaceful sit-down protests and detained people who were then beaten, dragged along the ground and tortured while held in overnight custody.93 In the late 1990s and early 2000s, the only substantive change was the purpose of public demonstrations. The repressive attitudes of the law and police toward peaceful demonstrations remained the same. Repeatedly, in 1999, 2000, and 2001, various NGOs and human rights organization were exposed to severe pressure in connection with activities concerning Newroz celebrations, 8 th of March World Women's Day, 1st of May, and World Peace Day, 1st of September. In 2000, demonstrations all over the country for World Peace Day were prohibited and investigations were launched against those asking for permission to demonstrate and those who made their announcements in Kurdish. Press releases over all Turkey were hindered by force, hundreds of people were detained and hundreds more injured during confrontations with the police who tried to interfere with peaceful demonstrations.94 The number of prosecutions of ‘thought crimes’, book and periodical confiscations and violence against journalists and human rights defenders throughout the mid-1980s and 1990s was unparalleled in any pluralistic democracy. When it came to freedom of expression, the suppressive regime of post-military rule of 1980-1983 continued in practice. The Constitution had prepared the groundwork and was supplemented by various laws to keep in constant check and punish any Turkiye’de Olaganustu Yargi, Polisin Dokunulmazligi ve Insan Haklari Savunucularina Yonelik Saldirilar (Obstacles to Reform: Exceptional Courts, Police Impunity, and Persecution of Human Rights Defenders in Turkey), supra note 88, at 153. 93 Amnesty International Report, No Security Without Human Rights, 1996. <www.amnesty.org/ ailib/intcam/turkey/turkfoc.htm>, last visited June 2004. 94 Human Rights Foundation of Turkey, Human Rights Report, Turkey, 2000. See <www.tihv.org.tr/ eindex.html>, last visited June 2004.

Secure State, Insecure People 207 __________________________________________________________________ ‘thought’ perceived as a threat against the unity and security of the state. The judiciary, with its idiosyncratic ways of interpreting the law, did not do much in the way of contributing to a democratic case law in accordance with the European Court of Human Rights jurisprudence. The occasional reforms in this period were often cosmetic changes and fell short of real change. Often, although by no means exclusively, it happened to be the pro-Kurdish and Islamist press and journalists and writers who have been targeted, as those two were seen as the biggest threats to the nation’s security. In the case of the former, the armed conflict between the security forces and PKK, and ‘countering the terrorist threat’ has been used as a pretext to imprison, torture, or eliminate by extrajudicial execution and ‘disappearances’ the political opponents of the state. The punitive attitude toward criticism of the state is directly at odds with the essence of the freedom of expression, which, as repeatedly stated by the ECtHR, is ‘applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb’.95 In Turkey, the state has controlled all reporting on issues of ‘sensitivity’ and prosecutions leading to imprisonment have been the preferred legal method. Journalists, academicians, intellectuals have to live with this constant threat hanging over them. In an environment of such close scrutiny, it can hardly be expected that they can adequately fulfil the crucial role that they play in creating open debate and questioning established norms. The 1990s saw the emergence of new, illegal methods of control and violation: disappearances and extra-judicial executions. Throughout the period discussed in this section, Turkish citizens could be arbitrarily detained; torture remained a standard method of interrogation; and disappearances or political killings claimed hundreds of victims. The exercise of the basic right to free expression has been one of the most common reasons for the detentions, imprisonment, torture, disappearances and extra-judicial executions. The result is that in the name of ‘national security’, everyone in Turkey has been deprived not only of the freedom to express their opinions and an environment of open public debate for change, but also of true personal security from violations by state forces for having exercised their right to freedom of expression.

95

See among many Handyside vs. the UK, ECHR (1976), Series A, No. 24, at 23, para. 49.

Finnish Yearbook of International Law (Vol. XV, 2004) 208 __________________________________________________________________

State of Freedom of Expression in Light of Reforms Background At the 1999 European Union (EU) Helsinki Summit, the EU Heads of State and Government declared Turkey a candidate to join the Union on the basis of the same criteria as applied to other candidates. 96 Since then, Turkey has started a reform process through constitutional amendments and the passing of ‘harmonization packages’97 to fulfil the EU’s Copenhagen Criteria,98 which are precondition to the beginning of accession negotiations with the Union. The harmonization packages targeted changing legislation not in line with EU standards in such areas as freedom of speech, freedom of assembly or gender equality. Lifting all the restrictions to ‘freedom of thought’ was the priority for the short-term political criteria. The other external influence on legislative reforms has been the judgments of the European Court of Human Rights (ECtHR). While Turkey notoriously fails to comply with the Court’s judgments, there are a few cases where multiple consistent rulings by the Court on the same issue involving a particular piece of legislation have served as a catalyst for change, opening up a formally taboo area for more open parliamentary and public discussion and crucial legislative reform. After discussing the constitutional amendments and the harmonization packages, I will elaborate on two specific changes, which could be said to have resulted directly from the Court’s judgment: abolishing of the State Security Courts and the repeal of Article 8 of the Anti-Terror Law.

Presidency Conclusions, Helsinki European Council, 10-11 December 1999, Nr: 00300/1/99, paragraph 12. See <www.ue.eu.int/ueDocs/cms_Data/docs/pressData/en/ec/ACFA4C.htm>, last visited July 2005. 97 During the reform process, a ‘harmonization package’ came to be the term of reference for a draft law consisting of a series of amendments to different laws, designed to amend more than one code or law at a time, and which was approved or rejected in a single voting session in the Parliament. 98 The political criteria for accession to be met by the candidate countries, as laid down by the Copenhagen European Council in June 1993, stipulate that these countries must have achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities. Presidency Conclusions, Copenhagen European Council, 21-22 June 1993, Nr: 180/1/93. See <www.ue.eu.int/ueDocs/cms_Data/docs/pressData/en/ec/72921.pdf>, last visited July 2005. 96

Secure State, Insecure People 209 __________________________________________________________________

Constitutional Amendments On 3 October 2001, the Turkish Parliament approved a comprehensive package of amendments, changing more than twenty percent of the 177 articles of the Constitution.99 One of the major impediments to freedom of thought was embodied in the Preamble of the Constitution in the form of depriving ‘thoughts’ not in line with the Turkish national interests of constitutional protection. This statement was the subject of much discussion as it stood in sharp contradiction to the principle of freedom of thought. After long debates in the Parliament, the wording was changed to read ‘no protection shall be accorded to an ‘activity’ contrary to Turkish national interests, the principle of the indivisibility of the existence of Turkey with its state and territory, Turkish historical and moral values or the nationalism, principles, reforms and modernism of Ataturk….’ 100 Even though this is a step forward, it is still a long way from the Preamble of a constitution that truly protects fundamental rights and freedoms. Perhaps the most radical change was with regard to the general restriction of fundamental rights and freedoms. Here the Parliament went much farther and removed the general restriction clause, emphasizing the importance of ‘not infringing upon the essence of the right’ and ensuring that the restrictions are ‘in line with the letter and spirit of the Constitution and the requirements of the democratic order of the society’. Restrictions are now allowed, ‘only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution’. 101 As such, fundamental rights and freedoms that by their very nature should not be restricted in any way – such as the freedom of thought and conscience – can no longer be subject to the general restriction clause. Concerning the right to freedom of expression and thought, unfortunately, the same progressive approach is lacking. In fact, Article 26 became even more restrictive by allowing for limiting freedom of expression and dissemination of thought for additional purposes of ‘protecting national security, public order and public safety, the basic characteristics of the Republic and safeguarding the indivisible integrity of the State with its territory and nation’, while leaving in place such purposes as ‘preventing crime’. The additional grounds for restriction reinforce the practice of depriving of constitutional protection those thoughts that are not in Republic of Turkey, Ministry of Foreign Affairs, Secretariat General for EU Affairs, Political Reforms in Turkey, at 2. 100 Preamble of the Constitution of the Turkish Republic as amended on 3 October 2001, Law No: 4709. Emphasis added. 101 Article 13 of the Constitution of the Turkish Republic as amended on 3 October 2001, Law No: 4709. 99

Finnish Yearbook of International Law (Vol. XV, 2004) 210 __________________________________________________________________ line with the ‘basic characteristics of the Republic’. The positive aspect of the change was the repeal of Paragraph 3 of the Article, which prohibited expression and dissemination of thought in any language prohibited by law.102 Restrictions on the freedom of science and the arts were left untouched, essentially prohibiting open discussion and criticism of Articles 1, 2 and 3 of the Constitution and regulating by law the entry and distribution of foreign publications in the country. 103 Both of these clauses impose limitations on scientific assessment and criticism of certain established concepts and principles. Similarly Article 28, concerning freedom of the press, has essentially been left unchanged other than repealing the prohibition of publications in languages prohibited by law. This article, with its long paragraphs of restrictions for the usual purposes of the ‘security of the State’ and ‘the indivisible integrity of the State with its territory and nation’ now include new prohibitions such as ‘inciting offence, riot or insurrection,’ and remains one of the major blocks to a free press. In the area of freedom of association and assembly some prohibitions were eased, however Articles 33 and 34 remained essentially the same. They continue to restrict the right to form associations or hold meetings and demonstration marches on the familiar grounds of protection of national security, public order, public health and public morals; prevention of crime commitment; or, (in a touch of official irony) for the protection of the rights and freedoms of others. An overall assessment in terms of constitutional changes in the areas of freedom of expression, association and assembly presents a mixed picture. Despite some easing of restrictions, in essence, the fundamental barriers to these freedoms remain. The most substantial change and the significant achievement is the removal of the general restriction clause from Article 13; however, the individual rights and freedoms still provide a great deal of space for oppressive practices. Provisions of the Constitution concerning the civil-military balance of power also underwent changes, however, with a few exceptions that have come into force very recently, the changes in 2001 did not substantially alter the problematic aspects brought forth earlier. The major change with regard to civil-military balance of power was in the composition of the National Security Council (NSC) and the wording of its role. The Minister of Justice and the Deputy Prime Ministers are added to the Council making its composition more civilian.104 The word ‘advisory’ is added to the decisions it will submit to the Council of Ministers. The Council of In 1991, the Law on Publication in Languages Other Than Turkish was already repealed restoring the freedom of press and publication in every language. So in effect, this provision of the Constitution, together with Article 28.2, was in practice not applicable and had to be changed for consistency. 103 See supra note 54. 104 Article 118, Paragraph 1 of the Constitution of the Turkish Republic as amended on 3 rd of October 2001. 102

Secure State, Insecure People 211 __________________________________________________________________ Ministers will ‘evaluate’ as opposed to ‘give priority consideration to’ the decisions of the NSC. 105 The question still remains whether these changes are significant enough to actually change the power of the NSC in practice. Until the 1982 Constitution, the composition of the Council was rather balanced between civil and military, but in practice, despite the fact that decisions were taken by majority, the opinions of its military members carried greater weight. Additionally, the way the Council’s powers have been worded ‘technically’ never really indicated legally binding powers over the government, however in practice, it has always been a very strong institution with the ability to sanction in cases of non-compliance with its decisions. Unless there is a fundamental shift in the underlying attitude of the military concerning its role in Turkey, there is little reason to expect these amendments to bring about real change in practice. Furthermore, the views that the NSC will submit to the Council of Ministers still cover a very broad range from the preservation of the existence and independence of the State to the integrity and indivisibility of the country and the peace and security of society.106 On 7 May 2004, the Parliament approved another package of amendments, which contained a crucial reform concerning independence of the judiciary and the advancement of human rights in Turkey in general. State Security Courts, which have been the topic of many contentious arguments in terms of independence of the judiciary and fair trials for the nearly thirty years they have been established, were abolished. As overdue and absolutely crucial as this change was, it is also worth mentioning that soon after the law went into effect, the Parliament started working on a draft proposal for establishing ‘Specialized Courts for Dealing With Organized Crime,’ whose jurisdiction would cover the same areas as those of the State Security Courts.107 The developments on that proposal remain to be seen. Taken as a whole, although some progress has been achieved in easing the restrictions on some fundamental rights and freedoms, close analysis reveals that the constitutional amendments have also included changes aimed at preserving the status quo and in some cases even strengthening the basis for restrictions in the name of national security. Hence, the overall philosophy and structure seem to have remained intact.

Article 118, Paragraph 3 of the Constitution of the Turkish Republic as amended on 3 rd of October 2001. 106 Article 118, Paragraph 3 of the Constitution of the Turkish Republic. 107 Mustafa Erdogan, ‘Bir Ileri Bir Geri: DGM Ornegi (One Step Ahead, One Step Back: The Case of State Security Courts)’, in Liberal Dusunce Toplulugu (Association of Liberal Thought), 27 May 2004. See <www.liberal-dt.org.tr>, last visited June 2004. 105

Finnish Yearbook of International Law (Vol. XV, 2004) 212 __________________________________________________________________

Harmonization Packages Following the constitutional amendments, Turkey engaged in an intensive reform program to bring national legislation into alignment with the Constitution. The first three harmonization packages were passed in February, April, and August 2002, before the December 2002 Copenhagen Summit deadline. At that summit, the EU postponed a decision to open accession negotiations 108 until the EU summit in December 2004109. In 2003, four more harmonization packages were passed. Legislation Concerning Freedom of Expression With the first harmonization package, which entered into force on 19 February 2002, an amendment to Article 159 of the Penal Code reduced from 6 years to 3 years the upper limit of sentences for persons who ‘openly insult the state and state institutions and threaten the indivisible unity of the Turkish Republic’, and abolished the fines imposed for criticising Turkish laws. However, the actual definition of the offence remained the same. With the third package of 9 August 2002, the scope of the provision was further amended to punish those expressions intended to ‘insult’ and ‘deride’ these institutions and exempted from punishment those solely intended to criticize.110 The notion of ‘intention’ is open to interpretation and the assessment of the full impact of this amendment will depend on practice. 111 The seventh package narrowed the scope of Article 169 of the Penal Code (‘third parties aiding and abetting terrorist organizations’) by removing the abstract and ambiguous provision sanctioning ‘actions which facilitated the operation of terrorist organizations in any manner whatsoever’. Even though some ambiguity has been removed, this change is not sufficient to preclude its use for the restriction of the freedom of expression. The fines stipulated for praise of a criminal act, calls to disobey the law or incitement to hatred on lines of class, race, religion, sect or territory, under 312.1 have been abolished. Incitement to enmity and hatred Presidency Conclusions, Copenhagen European Council, 12-13 December 2002, Nr: 15917/02, paragraph 19. See <www.ue.eu.int/ueDocs/cms_Data/docs/pressData/en/ec/73842.pdf>, last visited July 2005. 109 At the Brussels Council Meeting in December 2004, the Council decided that Turkey sufficiently fulfills the Copenhagen criteria to open accession negotiations on 3 October 2005. Presidency Conclusions, Brussels European Council, 16-17 December 2004, Nr: 16238/1/04 REV1, paragraph 22. See <www.ue.eu.int/ueDocs/cms_Data/docs/pressData/en/ec/83201.pdf>, last visited July 2005. 110 Republic of Turkey, Ministry of Foreign Affairs, Secretariat General for EU Affairs, Political Reforms in Turkey, at 5. 111 Commission of the European Communities, 2002 Regular Report on Turkey’s Progress Towards Accession, Brussels, 9 October, 2002, SEC(2002) 1412, at 32. See <www.euoffice.metu.edu.tr/abouteu/ 2002regrep.pdf>, last visited June 2004. 108

Secure State, Insecure People 213 __________________________________________________________________ under Article 312.2 is now punishable only if done in a manner that may be dangerous to public order and the sentence of this offence has been reduced.112 With an amendment to Article 1 of the Anti-Terror Law, ‘use of force or violence’ was added as a prerequisite in the definition of the crime of terrorism. The amendment also specified that only acts ‘constituting a crime’ are included in the definition of terrorism. Article 7 was amended to restrict the context in which propaganda could be prosecuted as a criminal offence to those situations where propaganda occurred ‘in connection with the (terrorist) organization in a way that encourages the use of terrorist methods.’ 113 The seventh package replaced ‘terrorist methods’ with ‘resorting to violence or other terrorist means.’ The amendment narrowed the scope of the Article, however, fines for the newly defined offences were increased ten-fold, and the length of prison sentences was increased to one to five years.114 The most important change in the Anti-Terror Law was the repealing of Article 8, which had been the basis for numerous prosecutions for ‘separatist propaganda against the indivisibility of the state.’ The second harmonization package changed little in the Press Law to ease restrictions on the freedom of the press. The maximum suspensions for a publishing company found guilty of such offences have been shortened, as has the maximum length of imprisonment for those who continue to publish suspended periodicals.115 However, the package introduced the possibility of confiscating the printing equipment of publications found to be acting against the basic principles of the ‘integrity of the nation, republican order, or the country’s national security.’ 116 The third harmonization package further modified the Press Law by replacing prison sentences with heavy fines for crimes related to the press. The high level of the newly introduced fines (ranging from TL one billion to a TL 100 billion – 550 to 55.000 Euros) prompted President Sezer to ask the Constitutional Court to abrogate these amendments, as he found the amount of fines disproportionate and against the constitutional principles of freedom of the press and dissemination of 112 Amnesty International Report, Turkey: Briefing on present state of human rights development during the preaccession process, 1 September 2002, AI Index: EUR 44/041/2002. See <www.web.amnesty.org/ library/print/ENGEUR440412002>, last visited June 2004. 113 Travaux préparatoires of the Turkish Grand National Assembly of the Legislative Proposal No:4744, known as the first harmonization package, 19th February 2002. 114 Commission of the European Communities, 2003 Regular Report on Turkey’s Progress Towards Accession, Brussels, 9 October, 2002, SEC(2002) 1412, at 30. See <www.europa.eu.int/comm/enlargement/ report_2003/pdf/rr_tk_final.pdf>, last visited June 2004. 115 Amendment to Supplementary Article 2 of the Press Law, travaux préparatoires of the Turkish Grand National Assembly, Law No: 4748, entered into force on 9th April 2002. 116 Commission of the European Communities, 2002 Regular Report on Turkey’s Progress Towards Accession, Brussels, 9 October, 2002, SEC(2002) 1412, at 33. See <www.euoffice.metu.edu.tr/abouteu/ 2002regrep.pdf>, last visited June 2004.

Finnish Yearbook of International Law (Vol. XV, 2004) 214 __________________________________________________________________ thought.117 In the field of broadcasting, with the repealing of Article 8 of the AntiTerror Law in the sixth harmonization package in July 2003, at least one basis for closing radio and television stations was removed. However, the High Audio-Visual Board Law continued to restrict broadcasting that contradicts the fundamental principles of the Turkish Republic and the indivisible integrity of the State. The law continued to impose heavy penalties (including the suspension or cancellation of the broadcasting licence) upon private radio and television stations accused of violating certain principles of the state relating, for instance, to separatist propaganda or incitement to hatred. In the third package in August 2002, Article 4 of the High Audio-Visual Board Law was amended to lift the restrictions on broadcasting in the different languages and dialects used traditionally by Turkish citizens in their daily lives.118 A Regulation on the Language of Radio and TV Broadcasts was issued in December 2002 to implement the changes introduced that August. The Regulation draws strict boundaries on the timing, content, and style of broadcasting. It states that broadcasting in these languages may take place only four hours per week on radio and two hours per week on television and these programmes can only be aimed at adults on the subjects of news, culture and music. In addition, broadcasts cannot contravene ‘the fundamental characteristics of the Republic enshrined in the Constitution and the indivisible integrity of the state with its territory and nation.’ Such wording can be – and has been in the past – used to penalize non-violent statements on the Kurdish issue or the role of Islam in politics and society. 119 The Regulation also requires that the radio programme must be followed by a complete Turkish translation; that television broadcasts must have subtitles in Turkish; and that individuals in television broadcasts must wear modern clothes. 120 However, due to legal reasons related to the autonomous status of Turkish Radio and Television (TRT), the Regulation could not be implemented. As a result, in the sixth reform package, a legislative amendment was introduced extending the possibility of broadcasting in languages and dialects used by Turkish citizens in their daily lives to private stations, in addition to the TRT.

Ibid. Republic of Turkey, Ministry of Foreign Affairs, Secretariat General for EU Affairs, Political Reforms in Turkey, at 6. 119 Amnesty International Report, Turkey: Briefing on present state of human rights development during the preaccession process, 1 September 2002, AI Index: EUR 44/041/2002. See <www.web.amnesty.org/ library/print/ENGEUR440412002>, last visited June 2004. 120 Commission of the European Communities, 2003 Regular Report on Turkey’s Progress Towards Accession, Brussels, 9 October, 2002, SEC(2002) 1412, at 31. See <www.europa.eu.int/comm/enlargement/ report_2003/pdf/rr_tk_final.pdf>, last visited June 2004. 117 118

Secure State, Insecure People 215 __________________________________________________________________ Overall, other than the repeal of Article 8 of the Anti-Terror Law and the lifting of language restrictions on broadcasting, the provisions that have been used for prosecutions of ‘thought crimes’ have not been substantially altered. Article 159, in its amended form, criminalizes non-violent statements deemed to be made with the intention to ‘insult or deride’ the state and state institutions. The Organization for Security and Cooperation in Europe (OSCE) has expressed the view that libel should not be criminalized and that libel laws should be a part of civil law.121 The Johannesburg Principles on National Security, Freedom of Expression and Access to Information state in Principle 7a(ii) that: ‘Expression which shall not constitute a threat to national security includes expression that constitutes criticism of, or insult to, the nation, the state or its symbols, the government, its agencies, or public officials.’ It states in Principle 7b that, ‘No one may be punished for criticising or insulting any of the above.’122 Similarly, Article 169 still leaves vast room for the interpretation of what constitutes ‘aiding and abetting terrorist organizations.’ Even in its amended form it deems people guilty, not on the basis of what they have done, but on the basis of the groups with which they are associated. The wording of Article 312.2 remained too broad, allowing the courts to continue to interpret the article in a way, which would punish non-violent expressions as incitement to hatred. Furthermore, no changes were made to two Articles of the Penal Code that have been widely used, namely Article 155 and 311. ‘Undermining the institution of military service’ can still bring one-to-two years in prison under Article 155. ‘Incitement of the public to commit an offence’ is still a punishable offence under Article 311, without any clarity on what constitutes incitement, and regardless of intent or methods used. Legislation Concerning Freedom of Association and Assembly The Law on the Establishment of Associations was amended to restrict the grounds for banning an association, and the previous justification of there being a probability of it committing a crime was removed. All references to languages banned by the law were deleted. In addition, Articles 7, 11 and 12, which regulate relations with international organizations, were removed from the amended Law thereby lifting restrictions on contacts with foreign counterparts. However, restrictions of a similar nature had been introduced into the Civil Code of January 2002, thus maintaining

From Paper To Practice: Making Change Real, Memorandum to the Turkish Prime Minister on the occasion of the visit to Turkey of a delegation led by Irene Khan, Amnesty International’s Secretary General, February 2004, AI Index: EUR 44/001/2004, 12 February 2004. 122 Mendel, Toby, National Security vs. Openness, supra note 63, at 14. <www.campbellinstitute.org>, last visited June 2004. 121

Finnish Yearbook of International Law (Vol. XV, 2004) 216 __________________________________________________________________ the possibility for the authorities of exerting control over relations with international organizations.123 With the third harmonization package, a number of restrictions on the scope of associations’ activities have been removed. These relate mainly to limitations imposed on civil servants on their right to establish associations and to the ban on associations’ activities for civil defence purposes. In August 2003, amendments included in the seventh package eased the restrictions on the establishment of associations by people convicted of certain crimes, and for those who had previously been members of an association or political party closed down by a court decision. Article 38 was amended to allow higher education students to establish associations that not only relate to educational and recreational matters, but also to art, culture, and science.124 Despite some positive changes, significant limitations remain, including the restriction imposed by Article 5 of the Law on Associations which prohibits founding any association with goals ‘contrary to...national security and public order and general health and morals, the creation of a minority in the Turkish Republic on the basis of race, religion, sect and regional difference and the division of the unitary state structure of the Turkish Republic; or the denigrating or belittlement of the personality, principles, works or memories of Atatürk’. Article 37 forbids the development of activities with these goals by an association.125 Furthermore, the general restrictive nature of the Law on Associations has been maintained, including a cumbersome prior authorization system to found an association. According to the EU Progress Report 2003, ‘changes did not lead to the adoption of a clear framework addressing the main problems faced by associations.’126 The second harmonization package introduced amendments to the Law on Public Meetings and Demonstration Marches, notably deleting Article 21, thereby extending to public organizations the right to hold meetings and demonstrations. With the third package further changes were introduced somewhat easing the procedures regulating active participation by foreigners in gatherings by replacing the requirement for authorization by an advance 48 hours notification. Similarly, Commission of the European Communities, 2002 Regular Report on Turkey’s Progress Towards Accession, Brussels, 9 October, 2002, SEC(2002) 1412, at 35. See <www.euoffice.metu.edu.tr/abouteu/ 2002regrep.pdf>, last visited June 2004. 124 Republic of Turkey, Ministry of Foreign Affairs, Secretariat General for EU Affairs, Political Reforms in Turkey, at 12. 125 Article 76 lays down terms of imprisonment of between one and three years and a fine and the possible closure of the association in question for those who establish an organization with goals stated in Article 5 or who carry out activities listed in Article 37 or act in contradiction with the official goals of the association. 126 Commission of the European Communities, 2003 Regular Report on Turkey’s Progress Towards Accession, Brussels, 9 October, 2002, SEC(2002) 1412, at 32. 123

Secure State, Insecure People 217 __________________________________________________________________ the general notification period for meetings to be held has been reduced from 72 hours to 48 hours. However, the law retains its restrictive character and still includes the requirement of the signing of the notification by every member of the organising committee, accompanied by the identities, occupations, permanent address and, where applicable, workplaces of the members and chairperson of the organizing committee. The seventh reform package introduced amendments that limit the ability of Governors to postpone meetings. Meetings can be banned only in cases where there is a ‘clear and imminent threat of a criminal offence being committed.’ Official figures indicate that in 2002, 95 demonstrations were prohibited or postponed, as compared to 141 in 2001. Despite the changes, the authorities still have considerable discretionary powers in authorising meetings and demonstrations. In practice significant obstacles to the holding of marches and demonstrations remain. Other Legislation That Impacts Freedom of Expression One of the most significant legal reforms enacted with the third package on 9 August 2002 that concerns all the fundamental rights and freedoms was the introduction of provisions allowing for retrial in the event of convictions, both in civil and criminal cases that have been found contrary to the ECHR. 127 The jurisprudence of the Court became directly applicable to the legal system, reinforcing the opportunities to redress the consequences of human rights violations by paving the way for reopening impugned proceedings. One limitation is that these new provisions will only apply to decisions taken pursuant to applications made to the ECtHR after August 2003.128 In the area of civil-military relations, a number of fundamental changes have been made to the legal framework of the National Security Council (NSC). The advisory nature of the NSC was confirmed in a law implementing the amendment of October 2001 relating to Article 118 of the Constitution. 129 In an amendment to the Law on the National Security Council the provision that ‘the NSC will report to the Council of Ministers the views it has reached and its suggestions’, has been repealed. The representative of the NSC in the Supervision Board of Cinema, Video and Music has been removed by an amendment to the relevant law. However, a representative of the National Security Council remains on other civilian boards such as the High Audio-Visual Board and the High- Education Board. Amendments to Articles 445 and 448 of the Code of Civil Procedure and Articles 327 and 335 of the Code of Penal Procedure. 128 Commission of the European Communities, 2002 Regular Report on Turkey’s Progress Towards Accession, Brussels, 9 October, 2002, SEC(2002) 1412, at 22. 129 See supra notes 104-106. 127

Finnish Yearbook of International Law (Vol. XV, 2004) 218 __________________________________________________________________ The seventh package, adopted in July 2003, introduced fundamental changes to the duties, functioning and composition of the NSC. An amendment to the Law on the National Security Council abolished the extended executive and supervisory powers of the Secretary General of the NSC. In particular, the provision empowering the Secretary General of the NSC to follow up, on behalf of the President and the Prime Minister, the implementation of any recommendation made by the NSC, has been repealed. Other provisions authorizing unlimited access of the NSC to any civilian agency have also been abolished.130 Another amendment provides that the post of Secretary General will no longer be reserved exclusively for a military person. The secretary general will now be appointed upon the proposal of the Prime Minister and the approval of the President, which can allow a civilian to serve in this office. Overall, these amendments could significantly modify the functioning and the role of the NSC if the reforms are effectively implemented.

Case Law of the European Court of Human Rights (ECtHR) State Security Courts As many of the prosecutions regarding freedom of expression in Turkey invoke national security concerns, they are often tried in the State Security Courts. 131 One of the issues that brought many cases before the ECtHR was the question of the independence and impartiality of these courts as they consisted of two civilian judges and one military judge. The leading case where the Court examined the compatibility of the Turkish State Security Courts with the Convention was Incal v. Turkey.132 Mr. Incal, at that time a member of the executive committee of the Izmir section of the People’s Labour Party (“the HEP”), was convicted of participating in the preparation of a leaflet criticising the measures taken by the local authorities, in particular against small-scale illegal trading and the sprawl of squatters’ camps around the city. Even though the leaflets were seized and never distributed, the public prosecutor instituted criminal proceedings in the State Security Court against Mr. Incal and the other eight members of the HEP committee who had taken part in the leaflet’s preparation, accusing them of attempting to incite hatred and hostility through racist words.133 On 9 February 1993 the State Security Court, composed of three judges, Commission of the European Communities, 2002 Regular Report on Turkey’s Progress Towards Accession, Brussels, 9 October, 2002, SEC(2002) 1412, at 19. 131 For the jurisdiction of these courts see supra text accompanying note 41. 132 Incal v. Turkey, ECHR (1998), No. 41/1997/825/1031. 133 Paras 11, 12 and 13. 130

Secure State, Insecure People 219 __________________________________________________________________ one of whom was a member of the Military Legal Service, found the applicant guilty of the offences charged and sentenced him to six months and twenty days imprisonment and a fine of 55,555 Turkish Liras (30 Euros). It also ordered the confiscation of the leaflets. Mr Incal applied to the Commission asserting that he had not had a fair trial because, considering the presence of the military judge, the State Security Court could not be regarded as an ‘independent and impartial tribunal’ within the meaning of Article 6(1), right to a fair trial. The ECtHR considered those aspects of these judges’ status that could make their independence questionable and given these aspects, decided that the applicant could legitimately fear that because one of the judges of the Izmir State Security Court was a military judge, it might allow itself to be unduly influenced by considerations, which had nothing to do with the nature of the case. 134 In conclusion, the Court expressed the view that the applicant had legitimate cause to doubt the independence and impartiality of the Izmir State Security Court. Accordingly, Article 6(1) had been breached.135 The Court’s finding of a lack of independence in cases tried at State Security Courts in Turkey has been reiterated in later cases.136 The Court’s conclusion from the Incal case that it is understandable that applicants137 should be apprehensive about being tried by a bench which included a regular army officer, who was a member of the Military Legal Service has been repeated in various succeeding cases.138 It was clear that similar cases would be brought before the Court on the First, they are servicemen who are active members of the army, which in turn takes its orders from the executive. Secondly, they remain subject to military discipline and assessment reports are compiled about them by the army for that specific purpose. Decisions pertaining to their appointment are, to a great extent, taken by the administrative authorities and the army. Finally, they have a renewable fouryear term of office on the State Security Court. Incal v. Turkey, ECHR (9 June 1998), No. 22678/93, paragraph 68. 135 Ibid., paras 72 and 73. 136 See Ciraklar v. Turkey, ECHR (1998), No. 70/1997/854/1061; Gerger v. Turkey, ECHR (1999), Application No. 24919/94; Karatas v. Turkey, ECHR (1999), Application No. 23168/94; Baskaya and Okcuoglu v. Turkey, ECHR (1999), Application Nos. 23536/94 and 24408/94; Okcuoglu v. Turkey, ECHR (1999), Application No. 24246/94; Surek and Ozdemir v. Turkey, ECHR (1999), Application Nos. 23927/94 and 24277/94; Surek v. Turkey (No.1), ECHR (1999), Application No. 26682/95; Surek v. Turkey (No.2), ECHR (1999), Application No. 24122/94; Surek v. Turkey (No.3), ECHR (1999), Application No. 24735/94; Surek v. Turkey (No.4), ECHR (1999), Application No. 24762/94. 137 Applicants were prosecuted in a State Security Court, for example, for disclosing the identity of officials involved in the fight against terrorism in Surek v. Turkey (No. 2), or disseminating propaganda aimed at undermining the territorial integrity of the State and national unity in Gerger v. Turkey. 138 See Ciraklar v. Turkey, ECHR (1998), No. 70/1997/854/1061; Gerger v. Turkey, ECHR (1999), Application No. 24919/94; Karatas v. Turkey, ECHR (1999), Application No. 23168/94; Baskaya and Okcuoglu v. Turkey, ECHR (1999), Application Nos. 23536/94 and 24408/94; Okcuoglu v. Turkey, ECHR (1999), Application No. 24246/94; Surek and Ozdemir v. Turkey, ECHR (1999), Application Nos. 23927/94 and 24277/94; Surek v. Turkey (No.1), ECHR (1999), Application No. 26682/95; Surek v. 134

Finnish Yearbook of International Law (Vol. XV, 2004) 220 __________________________________________________________________ same grounds and therefore something had to be done by the Turkish state to avoid repeated violations of the Convention. On 18 June 1999, Turkey's Grand National Assembly amended Article 143 of the Constitution and excluded military members (whether on the bench or in the prosecutor's office) from State Security Courts. Similar amendments were made on 22 June 1999 to the Law on the State Security Courts.139 Removing the military representation on State Security Courts was a big step toward ensuring the independence of these courts, however, their problematic aspects were not limited only to the issue of independence. Many of their other procedures directly or indirectly violated the ECHR. Long detention periods, 140 for example, which is tightly connected to the issue of torture and maltreatment, has long led to convictions. 141 Finally, on 7 May 2004, the State Security Courts were abolished. Clearly, the Court’s consistent rulings regarding these courts have played a crucial role in this fundamental reform. Anti-Terror Law- Article 8 – Separatist Propaganda Another issue that was the cause of repeated legal cases before the Court involved the violation of Article 10 of ECHR, freedom of expression, due to Article 8 of the Anti-Terror Law: separatist propaganda. On 8 July 1999, the Court dealt with several cases concerning Article 8 of the Anti-Terror Law, but also made statements of principle concerning speech crimes in general. A number of judgments involved people who had made statements in books or newspapers and who were apparently convicted simply because they referred to the “Kurdish people” or “Kurdistan” or made other critical remarks about the fundamental values upon which the Turkish state is founded.142 The Court found eleven of the thirteen convictions at question to be in violation of Article 10.143 In its judgments, the Court expressed the view that Turkey (No.2), ECHR (1999), Application No. 24122/94; Surek v. Turkey (No.3), ECHR (1999), Application No. 24735/94; Surek v. Turkey (No.4), ECHR (1999), Application No. 24762/94. 139 The amendments made to Law no. 2845 on the State Security Courts by Law no. 4390 of 22 June 1999 concerning the appointment of the judges and prosecutors. 140 As long as 7 days in cases of offences committed by a group and up to 10 days in emergency regions. 141 For cases in violation of Article 3 of the ECHR (freedom from torture) where long detention periods under State Security Courts have been brought up, see, among many, Demir and Others v. Turkey, ECHR (1998), No. 71/1997/855/1062-1064; Sakik and Others v. Turkey, ECHR (1997), No. 87/1996/706/898-903; Yagci and Sargin v. Turkey, ECHR (1994), No. 6/1994/453/533-534. 142 Iain Cameron, National Security and the European Convention on Human Rights, (Iustus Förlag: Uppsala, 2000), at 388. 143 The Court held that there had been a violation of Article 10 in Ceylan v. Turkey, ECHR (1999), Application No. 23556/94 (16 votes to 1); Arslan v. Turkey, ECHR (1999), Application No. 23462/94 (unanimously); Gerger v. Turkey, ECHR (1999), Application No. 24919/94 (16 votes to 1); Polat v.

Secure State, Insecure People 221 __________________________________________________________________ there is little scope under Article 10(2) of the Convention for restrictions on political speech or on debate on questions of public interest. Moreover, the limits of permissible criticism are wider with regard to the government than in relation to a private citizen or even a politician. In a democratic system the actions or omissions of the government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of public opinion. Furthermore, the dominant position which the government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries.144

In those cases in which applicants were convicted of publishing declarations of terrorist organisations and disseminating separatist propaganda through the medium of the review of which they were the owner or the editor, the Court also evaluated the impugned interferences in the context of the essential role of the press in ensuring the proper functioning of political democracy.145 The Court stated that while the press must not overstep the bounds set, inter alia, for the protection of vital interests of the State such as national security or territorial integrity against the threat of violence or the prevention of disorder or crime, it is nevertheless incumbent on the press to impart information and ideas on political issues, including divisive ones. Not only has the press the task of imparting such information and ideas; the public has a right to receive them. Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders.146

The persistent judgment of the Court on these and related cases involving Article 8 led the Turkish authorities to consider legislative change to this highly contested provision of the Anti-Terror Law. After several minor changes to the Article, it was Turkey, ECHR (1999), Application No. 23500/94 (unanimously); Karatas v. Turkey, ECHR (1999), Application No. 23168/94 (12 votes to 5); Erdogdu and Ince v. Turkey, ECHR (1999), Application Nos. 25067/94 and 25068/94 (unanimously); Baskaya and Okcuoglu v. Turkey, ECHR (1999), Application Nos. 23536/94 and 24408/94 (unanimously); Okcuoglu v. Turkey, ECHR (1999), Application No. 24246/94 (unanimously); Surek and Ozdemir v. Turkey, ECHR (1999), Application Nos. 23927/94 and 24277/94 (11 votes to 6); Surek v. Turkey (No.2), ECHR (1999), Application No. 24122/94 (16 votes to1); Surek v. Turkey (No.4), ECHR (1999), Application No. 24762/94 (16 votes to1). It found no violation of Article 10 in the cases of Surek v. Turkey (No.1), ECHR(1999), Application No. 26682/95 (11 votes to 6); Surek v. Turkey (No.3), ECHR (1999), Application No. 24735/94 (10 votes to 7). 144 Surek and Ozdemir v. Turkey, ECHR (1999), Application No. 23927/94 and 24277/94, para. 60. 145 See, among many other authorities, the Lingens v. Austria, ECHR (1986), Series A, No. 103, at 26, paras 41-42; and the Fressoz and Roire judgment, Application No: 29183/95, 21 January 1999, paragraph 45. 146 Surek and Ozdemir v. Turkey, ECHR (8 July 1999), Application No. 23927/94, paragraph 58.

Finnish Yearbook of International Law (Vol. XV, 2004) 222 __________________________________________________________________ finally repealed on 15 July 2003 with Law No: 4928, known as the sixth ‘harmonization package.’ Despite the overall positive impact, it is important to mention that there have been a number of cases where it seems that the Court may have granted too wide a margin of appreciation to the Turkish state. The leading example is Zana v. Turkey147. Zana, a former mayor of Diyarbakir, had said in an interview with journalists while in prison: ‘I support the PKK national liberation movement; on the other hand, I am not in favour of massacres. Anyone can make mistakes, and the PKK kill women and children by mistake…’ That statement was published in the national daily newspaper Cumhuriyet on 30 August 1987. Zana was convicted and received a twelve-month sentence, of which he served two months. The majority of the ECtHR (12:8) considered that, bearing in mind the state’s margin of appreciation, the interference in issue was proportionate to the legitimate aims pursued and there had consequently been no breach of Article 10 of the Convention. The context of the statement was a number of murders of civilians, which had recently been committed by the PKK. The majority considered that in the context at the time the statement was made, the support given to the PKK – described as a ‘national liberation movement’ – by the former mayor of Diyarbakir, the most important city in south-east Turkey, in an interview published in a major national daily newspaper, had to be regarded as likely to exacerbate an already explosive situation in that region.

The Court accordingly considered that the penalty imposed on the applicant could reasonably be regarded as answering a ‘pressing social need’ and that the reasons adduced by the national authorities are ‘relevant and sufficient’.148 As Cameron argues, the judgment in Zana v. Turkey shows that it is possible to have crimes, which, in effect, simply punish the defence, or justification, of acts of violence, particularly acts of terrorism.149 A similar point was also brought up by the dissenting judges. In his dissenting opinion, Judge Thór Vilhjálmsson questioned the threat posed to national security by the applicant’s statements: ‘The plain meaning of these words is that the applicant has the same opinion as the PKK on the question of the status of the territory where Kurds live in Turkey but he disapproves of the methods used by this organisation. I have to believe that this public statement is in breach of Turkish law. However, I do not see how these words, published in a

Zana v. Turkey, ECHR (1997), No. 69/1996/688/880. Paras 60-61. 149 Cameron, National Security and the European Convention on Human Rights, supra note 142, at 393. 147 148

Secure State, Insecure People 223 __________________________________________________________________ newspaper in Istanbul, can be taken as a danger to national security or public safety or territorial integrity, let alone that they endorse criminal activities.’150 It seems that the Court does not uniformly apply a ‘clear and present danger 151 test’ in all cases. Especially in those cases involving states with laws designed to protect the state, rather than an ethnic or other minority, from violence, as Cameron argues, the correct approach would seem to be to require some evidence that the words spoken or written would probably incite imminent violence.152 Taking into account the tendency of the Turkish state to apply a very broad definition to what constitutes a crime against the state’s security, such judgments, even if rare, could unfortunately be used to justify state practices.

Practice – What Has Changed Since the Harmonization Packages? Although it is too early to pass final judgment on the effect of legislative reforms, some preliminary trends can already be observed. On the positive side, the lifting of a number of restrictions on freedom of thought, notably Article 8 of the AntiTerror Law has led both to acquittals and the release of a number of prisoners sentenced for the non-violent expression of opinion. Removal of restrictions on broadcasting and education in minority languages is another significant achievement. In 2004, regulatory obstructions have been overcome and private channels have started broadcasting Kurdish language programs. Furthermore, as a result of the new law on retrial, four former Democracy Party (DEP) deputies – Leyla Zana, Hatip Dicle, Orhan Dogan and Selim Sadak – attended the first hearing of their retrial on 28 March 2003. Imprisoned since 1994, these four prisoners of conscience were punished for their non-violent political activities relating to the Kurdish question, and, according to an ECtHR ruling, had been found not to have received a fair trial in 1994.153 In April 2004, the Ankara Security Court upheld the decision, which was subsequently overturned by the appeal court and led to their final release in June 2004.154 As far as implementation of the legislative changes is concerned, case law points to little consistency. Some cases have resulted in acquittal, while other, similar cases have resulted in heavy sentences. There is a certain sense of arbitrariness that 150 Dissenting opinion of Judge Thór Vilhjálmsson, Zana v. Turkey, ECHR (1997), No. 69/1996/688/880. 151 The famous words of Justice Louis D. Brandeis, in Whitney v. California, 274 U.S. 357 (1927). 152 Cameron, National Security and the European Convention on Human Rights, supra note 142, at 393. 153 Amnesty International, Concerns in Europe and Central Asia, January to June 2003, 1 October, 2003. 154 On 14 July 2004, the court overturned the earlier convictions and restated the opinion that the four former deputies had not received a fair trial in 1994. A new date has not yet been set for their third retrial. <www.news.bbc.co.uk/2/hi/europe/3892473.stm>, last visited July 2005.

Finnish Yearbook of International Law (Vol. XV, 2004) 224 __________________________________________________________________ characterizes the application of the law, which in turn raises questions of clarity, transparency and legal certainty. In some cases, the judge, invoking the same law provisions, decides to grant acquittal while in others, the opposite decision is made.155 The other issue is the tendency for prosecutors to use alternative provisions of the Penal Code (Articles 169, 311, 312) and the Anti-Terror Law (Article 7) to limit freedom of expression. Based on the EU’s 2002 Report on Progress, according to the judicial authorities, amendments to the Penal Code after the passing of the first three packages had led to the overruling by the Supreme Court of 50 judgements made under Article 159 and 24 judgements under Article 312. However, court cases relating to freedom of expression were still being brought against journalists, writers and publishers on other grounds, and some sources indicated that there were over 100 pending cases at the time of the report at the end of 2002.156 Regarding freedom of the press, overall, the grounds for imposing penalties were not modified and the Press Law continues to maintain its restrictions. According to the EU regular report on progress toward accession, by the end of 2003 official data indicated that prosecution under the Press Law had diminished. However, reports indicated the continued confiscation of publications and printing equipment, the suspension of publishing houses and the imposition of heavy fines on publishers and printers. There was also strict censorship of Internet content. 157 A report published by the Association of Turkish Editors indicates that 40 books by 39 writers were banned or subject to investigation between January and May 2002 alone. In reply to a parliamentary question the Ministry of the Interior announced that in 2001 the number of books and periodicals confiscated was 1309.158 The High Audio-Visual Board Law continued to impose heavy penalties (including the suspension or cancellation of the broadcasting licence) upon private radio and television stations for the use of ‘offensive language, libel, obscenity, Although there have been some acquittals in cases connected to Article 312 (cases Kutlular, Koru and Freedom of Thought), in other cases, the application of the same Article has led to convictions (Five journalists of Yeni Asya were convicted on 10 March by the Istanbul State Security Court). The same trend has been observed in the application of Article 159 of the Penal Code where several acquittals (cases Baslangiç, Bayramoglu, Özkoray) were in contrast with a number of convictions and postponement of sentences (Bekdil and Cevik cases, for example). Commission of the European Communities, 2002 Regular Report on Turkey’s Progress Towards Accession, Brussels, 9 October, 2002, SEC(2002) 1412, at 22. 156 Commission of the European Communities, 2002 Regular Report on Turkey’s Progress Towards Accession, Brussels, 9 October, 2002, SEC(2002) 1412, at 33. 157 Commission of the European Communities, 2003 Regular Report on Turkey’s Progress Towards Accession, Brussels, 9 October, 2002, SEC(2002) 1412, at 31. See <www.europa.eu.int/comm/enlargement/ report_2003/pdf/rr_tk_final.pdf>, last visited June 2004. 158 Commission of the European Communities, 2002 Regular Report on Turkey’s Progress Towards Accession, Brussels, 9 October, 2002, SEC(2002) 1412, at 33.

155

Secure State, Insecure People 225 __________________________________________________________________ incitement to hatred, separatist propaganda, or for the broadcasting of programmes in Kurdish’. In March 2002, a record number of bans on radio and television stations were imposed, and on 17 April 2002 CNN-Türk was closed down for a day. In June 2003, Cinar Television, based in Van, was closed for one month for having broadcast the speech of the President of the Rights and Freedoms Party (HAKPAR) during his visit to Van. Public TV channel Turkish Radio and Television (TRT) broadcast the same speech without encountering such difficulties, once more displaying arbitrariness in decisions.159 With the lifting of restrictions on relations of associations with international organizations, Amnesty International was given permission to open a branch office in Turkey in March 2002. Another positive development was the Ankara State Security Court judgement of March 2003 acquitting defendants in connection with the court case launched against German foundations and NGO representatives for allegations of ‘involvement in activities against the national unity and secular structure of the country.’160 A new pattern of pressure seems to run in parallel with the reform process: the huge number of trials and investigations opened against human rights defenders under various laws and regulations. According to the Human Rights Association (HRA), 450 prosecutions had been brought against it between 2000 and 2003 compared to 300 in the previous 14 years.161 Peaceful statements and activities were prosecuted on grounds of ‘insulting’ various state institutions (Article 159 of the TPC), ‘aiding and abetting an illegal organization’ (Article169), or ‘inciting the people to enmity’ (Article 312). Other activities were prohibited under the Press Law, the Law on Associations, and the Law on Meetings and Demonstrations. Some human rights defenders were imprisoned, but most were acquitted or their sentences suspended or commuted to fines. While this was an improvement on the previous pattern of physical attacks or imprisonment of human rights activists, the initiation of such large numbers of legal proceedings highlighted what Amnesty International regarded as a pattern of judicial harassment designed to intimidate human rights defenders and restrict their activities.162 Such pressure also has the impact of discouraging others from becoming involved in the defence of human rights and hence preventing the formation of a human rights culture in the society at large. Commission of the European Communities, 2003 Regular Report on Turkey’s Progress Towards Accession, Brussels, 9 October, 2002, SEC(2002) 1412, at 31. See <www.europa.eu.int/comm/enlargement/ report_2003/pdf/rr_tk_final.pdf>, last visited June 2004. 160 Ibid., at 32. 161 Amnesty International Report, Turkey: Restrictive Laws, Arbitrary Application – The Pressure on Human Rights Defenders, 12th February 2004, AI Index: EUR 44/002/2004. 162 Amnesty International, Concerns in Europe and Central Asia, January to June 2003, 1 October, 2003. 159

Finnish Yearbook of International Law (Vol. XV, 2004) 226 __________________________________________________________________ Despite some easing to the Law on Demonstrations, those who attempted to exercise their right to demonstrate peacefully or express dissent on some issues not only continued to face criminal prosecution but they also encountered a disproportionate use of force by police during demonstrations. 163 Groups particularly targeted during demonstrations included supporters of the political party DEHAP (Democratic People’s Party), leftist parties, trade unionists, students and anti-war activists. Three university students reported to Amnesty International their experience of being severely beaten during a peaceful demonstration in April 2003 against the visit of Colin Powell to Ankara. In an anti-war protest in Izmir in the same month, scenes broadcast on national and local television news broadcasts, showed police dispersing student protesters by beating and kicking them. 164 In the nine months since the passage of the latest reform packages (between July 2003 and April 2004), police have broken up at least 105 peaceful public gatherings, press conferences and demonstrations and arrested 1,822 demonstrators. According to reports by the Human Rights Foundation of Turkey, police used violence to break up gatherings on thirty-one occasions – beating demonstrators and spraying them with pepper gas.165 Despite some substantial changes, on the whole, the reforms made to laws specifically concerning freedom of expression, association and assembly consisted of amendments to the articles of these laws rather than the fundamental redrafting called for by human rights defenders. The downside of the system of passing a package of reforms with a series of amendments with one vote was that in order to avoid too much controversy, often the lowest common denominator of changes was sought. This can be seen in the fact that every package goes back to add some more minor, almost ‘cosmetic’ alteration to the same articles over and over again. Article 8 of the Anti-Terror Law, for example, which would finally be repealed with the sixth package, was amended twice, even introducing additional restrictions, the notion of ‘visual’ propaganda, in one of those amendments. Even more disconcerting is that, in most cases, reforms eliminating some restrictive measures have been countered either by the introduction of other repressive legislation, or by the court’s resorting to other existing articles of the criminal code. An example of the former is Parliament’s working on a draft proposal for establishing ‘Specialized Courts for Dealing With Organized Crime,’ whose jurisdiction would cover the same areas as those of the State Security Courts. Regarding the latter case, resorting to other articles of the criminal code, it is Amnesty International Country Report on Turkey for 2003. Amnesty International, Concerns in Europe and Central Asia, January to June 2003, 1 October, 2003. 165 Turkey: Continuing Restriction on Freedom of Assembly, Letter to Deputy Prime Minister Abdullah Gul by Human Rights Watch, 28th April, 2004. 163 164

Secure State, Insecure People 227 __________________________________________________________________ interesting to note that during the discussions of the harmonization packages by the Turkish Grand National Assembly, in especially sensitive provisions of certain laws, the government made a concerted effort to ensure that the laws contained a similar article somewhere else so as not to leave a ‘void’ in punishing the crime in question. In passing the sixth package, the repeal of Article 8 of the Anti-Terror Law was quite contentious as there was a concern that if the Article were abolished, propaganda against the ‘indivisible integrity of Turkey with its state and territory’ would go unpunished. The counter argument is rather revealing: Abolishing Article 8 presents no risk of a void in terms of protecting the unity of the country. Quite the opposite, in the absence of Article 8 of the Anti-Terror Law, Articles 311 and 312.2 of the Penal Code will be used, imposing even heavier sentences upon propaganda against the unity and security of the country.166

This proved to be true in practice as alternative provisions were used to launch cases against individuals who had just been acquitted on the basis of the amended legislation.167 Interpretation and implementation of the amended legislation is crucial to ensuring actual freedom of expression and as yet, there are no signs that the interpretation of the law by judges upholds the basic principles for restricting freedom of expression as defined under international law.

Concluding Thoughts The interminable tension between protecting national security and upholding the fundamental freedom of expression poses a challenge to all states. The extent of this challenge, however, is different in each state, and fluctuates according to a wide variety of factors, and is largely determined by each state’s definition of national security. In the context of Turkey, two full-fledged military interventions, two ‘coups by referendum’, total of almost four years of military rule and seven years of martial law throughout the country in the course of five decades has created a unique formulation of ‘national security’. Laden with an all-encompassing function of ‘protection of the constitutional system of the state, its existence and unity; its Travaux preparatoires of the Turkish Grand National Assembly of the Legislative Proposal No: 4928, known as the sixth harmonization package, 30 June 2003. My translation. 167 Commission of the European Communities, 2003 Regular Report on Turkey’s Progress Towards Accession, Brussels, 9 October, 2002, SEC(2002) 1412, at 30. See <www.europa.eu.int/comm/enlargement/ report_2003/pdf/rr_tk_final.pdf>, last visited June 2004. 166

Finnish Yearbook of International Law (Vol. XV, 2004) 228 __________________________________________________________________ political, social, cultural and economic interests,’ national security has become equivalent to the existence of the nation. According to this formulation, not only is ‘the state’ clearly the object to be secured, but also, taking the realist paradigm to its extreme, the threats from which the state needs to be secured are considered infinite. National security is less concerned with protecting the state from external attack than it is about preserving a unitary and secular Turkish Republic. Hence, any ‘suggestion’ that may be perceived as questioning the secular unitary Turkish Republic has been considered a threat to the nation’s very existence. As such, restrictions of the freedom of expression, rather than being subject to a ‘clear and present danger’ test, have been applied to any dissenting opinion. In so doing, Turkish law has effectively linked any intellectual endeavour about taboo subjects with the risk of prosecution and harassment by the state. The existence of a legal system with one of its core elements being the protection of the unity and the security of the state has created an environment of widespread and structural violations of human rights. Ironically, as I have sought to demonstrate, the measures to attain more security for the state have compromised the security of the state’s citizens, namely those individuals who have been faced, not only with imprisonment, but also with torture, ‘disappearances,’ and extrajudicial killings for the crime of expressing their dissident views. As such, infringement of the exercise of freedom of expression in Turkey has inevitably interfered with the most fundamental human rights, such as the right to security of the person, the right to freedom from torture and in some cases even the right to life. Invoking national security as a pretext for the punishment of dissenting views has not only endangered the security of individuals, it has had long-lasting effects on the democratization process and the formation of a civil society. In an environment where advocating the basic right to express an opposing opinion is seen as a direct opposition to the state, there is little room for open or constructive discussion for change. Yet, it is only through full freedom of thought and speech that the Turkish people can begin to question their history, the formation of the Turkish national identity and the specific conception of Turkish national security. Thus, precisely the biggest barrier to change has been the restriction of freedom of speech in the name of national security. In this way a vicious circle has been created: national security concerns that are defined based on certain understanding and values have constrained debate so those values could not be questioned. The reforms undertaken as part of fulfilment of Copenhagen Criteria for EU accession have removed some of the legislative barriers to freedom of expression in the name of national security. Yet the violations have continued. Legislative reform, motivated by EU accession, has addressed only the symptoms and not the root causes of the problem. Often, the changes have been in the form of cosmetic

Secure State, Insecure People 229 __________________________________________________________________ amendments, leaving the systematic punitive pattern and approach to criticism intact. Further and more substantial reform is necessary to tackle the cycle of designing and redesigning laws that regard the expression of opposing views as an attack on the state. Even in those cases where major legislative reforms were actually enacted, the implementation of those reforms has often been arbitrary. Persistence in holding on to old attitudes and the profound resistance to change, transparency and democratic norms among the state institutions remains a significant impediment to meaningful change. Far-reaching institutional reform must accompany legal reform in order to maintain any effectiveness and sustainability. Clear delineation of what constitutes acceptable and unacceptable expression should be established in law based on the language of the ECHR and the Court’s case law. Judges need to become fully versed in the new laws and regulations and reflect the ECHR in their judgements. One practical way to advance their professional training could be a wide ranging system of exchange programs that would personally expose Turkish judges and lawyers to the international system. But judiciary reform is still only part of the solution. The most important requirement is a fundamental change in attitude, both for state institutions and society at large; an attitude that will allow for open discussion and vibrant debate in the society with the possibility to question, challenge and criticize established norms. In case of institutions, prosecutors and judges should be supported by other state authorities when they make decisions, which may go against state interests or government officials. They need to have the confidence that when they uphold international standards they will not suffer adverse professional, or personal, consequences. Both further and deeper legislative reform, as well as institutional reform, ultimately call for a major transformation of the state’s view of itself and its relationship with its citizens. This implies a new conception of national security, which as Lustgarten and Leigh point out, would ‘strip the concept down to its irreducible minimum, a core of validity which can then be accepted as requiring extraordinary measures.’168 This new definition would then need to be reflected in the legal framework and a first step toward that could be a new constitution. No matter the extent of changes, the 1982 Constitution still carries with it the legacy of the military rule. A military philosophy has permeated it, through and through. A new constitution would be a fresh start, a first attempt at re-establishing a framework that determines basic rights and freedoms. Equally as important as the content is the methodology by which the constitution is created, passed and incorporated into the daily lives of the citizenry. In order not to have a new constitution merely as yet another legal document, 168

Lustgarten and Leigh, In From the Cold, supra note 10, at 35.

Finnish Yearbook of International Law (Vol. XV, 2004) 230 __________________________________________________________________ awareness needs to be created, with the help of the civil society, to involve the people in the making of the constitution and its implementation. None of the three constitutions implemented since the establishment of the Turkish Republic in 1923 has been developed through a process of negotiation and compromise involving representation from a wide range of the society. In fact, to the contrary, all three have been products of the governing elite, and in case of the last two, of a small military group with no representation from civil society. A new constitution would represent a break with the past and with the history of military dominance. A Constituent Assembly directly chosen by the people and representing a wide range of social and political interests would involve the country’s citizenry in open, lively debate. The drafted constitution should then be put to a referendum whereby people would directly participate in the decision-making. Finally, once it is passed through the referendum, the civil society organizations have to develop programs to build awareness of incorporating the constitution into people’s daily lives. Perhaps, such a process could be the beginning of a reversal of the ‘depoliticization’ of society that has been brought about by the existing Constitution. These are just some ideas that could help shift the balance between security and freedom of expression that has been struck so often in favour of the former over the past decades. Their implementation would require a process of cooperation between the state and the civil society. The government has to change its attitude of considering human rights defenders as the enemy and view their work instead as a positive, complementary contribution to their own efforts to fulfil their international commitments. It is crucial to create an environment in which civil society can fully participate and the exercise of fundamental freedoms is not seen as an attack on the state. These are not changes that can be attained overnight. The lengthy, systematic process of sacrificing freedoms in the interest of national security in Turkey has proven very difficult to reverse. Once the scales of freedom are shifted in favour of security at the expense of individual liberty, the process of regaining those fundamental human rights lost to perceived threats to a state (whether actual or constructed) is a tremendously difficult task. There is still a long road to travel in order for Turkey to arrive in a new place where national security and freedom of expression are not at odds. That is an insight that seems all the more relevant in today’s global context of rewriting the security-liberty equation. The ‘global terrorist threat’ has been constructed in such a way that we now find ourselves back to Waltz’s conception of the security-liberty equation as a zero-sum game169. While Turkey is trying to tip the balance in favour of fundamental rights and freedoms, Western democracies are Refers to Waltz’s concept of : ‘States, like people, are insecure in proportion to the extent of their freedom. If freedom is wanted, insecurity must be accepted.’ See footnote 13 and accompanying text.

169

Secure State, Insecure People 231 __________________________________________________________________ engaged in the opposite endeavour. In the aftermath of the 11 th of September, Turkey did not fail to seek retrospective legitimization, by pointing out the similarity of policies undertaken in the name of American national security to the policies for which Turkey has always been criticized. Somehow, it would appear that despite their years of reprimands, Western democracies seem to have missed the lesson that the measures restricting freedom generally reduce, rather than increase the security of the people. That they also compromise the very foundations of ‘democracy,’ is an even bigger lesson missed.

Death of the Layman: The Legacy of Deconstruction and the Philosophy of International Law Veijo Heiskanen*

In what would become his last interview, Jacques Derrida posed the question of the legacy of his work.1 What would happen to deconstruction after his death? Derrida offered two contradictory hypotheses: [J]’ai simultanément, je vous prie de me croire, le double sentiment, d’un côté, pour le dire en souriant et immodestement, on n’a pas commencé à me lire, que s’il y a, certes, beaucoup de très bons lecteurs (quelques dizaines au monde, peut-être), au fond, c’est plus tard que tout cela a une chance d’apparaître; mais aussi bien que, d’un autre côté, quinze jours ou un mois après ma mort, il ne restera plus rien. Sauf ce qui est gardé par le dépôt légal en bibliothèque. Je vous le jure, je crois sincèrement et simultanément à ces deux hypothèses.2

How does one begin to read these two hypotheses? That there are two principal strategies for dealing with one’s intellectual legacy or, in economic terms, one’s accumulated intellectual capital? That just as this capital may be re-invested in a new intellectual undertaking that over time may produce new intellectual gains, it may also be simply conserved as such by depositing it on a savings account – a dépôt légal – where it attracts only limited (legal) interest? In other words, that one may adopt an entrepreneurial or a conservative investment strategy, aware that one is riskier than the other. While an investment in a new undertaking may promise more interesting intellectual gains, the risk exists that the invested capital is consumed and wasted before any intellectual gains are realized. Conversely, while the interest attracted by a savings account may be low, it nonetheless tends to better secure the accumulated intellectual capital.

* Docent of International Law, University of Helsinki. 1 Le Monde, 18 August 2004. 2 Ibid.

Finnish Yearbook of International Law (Vol. XV, 2004) 234 __________________________________________________________________ In the same interview, Derrida indicated that he was himself a risk-taker and that he preferred the entrepreneurial investment strategy. Indeed, he suggested that at least part of his legacy should be invested in the development of a new concept of European international law, or a new European concept of international law: L’Europe se trouve sous l’injonction d’assumer une responsabilité nouvelle. Je ne parle pas de la communauté européenne telle qu’elle existe ou se dessine dans sa majorité actuelle (néolibérale) et virtuellement menacée de tant de guerres internes, mais d’une Europe à venir, et ce qui se cherche. En Europe (‘géographique’) et ailleurs. Ce qu’on nomme algébriquement ‘l’Europe’ a des responsabilités à prendre, pour l’avenir de l’humanité, pour celui du droit international – ça c’est ma foi, ma croyance. Et là, je n’hésiterai pas à dire ‘nous les Européens.’ Il ne s’agit pas de souhaiter la constitution d’une Europe qui serait une autre superpuissance militaire, protégeant son marché et faisant contrepoids aux autres blocs, mais d’une Europe qui viendrait semer la graine d’une nouvelle politique altermondialiste. Laquelle est pour moi la seule issue possible. Cette force est en marche. Même si ses motifs sont encore confus, je pense que plus rien ne l’arrêtera. Quand je dis l’Europe, c’est ça: une Europe altermondialiste, transformant le concept et les pratiques de la souveraineté et du droit international.3

While Derrida did not translate his suggestion into deconstructive action, such an undertaking was posed as a question, as a possibility, as a challenge. This was not an isolated incident. Derrida’s interest in transforming, revolutionizing if you will, the concept of international law became a recurring theme in his work and formed part in the shift of his philosophical interest that took place in the course of the 1980s and 1990s – a shift from reading philosophical and literary texts towards legal and political issues.4 This shift was not a coincidence in the radical sense of this concept, i.e. in the sense that this new field of deconstructive inquiry did not only not coincide with the field in which deconstruction developed – philosophy and literature. It was also not a coincidence in the sense that this encounter between deconstruction and law was not preceded by a deconstruction of the concept of law itself. Indeed, it appeared as if Derrida sought to apply the lexicon of the old project of deconstruction in his newly chosen field, without thereby fundamentally deconstructing this field’s own conceptual hierarchies. No doubt Derrida was aware Ibid. See, e.g., the following texts: Jacques Derrida, Voyous: Deux Essais Sur la Raison (Galilée: Paris, 2003); Giovanna Borradori, Philosophy in a Time of Terror: Dialogues with Jurgen Habermas and Jacques Derrida (The University of Chicago Press, 2003); Jacques Derrida, On Cosmopolitanism and Forgiveness (Routledge: London, 2001); Jacques Derrida, Specters of Marx: The State of the Debt, the Work of Mourning and the New International (Peggy Kamuf trans., Routledge: London, 1994); Jacques Derrida, L’autre Cap (Les Editions de Minuit: Paris, 1991); Jacques Derrida, ‘Force of Law: The “Mystical Foundation of Authority”’, in Jacques Derrida, Acts of Religion (Gil Anidjar ed., Routledge: London, 2004) at 228. (English translation provided if available.) 3 4

Death of the Layman 235 __________________________________________________________________ that the problématique of law and deconstruction was not exhausted – as suggested by his last interview. If the decision were taken to invest a portion of the legacy of deconstruction in the development of a new concept of European international law, or a new concept of international law based on the predominantly ‘European’ – that is, European in a cultural rather than geographical sense – tradition of the Enlightenment, 5 these appear to be the questions that must be examined: What is the relationship between the laws of literature and the concept of (positive) law? Is there any difference? If there is a difference, where is it located, precisely? Is this difference itself part of literature or part of positive law? Must one not, in order to apply the deconstruction of philosophical and literary texts in the field of international law, translate the language and problematic of deconstruction into the language of international law, and not simply apply it? Assuming such an undertaking were undertaken, what would happen to the legacy of deconstruction in the course of this translation? Would it produce any new intellectual gains, or would its intellectual capital be simply consumed without any profit, without any interest? Would the undertaking be overtaken by an undertaker – and buried alive on a dépôt légal like its predecessors?6 Let us conduct a preliminary study to explore these – obviously purely hypothetical – questions. Hypothetical, that is, without prejudice and without any actual expenditure of intellectual capital.

I Is the conceptual distinction between international and domestic law not the founding concept of any theory of positive law? Is this distinction not structured like any (other) opposition of metaphysical concepts, i.e. as a conceptual hierarchy rather than a neutral distinction? Should the deconstruction of the concept of law not start from a strategic intervention in this founding distinction of the theory of law? Very schematically, an opposition of metaphysical concepts (e.g., speech/writing, presence/absence, etc.) is never the confrontation of two terms, but a hierarchy and the order of subordination. Deconstruction cannot be restricted or immediately pass to a neutralization: it must, through a double gesture, a double 5 The focus on the European tradition in this paper does not mean that it has no implications on the common law based approach to international law. Indeed, the conceptual opposition between civil law and common law itself remains to be deconstructed. 6 See, e.g., Veijo Heiskanen, International Legal Topics (Finnish Lawyers’ Publishing Co.: Helsinki, 1992).

Finnish Yearbook of International Law (Vol. XV, 2004) 236 __________________________________________________________________ science, a double writing – put into practice a reversal of the classical opposition and a general displacement of the system. It is on that condition alone that deconstruction will provide the means of intervening in the field of oppositions it criticizes and that is also a field of nondiscursive forces.7

More specifically, is the distinction between international and domestic law not structured like the metaphysical opposition of writing and speech? Is it not quite obvious, even self-evident, that in this conceptual opposition – by implication and even without mention, not to mention use – the concept of domestic law represents the higher and the more developed form of law to which the concept of international law is subordinated? In order to deconstruct this conceptual opposition, could one not simply replace writing with international law and speech with domestic law in the writings of deconstruction? [T]he history of (the only) metaphysics … has, in spite of all the differences, not only from Plato to Hegel (even including Leibniz) but also, beyond these apparent limits, from the pre-Socrates to Heidegger, always assigned the origin of the truth in general to the logos: the history of the truth, of the truth of the truth, has always been … the debasement of [international law] [writing], and its repression outside [full-fledged domestic law] [‘full’ speech].8

The strengths and advantages of domestic law are analogous to those of speech. Just as speech is more natural and authentic as a form of communication than writing because it takes place in the living presence of the speaker and thus 7 Jacques Derrida, ‘Signature Event Context’, in Jacques Derrida, Limited Inc (Samuel Weber & Jeffrey Mehlman trans., Northwestern University Press: Evanston, IL, 1988) 1 at 21 (emphasis in original). See also Jacques Derrida, Positions (Alan Bass trans., The University of Chicago Press, 1981) at 41:

What interested me then, that I am attempting to pursue along other lines now, was, at the same time as a ‘general economy,’ a kind of general strategy of deconstruction. The latter is to avoid both simply neutralizing the binary oppositions of metaphysics and simply residing within the closed field of these oppositions, thereby confirming it. Therefore we must proceed using a double gesture, according to a unity that is both systematic and in and of itself divided, a double writing, that is, a writing that is in and of itself multiple, what I called, in ‘La double séance,’ a double science. On the one hand, we must traverse a phase of a vis-à-vis, but rather with a violent hierarchy. One of the two terms governs the other (axiologically, logically, etc.), or has the upper hand. To deconstruct the opposition, first of all, is to overturn the hierarchy at a given moment. To overlook this phase of overturning is to forget the conflictual and subordinating structure of opposition. Therefore one might proceed too quickly to a neutralization that in practice would leave the previous field untouched, leaving one no hold on the previous opposition, thereby preventing any means of intervening in the field effectively. We know what always have been the practical (particularly political) effects of immediately jumping beyond oppositions, and of protests in the simple form of neither this nor that. (Emphasis in original; footnote omitted.) 8 Jacques Derrida, Of Grammatology (Gayatri Chakravorty Spivak trans., The Johns Hopkins University Press: Baltimore, 1974) at 3 (emphasis in original).

Death of the Layman 237 __________________________________________________________________ embodies the speakers’ real intentions, his meaning-intention (Bedeutung, voulour-dire), domestic law is enacted in the living presence of the people – by the people for the people, for themselves – and is therefore legitimate because it conveys and embodies their common sense (bon sens, gesunder Verstand). It is for this reason that domestic law is more natural and authentic and therefore more legitimate than international law – it constitutes the model of proper law because it is the proper law of the people, made by the people for themselves. There is an immediate proximity of subject and object, a subject-object or a sovereign – there is no one in between the one who enacts the law and the one for whom the law is enacted. In this sense, just as speech represents the ideal form of language and communication because it embodies the identity of sense and intention, domestic law represents the ideal of democracy and democratic law-making because it embodies the identity of law and common sense. This embodiment is the result of a perfect coincidence of the one who legislates – the people – and the one that is bound by that legislation – the people. This coincidence is the essence of the sovereignty of the people. Why is [the domestic statute] [the phoneme] the most ‘ideal’ of [rules] [signs]? Where does this complicity between [laws] [sound] and ideality, or rather, between [legislation] [voice] and ideality, come from? … When [we] [I] [legislate] [speak], it belongs to the phenomenological essence of this operation that [we legislate for ourselves] [I hear myself] at the same time that [we legislate for others] [I speak]. The [enactment] [signifier], [legitimated] [animated] by [our] [my] [vote] [breath] and by the [common sense] [meaning-intention] …, is in absolute proximity to [us] [me]. The [legal] [living] act, the [legalizing] [life-giving] act, the Lebendigkeit, which [legitimates] [animates] the body of the [enactment] [signifier] and transforms it into a [valid] [meaningful] [code] [expression], the soul of [law] [language], seems not to separate itself from itself, from its own [positivity] [selfpresence]. It does not risk death in the body of a[n] [enactment] [signifier] that is given over to the world and the visibility of space. It can show the ideal object or ideal [sense] [Bedeutung] connected to it without venturing outside ideality, outside the interiority of [our positive sovereignty] [self-present life]. … The [proper positivity] [self-presence] of the [legitimating] [animating] act in the transparent spirituality of what it [legitimates] [animates], this inwardness of [sovereignty] [life] with itself, which has always made us say that [domestic law] [speech] is alive, supposes, then, that the [people themselves] [speaking subject] [legislate for themselves] [hears himself] [their own positive law] [in the present]. Such is the essence or norm of [domestic law] [speech].9

9 Jacques Derrida, Speech and Phenomena and Other Essays on Husserl’s Theory of Signs (David B. Allison & Newton Garver trans., Northwestern University Press: Evanston, IL., 1973) at 77-78 (emphasis in original).

Finnish Yearbook of International Law (Vol. XV, 2004) 238 __________________________________________________________________ But although domestic law is generally full-fledged and self-sufficient, it does condone and accommodate, to a limited degree, the concept of international law. While international law is clearly the junior partner in this hierarchy, the relationship between international and domestic law is more complex than a simple hierarchy. It could be characterized as one of supplementation. The verb ‘to supplant’ or ‘to complement for’ [suppléer] defines the [application] [act] of [international law] [writing] adequately. … If supplementarity is a necessarily indefinite process, [international law] [writing] is the supplement par excellence since it marks the point where the supplement proposes itself as supplement of supplement, sign of sign, taking the place of a [domestic law] [speech] already [enacted] [significant]: it displaces the proper place of the sentence, the unique time of the sentence pronounced hic et nunc by an irreplaceable [people] [subject], and in return enervates the [legislation] [voice]. It marks the place of the initial doubling.10

Is it not the case that, just as writing is seen in the tradition of Western metaphysics as a supplement to speech, international law is merely a supplement to domestic law? A supplement, that is, without which the domestic law can exist and survive, even thrive, since international law adds nothing essential to the concept of (domestic) law, which is self-sufficient and complete as such and can exist in its own (domestic) sphere without any contributions from international law; but also supplementing domestic law in its absence, outside its own domestic sphere, outside its proper scope of application. In the former sense, international law is essentially superfluous; in the latter sense, it is simply a replacement, a substitute, that is, applied (only) in the absence of domestic law. But although international law is essentially supplementary to domestic law and thus subordinated to it, it is also necessary and as such, potentially dangerous. This is what may be dangerous about international law: as it substitutes for domestic law in its absence, in its outside, it reveals a lack, a deficiency, in domestic law and thus, by extension, in the very body of the concept of law. It is implicit in the concept of international law that there is an area – an outside – that cannot be mastered by domestic law and that remains outside its field of application and jurisdiction. [International law] [writing] is dangerous from the moment that representation there claims to be [positive law] [presence] and the [rule] [sign] of the [system] [thing] itself. And there is a fatal necessity, inscribed in the very functioning of the [rule] [sign], that the substitute make one forget the vicariousness of its own function and make itself pass for the plenitude of [domestic law] [speech] whose deficiency and infirmity it nevertheless only supplements. For the concept of the 10

Jacques Derrida, Of Grammatology, supra note 5, at 280-81 (emphasis in original).

Death of the Layman 239 __________________________________________________________________ supplement – which here determines that of the representative image – harbors within itself two significations whose cohabitation is as strange as it is necessary. The supplement adds itself, it is a surplus, a plenitude enriching another plenitude, the fullest measure of [positive law] [presence]. It cumulates and accumulates [positive law] [presence]. … But the supplement supplements. It adds only to replace. It intervenes or insinuates itself in-the-place-of; if it fills, it is as if one fills a void. If it represents and makes an image, it is by the anterior default of [positive law] [presence]. … The second signification of the supplement cannot be separated from the first. … Each of the two significations is by turns effaced or becomes discreetly vague in the presence of the other. But their common function is shown in this: whether it adds or substitutes itself, the supplement is exterior, outside of the positivity to which it is super-added, alien to that which, in order to be replaced by it, must be other than it. … [T]he supplement is an ‘exterior addition’ … .11

It is this relationship with the exterior – the relationship with the others; those outside the home of domestic law – that is left for regulation by international law. While the obligations based on these regulations may have no relevance in the domestic sphere as they may often be consumed in their entirety outside domestic jurisdiction, they may occasionally also have to be transformed or incorporated into domestic law. Once transformed and incorporated, these obligations do not essentially differ from domestic law; however, this process of transformation and incorporation is not without dangers. Just as written text can be spoken – read aloud – international law can be transformed into domestic law; but just as speech is most natural and effective when delivered live, spontaneously and not slavishly from notes, domestic law is most legitimate and effective when it grows spontaneously and without an external script out of the people’s common sense – by the people and for the people. International law, even when transformed and incorporated into domestic law, runs the risk of reversing the natural order of things – the legal order between natural and artificial, subject and object, speaker and writer, father and son, Socrates and Plato, the former and the latter.12 Just as writing may corrupt live speech by making it dependent on writing as a memory aid, international law may corrupt the creation of domestic law by making it dependent on an external script – on external dictation. Ibid. at 144-45 (emphasis in original). See Jacques Derrida, The Post Card: From Socrates to Freud and Beyond (Alan Bass trans., The University of Chicago Press, 1987). The dominant theme in this book is the reversal of a conventional sequence, the revelation that time and logic move in opposite directions – although historically cause precedes effect, logically effect precedes cause and is seen and understood before its cause becomes known. As noted by Alan Bass, ‘[o]ne of the main concerns of The Post Card is the possible subversion of what is usually taken as a fixed sequence – e.g., Socrates before Plato, the passing of an inheritance from a prior generation to a succeeding one, the death of the old before the young. What if the usual and seemingly fixed sequence were reversible?’ Ibid. at ix.

11 12

Finnish Yearbook of International Law (Vol. XV, 2004) 240 __________________________________________________________________ Such will be, in its logical outlines, the objection of the king to [international law] [writing]: under pretext of supplementing [tradition] [memory], [international law] [writing] makes one even more forgetful; far from increasing knowledge, it diminishes it. … If [international law] [writing] … produces the opposite effect from what is expected … it is because … it doesn’t come from around here. It comes from afar, it is external or alien: to the living, which is the right-here of the inside, to [the people] [logos] as the zoon it claims to assist or relieve. … Knowing that he can always leave his thoughts outside or check them with an external agency, with the physical, spatial, superficial marks that one lays flat on a tablet, he who has the tekhne of [international law] [writing] at his disposal will come to rely on it. … What Plato is attacking in sophistics, therefore, is not simply recourse to [tradition] [memory] but, within such recourse, the substitution of the mnemonic device for live [tradition] [memory], of the prosthesis for the organ; the perversion that consists in replacing a limb by a thing, here, substituting the passive, mechanical ‘by-heart’ for the active reanimation of knowledge, for its reproduction in the present. The boundary (between inside and outside, living and non-living) separates not only [domestic law] [speech] from [international law] [writing] but also [tradition] [memory] as an unveiling (re-)producing of presence from re-memoration as the mere repetition of a monument; truth as distinct from its sign, being as distinct from types.13

Like writing, international law is artificial – a prosthesis rather than a live organ that has developed on its own, spontaneously, as part of the living tradition of the people. International law has not grown and developed authentically and naturally out of the common sense of the people, by the people and for the people – it has been created by their representatives or rather, by the representatives of representatives. For even domestic law – for practical reasons alone and not for reasons of policy or principle – is not in fact enacted by the people themselves, but by their representatives. Consequently, just as writing is defined in Western metaphysics as the sign of the sign – as representation of speech – international law may be defined as the law of the representatives of representatives. As such, it is artificial: just as writing lacks the natural bond between the sense and the senses, or the sense to the sound, international law is law in disguise because there is no direct, immediate, spontaneous, natural and authentic bond between international law and the common sense of the people. 14 If the artificial nature of international law is forgotten, there is a great danger that the natural order is reversed and domestic law becomes seen simply as a representation of international law, as its application. As a

13 Jacques Derrida, Dissemination (Barbara Johnson trans., The University of Chicago Press, 1981) at 100, 104, 108-09. 14 Jacques Derrida, Of Grammatology, supra note 8, at 36.

Death of the Layman 241 __________________________________________________________________ result, the logical and natural order of domestic law and international law, and the sovereignty of the people as the authentic source of law, would be lost. What is intolerable and fascinating is indeed the intimacy intertwining image and thing, graph, i.e., and phone, to the point where by a mirroring, inverting, and perverting effect, [domestic law] [speech] seems in its turn the speculum of [international law] [writing], which ‘manages to usurp the main role.’ Representation mingles with what it represents, to the point where one [makes domestic law] as one [makes international law], one thinks as if the represented were nothing more than the shadow or reflection of the representer. A dangerous promiscuity and a nefarious complicity between the reflection and the reflected which lets itself be seduced narcissistically. In this play of representation, the point of origin becomes ungraspable. There are things like reflecting pools, and images, an infinite reference from one to the other, but no longer a source, a spring. There is no longer a simple origin.15

In order to be proper, the proper law of the people, the law must embody the common sense of the people and be enacted by the people for the people, in their presence – even though, for practical reasons, the presence of the people must be supplemented by the presence of their representatives. The common sense (bon sens, gesunder Verstand) of the people is the metaphysical logos of the theory of positive law which, if only technically possible, would much prefer to create the law authentically, without representation, without any representatives, without any supplementation; this is the translation into the language of law of the thematic of the Western metaphysics of presence.16 Just as soliloquy – thinking – is the model of perfect communication in the tradition of Western metaphysics because the fact that there is no difference, no distance and therefore no representation between the subject that communicates and the object that hears, appears to guarantee full certainty and perfect understanding of the intended meaning of the speaker, direct democracy is the ideal of Western political philosophy because the fact that there is no representation, no go-between between those who legislate and those who are bound by this legislation, appears to ensure, with positive certainty, that the sense of positive laws perfectly and harmoniously coincides with the common sense of the people. Representatives are a necessary evil required solely for purposes of external communication: just as speech is properly understood only if the hearer’s Ibid. Jacques Derrida, Speech and Phenomena, supra note 9, at 99: ‘The[ir] common matrix [of the founding concepts of phenomenology] is being as presence: The absolute proximity of self-identity, the being-infront of the object available for repetition, the maintenance of the temporal present, whose ideal form is the self-presence of transcendental life, whose ideal identity allows idealiter of infinite repetition. The living present, a concept that cannot be broken down into a subject and an attribute, is thus the conceptual foundation of phenomenology as metaphysics.’ (emphasis in original) 15 16

Finnish Yearbook of International Law (Vol. XV, 2004) 242 __________________________________________________________________ understanding perfectly coincides with the intended meaning (Bedeutung, vouloir-dire) of the speaker, the laws enacted by the representatives of the people are legitimate only to the extent that they embody and coincide with the common sense of the people. This is the revolutionary founding condition and presentation of the democratic legitimacy of laws – the present of the revolution to the people and the presentation of the people to their representatives. If this founding condition is not met – if the representatives do not represent what the people presented to them, i.e. if they do not enact laws that coincide with the common sense of the people – the people need not respect and obey the laws and may engage in civil disobedience. But it is this representation, this delegation of the function of communication to an external agent, that also relativizes the distinction between domestic law and international law, just as it relativizes the distinction between speech and writing. Just as the communication of intention requires the logos – the thinker – to speak, to express his intended meaning in a spoken sign, i.e. in the form of representation – the expression of the common sense of the people requires the people to delegate the function of expression and communication of their common sense to their representatives. This alienation of the function of external expression and communication is a deeply ambiguous and ambivalent act. It is the conceptual root cause of the ever-present danger of role reversal in a democracy: just as writing may dull memory and therefore risks becoming the dictator of speech, the representatives of the people may usurp the power of the people to enact their own laws and convert democracy into a dictatorship; this is the logical structure of a counterrevolutionary coup d’état. Dictator is not the one who tells others to write, or what to write, but the one who speaks from a script – the one who reads from his script without listening, or without listening to others, that is, without listening to what the people presented to him, hearing only himself (speak). Dictator is a usurper because he reverses the natural order of speaking and writing, presenting and representing, and thus corrupts it: he does not speak first (spontaneously) and then write (to memorize what is said), and he does not represent (to the people) what the people presented to him (their common sense); he reads from a preordained script and presents to the people what he – the dictator himself – represents, i.e. what makes sense to him. The dictator presents himself as the people. This danger is the other side of the coin of democracy, its downside. Since, paradoxically, dictator not only corrupts the revolutionary founding condition and presentation of democracy; he also embodies the perfect coincidence of the two fundamental Western ideals – the metaphysics of presence and democracy without representation; these two fundamental Western ideals come true in the head of one man, in a one man’s democracy. Since a dictator is a man who, while speaking (reading) by himself and for himself – thus hearing (only) himself (speak) and

Death of the Layman 243 __________________________________________________________________ therefore perfectly understanding what he himself intends to mean, also dictates the laws of the people for the people, simultaneously and without any representation, as if he were the people. There is no difference, no distance, no representation here between speaking and hearing, subject and object, speaking and legislating, the legislator and the people; all these ideals coincide in the head of a one man, in a soliloquy, without any difference or representation that would corrupt the realization of the ideals of authentic understanding and democracy without representation – and thereby absolutely corrupting them. The dictator is the people: the ultimate realization of their ideals and the ultimate corruption of those ideals, simultaneously and without difference. This is why representation – delegation of the function of expression and communication of the common sense of the people to their representatives – is not only the ultimate danger of democracy but also its ultimate protection. It is the ultimate danger of democracy because it creates the risk of usurpation by an external dictator of the people’s sovereign power to legislate themselves for themselves; but it is also the ultimate protection of democracy because it prevents the two ideals of Western metaphysics – the metaphysics of presence and the metaphysics of democracy without representation – from coming true. In other words, representation – the alienation to representatives of the people’s sovereign right to legislate themselves for themselves – is not only the root cause of the inherent corruptibility of democracy, but also its necessary protection – the sole remedy that can protect democracy from itself, from its inherent corruptibility. Thus, even domestic law, the model of all law, is made and must be made, like international law, by representatives. In this sense, domestic law, like international law, is originally corrupt – it is not made immediately and authentically by the people and for the people, but – in the first place – by and for their representatives. There is no law made immediately, proximately and authentically by the people for the people. The people is never present. While there is a difference between international and domestic law, this difference is a difference between laws made by representatives of representatives, and those made by representatives of a certain political and metaphysical ideal – the people. It is therefore, in effect international law that appears to be the more ‘real’ law in the sense that, at least, it represents real people – the representatives of the people – and not only an abstract ideal that is never present – the people. What do these limits and presuppositions signify? First that [the theory of law] [linguistics] is not general as long as it defines its outside and inside in terms of determined [theoretical] [linguistic] models; as long as it does not rigorously distinguish essence from fact in their respective degrees of generality. The system of [international law] [writing] in general is not exterior to the system of [law] [language] in general, unless it is granted that the division between exterior

Finnish Yearbook of International Law (Vol. XV, 2004) 244 __________________________________________________________________ and interior passes through the interior of the interior or the exterior of the exterior, to the point where the immanence of [law] [language] is essentially exposed to the intervention of forces that are apparently alien to its system. For the same reason, [international law] [writing] in general is not ‘image’ or ‘figuration’ of [law] [language] in general, except if the nature, the logic, and the functioning of the image within the system from which one wishes to exclude it be reconsidered. [International law] [writing] is not [the law of representatives of representatives] [a sign of a sign], except if one says it of all [rules] [signs], which would be more profoundly true.17

While the greater distance between the ideal – the people – and the law does create a greater risk that international law does not fully coincide with the common sense of the people, it is also this greater distance between the people and the law that in fact makes international law less dangerous, less likely to be usurped by an external dictator, and therefore less susceptible to corruption. As the creators of international law – the representatives of representatives – represent different peoples, and not only those from the West, who share the fundamental Western ideals of the metaphysics of presence and democracy without representation, a would-be dictator faces a much harder, if not an impossible task. Indeed, it seems highly unlikely that the representatives of representatives – given the differences of opinion between them and between their different peoples – will ever be able to agree that these fundamentally Western ideals – or any other, more traditional ideals for that matter – be adopted as the basis of the international system, thereby creating the risk of usurpation by a global dictator of the power of their peoples. These differences are the real source of the power of the people – their best protection against a global tyranny. God bless them. Thus, the traditional hierarchy of legal theory seems to have no conceptual justification. In the end, and contrary to conventional common sense, international law seems in fact the ‘real’ law – more realistic and less risky as the model of law than domestic law. And indeed, is such a strategic reversal of the traditional hierarchy justified not only for conceptual reasons but also by the facts? Since, in the end, is it not true that international law is not only the more realistic and the less dangerous branch of law but also more durable than domestic law? While a state may fail and die, and its domestic law with it, international law survives the death – the failure – of the state. International law will survive and live on precisely because it is not dependent on any particular state; because it has not been monopolized by any particular state or super-state and therefore is not tied to the fate and vicissitudes of the life of the state. Thus, when a state dies, its law dies; but when a particular regime or context of international law ceases to exist – and these contexts 17

Jacques Derrida, Of Grammatology, supra note 8, at 43 (emphasis in original).

Death of the Layman 245 __________________________________________________________________ may be and often are temporary, ad hoc regime created for a particular purpose – international law, as a ‘system,’ will survive. Like writing survives and can be read after the death of the speaker, international law survives and remains applicable after the death of the state.18 Thus, from the point view of both law and fact, international law does in the end seem more valuable as an object of legal theory than domestic law and therefore an undertaking worthy of investing a fair amount of intellectual capital. Indeed, it would seem arguable – if one wished to re-invest the legacy of deconstruction in such an undertaking – that just as semiology remains dominated and governed by linguistics and therefore must be replaced – provisionally and strategically – by grammatology, or the study of writing, the philosophy of law must be replaced – provisionally and strategically – by the philosophy of international law, in order to liberate the project of the philosophy of law from the repression of (domestic) law as its model. The advantage of this substitution of [philosophy of law by philosophy of international law] [semiology by grammatology] will not only give to [international law] [the theory of writing] the scope needed to counter logocentric repression and the subordination to [philosophy of domestic law] [linguistics]. It will liberate the [legal-philosophical] [semiological] project itself from what, in spite of its greater theoretical extension, remained governed by [domestic law] [linguistics], organized as if [domestic law] [linguistics] were at once its center and its telos.19

II While the theory of (domestic) law has managed to subordinate the concept of international law to domestic law with relative ease, the relation of international law 18 Jacques Derrida, Dissemination, supra note 13, at 104-05: ‘[Writing] will represent [the one who writes] even if forgets them; they will transmit his word even if he is not there to animate them. Even if he is dead, and only a pharmakon can be the wielder of such power, over death but also in cahoots with it. The pharmakon and writing are thus always involved in questions of life and death.’ 19 Jacques Derrida, Of Grammatology, supra note 8, at 51 (emphasis in original). See also Jacques Derrida, ‘Signature Event Context’, supra note 7, at 21: ‘[D]espite the general displacement of the classical, “philosophical,” occidental concept of writing, it seems necessary to retain, provisionally and strategically, the old name. … There is no concept that is metaphysical in itself. There is a labor – metaphysical or not – performed on conceptual systems. Deconstruction does not consist in moving from one concept to another, but in reversing and displacing a conceptual order as well as the nonconceptual order with which it is articulated. … To leave to this new concept the old name of writing is tantamount to maintaining the structure of a graft, the transition and indispensable adherence to an effective intervention in the constituted historical field.’ (emphasis in original)

Finnish Yearbook of International Law (Vol. XV, 2004) 246 __________________________________________________________________ and municipal law – as domestic law is strategically termed within the discipline of international law – has been the source of debate and controversy in international legal theory since the dawn of the discipline. Indeed, for a long time, until at least World War II, this question was seen as the question of international legal theory, and enormous intellectual efforts were invested in attempts to answer it. But the question proved too hard to be resolved – or the answer too elusive – and no consensus was reached.20 As all the various efforts to answer the question ultimately failed, international legal scholarship was forced to look for other solutions. Indeed, the story of modern international law largely reads as a story of the various attempts made by international legal scholarship to pose and answer – and, once it turned out that it cannot be answered – to suspend the question of the relationship between international law and municipal law. In the end, after much intellectual energy was consumed, an understanding was reached on how to pose the question – it should first be deposed and then begged. An almost uniform consensus currently exists among international legal scholars that the question of the relation of international and municipal must be addressed pragmatically, and that this question can largely be reduced to the question of the applicability of international law within domestic jurisdiction.21 An even more uniform consensus exists within the discipline that the proper place for discussion of this question in textbooks and treatises is not in the beginning, as the first and foremost question of the discipline, but after the discussion of the sources of international law – and not only after, but immediately after. The consensus that exists among international legal scholars on this issue can be characterized as no less than remarkable: practically uniformly, practically in every textbook of international law, the discussion of sources of international law precedes the discussion of the relation between international and municipal law, and it does not simply precede but precedes immediately; no other topic can be discussed between these two; they must be bound together as if one could not be discussed 20 See, e.g., Luigi Ferrari-Bravo, ‘International Law and Municipal Law: The Complementarity of Legal Systems’, in R. Macdonald & D. Johnston (eds.), The Structure and Process of International Law: Essays in Legal philosophy, doctrine and theory (Nijhoff: The Hague, 1983) 715: ‘About a century ago, legal scholars started discussing the relationship between international and municipal law; better, they “discovered” the problem. Such discussion became intense in the period after World War I and continued so until World War II. Supporters of the so-called “monistic” approach as well as those advocating the “pluralistic” one were often identified with a particular view of the political organization of the international community as a whole. This dispute between them became at times a bitter one, with reciprocal political accusations. In various countries, notably Germany and Italy, the issue was at times considered a central one of the entire legal philosophy relating to international relations, and the amount of international literature grew accordingly. … This “war of religion” started to cool down in the 1950s with a sharp decline of scholarly contributions to the subject matter.’ For further discussion see Heiskanen, International Legal Topics, supra note 6, at 1-4 and accompanying references. 21 Heiskanen, International Legal Topics, supra note 6, at 5-36.

Death of the Layman 247 __________________________________________________________________ without the other. As if they were – literally – an odd couple, one always taller and higher than the other, one clearly the master and the other immediately following, pliant and compliant, as a fateful follower, like a beggar – begging, begging the question, that is, itself, but at the same also begging for recognition as the preliminary question of the whole discipline of international law. This odd sequencing – this familiar dialectic of master and slave – is easily verifiable as it is visible in the tables of contents of practically all standard textbooks and treatises, almost without exception.22 While the rhetoric of the sources of international law – the master topic of international law – is a relatively recent formation, its status as the first topic of the discipline is now firmly established and, as David Kennedy notes, is so well developed that ‘further commentary seems unnecessary.’23 The function and importance of sources rhetoric is twofold. First, it provides international law with a sense of normative authority. This it does by focusing on the formal and abstract limits of international jurisdiction rather than on its substance. By focusing on international law’s formal and abstract boundaries, sources rhetoric establishes international law as an intellectual discipline without prejudging its normative substance – i.e. by suspending the discussion of substantive issues of international law – and thus leaves room for disagreement on these issues. In other words, by suspending the discussion of substantive issues, it enables consensus to emerge among international legal scholars on the boundaries of the discipline – as these boundaries are formal and abstract, they are without prejudice to substance. The sense that hierarchy needs explaining, like the sense that the abstract boundaries of enumerated sources need elaboration, reveals the shared sense that sources discourse is meant to delimit abstractly and authoritatively the norms which bind states in such a way that they might remain free to establish and disagree about the content of those norms as their interests or a natural order might dictate. Discussions of both the extent and hierarchy of sources produce doctrines which do not rely on the content of the norms whose source they identify. Each of these types of discussion suggests that the problem which sources doctrine addresses is the abstract definition of the authoritative set of norms binding states.24

Apart from normative authority, sources rhetoric also provides international law with a sense of positivity – a sense of a law that actually exists, and not only in philosophy and literature, but also in the ‘real world,’ out there. If international law has its own sources, then it must exist; it can be found in these sources, ready-made, Ibid. at 1-10 and the sources cited therein. David Kennedy, International Legal Structures (Nomos: Baden-Baden, 1987) at 12. 24 Ibid. at 29. 22 23

Finnish Yearbook of International Law (Vol. XV, 2004) 248 __________________________________________________________________ and it can resolve any difference, including the difference between international and municipal law, once applied. As a result of this displacement of the question and the rhetorical reordering of the discipline, the sense is created that the question of the relation of international and municipal law – which once was considered the central jurisprudential question of international legal theory – is not different from any other question of international law. The answer to this question, like to any other question of international law, can be found, if and when needed, in the sources of international law.25 How is this sense of positive identity created? It is created simply as a rhetorical – metaphorical – effect of the reordering of international legal topics. For if the discussion of the sources of international law in textbooks and treatises not only precedes, but immediately precedes, the discussion of the relation between international and municipal law, it follows – or rather, it appears to follow – that municipal law is subject to international law, and that it is the international law that provides the answer to this question and not municipal law. By implication, if it is international law that answers this question rather than municipal law, then international law surely must exist as a separate body of positive law, independent and separate from municipal law. While the existence of international law as a separate discipline is without prejudice to its normative substance – the answer provided by the sources to the question of the relation between international and municipal law may in any given instance be in favor of international law or municipal law, i.e. provide for the applicability of one or the other – the implication is, perforce, that like any other question of international law, the question of the relation of international and municipal law can be answered, and that the answer to this question can be found within the discipline of international law, in its sources. For the purposes of sources rhetoric it is not necessary to spell out or specify, what this answer is, in concrete normative terms; it is sufficient to suggest that the answer can be found, if and when needed, in the sources of international law.26 The effect of this rhetorical maneuvering is not limited to sources rhetoric; it animates and permeates all international legal topics. When confronted with the question – whether within the process doctrines or within the discussion of substantive international law – international legal scholarship perpetually defers the question. Indeed, the whole story of international law can effectively be read as a continuous displacement and deferral of this question, leaving it effectively open and hanging in the balance – as if the whole discipline of international law were

25 26

Heiskanen, International Legal Topics, supra note 6, at 37-42. Ibid. at 39.

Death of the Layman 249 __________________________________________________________________ suspended between the two poles of this question, leaving the body of international law in a hardly bearable suspension.27 But if the question of the relation of international and municipal law – this live controversy – is the key to understanding the whole discipline of international law, why must it be hidden and buried in textbooks in a place where its proper value as the preliminary question of the whole discipline – and its immense pedagogical and professional value – cannot be properly understood and appreciated? Why beg the question – and why force this question to beg for recognition like a beggar – if this question sheds light on the whole discipline of international law, if understanding it makes us better understand the tradition of international law – in short, if understanding it makes us better international lawyers? What is it that is so unsettling about the difference between international and municipal law that international legal scholarship must deny it recognition as the preliminary question of the whole discipline of international law? The problem with the question of the relation between international and municipal law is that, if this question is recognized, accepted and admitted as the preliminary question of the whole discipline of international law, one will also have to recognize, accept and admit that international law is not based on an agreement, a convention, a consensus. One would have to recognize, accept and admit that the whole discipline of international law is based on a difference, a difference of opinion, a scholarly dispute – a differend. In other words, one would have to recognize that international law is not positive in the radical sense of this term. One would have to recognize that there is, at the source of international law, no preliminary agreement, no preliminary consensus, but a difference, and therefore no positive certainty, or certainty of positive law. To recognize that international law is not based on a source of (positive) law but on a source of differences, of differends, of disputes, would be tantamount to recognizing that international law does not exist as a positive law, as an undertaking different from philosophy, literature and other forms of art. Nothing – no scholarly convention, no positive law – would constrain the exercise of creativity at the very source of law. International law – indeed all law – would be open to questioning, and open to challenge, to begin with, at the source. If this difference were admitted within the realm of law, what would then be the justification for distinguishing between the laws of literature and positive laws, or the laws of fiction – which themselves presumably must be fiction – and the laws of the ‘real world?’

27

Ibid. This is one of the themes of the book as a whole.

Finnish Yearbook of International Law (Vol. XV, 2004) 250 __________________________________________________________________

III The derogatory treatment of the difference between international and municipal law in international legal scholarship strikes us familiar – as if it were a translation into the language of international law of a more philosophical problematic. Since is it not the case that the resistance of international legal scholarship to the question of the relation of international and municipal (or national) law is analogous, if not identical, to the resistance of Western metaphysics to difference and the continuous movement of deferral – différance – as the ‘origin’ of language and signification?28 Is it not the case that, just as différance resists the metaphysical distinction between the sensible and the intelligible, the question or the controversy of the relation – or the difference – between international and national law resists the distinction between law and fact? [T]hat the difference marked in the [‘inter’] [‘differ( )nce’] between [international and national law] [the e and the a] eludes both [intelligence and sense] [vision and hearing] perhaps happily suggests that here we must be permitted to refer to an order which no longer belongs to [the order of facts] [sensibility]. But neither can it belong to [the order of law] [intelligibility], to the ideality which is not fortuitously affiliated with the objectivity of theorein or understanding. Here, therefore, we must let ourselves refer to an order that resists the opposition, one of the founding oppositions of [law] [philosophy], between [fact] [sensible] and [law] [intelligible]. The order which resists this opposition, and resists it because it transports it, is announced in the movement of différance (with an a) between two differences or two [laws] [letters], a différance which belongs neither to the [national law] [voice] nor [international law] [writing] in the usual sense, and which is located … between [domestic law] [speech] and [international law] [writing], and beyond the tranquil familiarity which links us to one or the other, occasionally reassuring us in our illusion that they are two.29

The difference between international law and national law – neither international law nor municipal law but the difference, the conflict of laws between them; the question or the issue of their relationship – is the différance – neither law nor fact, pending the determination of the applicable law; once this is determined, one will be the applicable law and the other simply a fact, but pending this determination, this difference cannot be settled and must be suspended – deferred – to begin with, at the source. It is for this reason – for this original deferral and suspension – that the particular question of the relation between international and national law cannot be See Jacques Derrida, ‘Différance’, in Jacques Derrida, Margins of Philosophy (Alan Bass trans., The Harvester Press: Brighton, 1986) at 1. 29 Ibid. at 6 (footnote omitted). 28

Death of the Layman 251 __________________________________________________________________ answered and mastered by any general code. Just as the movement of différance places limits on the mastery of signification, the difference between international and national law – and not only between international and national law, but also more generally, the differences, or the conflicts, between different (national) laws – places limits on the mastery of general legal codification, and marks those limits. I would say, first off, that différance, which is neither a word nor a concept, strategically seemed to me the most proper one to think, if not to master – thought, here, being that which is maintained in a certain necessary relationship with the structural limits of mastery – what is most irreducible of our ‘era.’30

The various attempts to answer the question of the relation between international and national law has not resulted in a mastery of this question; they have resulted in its continuing deferral and suspension. This difference between international and national law, the difference at the source, this founding dispute between the founding fathers of the discipline, is the law – to the extent, if any, that a difference can be in the first place. Since it cannot be law in the traditional sense of positive law. It cannot be positive because it is not settled, not agreed, not covered by a convention or consensus. It is not positive because it is a question, an issue – the source of law in the sense of absence [of law], the source in which the law is inscribed and out of which it is issued, promulgated and disseminated, in writing, issue after issue. It is the reading between the lines of writing, the source out of which the normative force of the law flows and issues, the source of the life of the law – the difference that keeps international law alive, without which it would die because there would be no issue, and die without an issue. The difference between international law and national law and between national laws in general, this difference, this ‘inter’ within the concept of law, is différance. It questions and destroys – deconstructs – the possibility of a unified or uniform concept of positive law, the law as it presently stands, and consequently its unquestioned normative authority: 1. One could no longer include [the ‘inter’] [différance] in the concept of the [rule] [sign], which always has meant the representation of a [positive law] [presence], and has been constituted in a system (of [law] [thought or language]) governed by and moving towards [positivity] [presence]. 2. And thereby one puts into question the authority of [positive law] [presence], or of its simple symmetrical opposite, absence or lack. Thus one questions the limit that has always constrained us, which still constrains us – as inhabitants of a [law] [language] and a system of thought – to formulate the meaning of [law] 30

Ibid. at 7.

Finnish Yearbook of International Law (Vol. XV, 2004) 252 __________________________________________________________________ [Being] in general as [positive] [presence] or [de ferenda] [absence], in the categories of [law or legality] [being or beingness] (ousia). Already it appears that the type of question to which we are redirected is, let us say, of the Heideggerian type, and that différance seems to lead us back to the [difference between law and fact] [ontico-ontological difference].31

There is no settled, positive law that is unaffected by the difference between international and national law and the conflict between different laws – the conflict of laws – in general. This difference is itself the ‘source’ of the very concept of law – without this difference, and more generally, without differences, differends, differences of opinions, conflicts and disputes – there would be no law. The difference between (public) international law and municipal law is simply an instance, or a trace, of these differences between different laws, these conflicts of laws. International law – in the wide sense of the term, i.e. in the sense of both public international law and conflict of laws, or private international law – is the arche-law, the common root of all laws. This arche-law, or this trace, has no determinable or fixed origin and no presence, i.e. no positivity. Where does [(public) international law] [writing] begin? When does [(public) international law] [writing] begin? Where and when does the [international law] [trace], [international law] [writing] in general, common root of [domestic law] [speech] and [public international law] [writing], narrow itself down into [‘public international law’] [‘writing’] in the colloquial sense? Where and when does one pass from one [international law] [writing] to another, from [international law] [writing] in general to [(public) international law] [writing] in the narrow sense, from the trace to the graphie, from one graphic system to another, and, in the field of a graphic code, from one graphic discourse to another, etc.? … The [international law] [trace] is nothing, it is not an entity, it exceeds the question What is? and contingently makes it possible. Here one may no longer trust even the opposition of fact and principle, which, in all its metaphysical, ontological and transcendental forms, has always functioned within the system of what is.32

Ibid. at 10 (emphasis in original). Jacques Derrida, Of Grammatology, supra note 8, at 74-75 (emphasis added). See also ibid. at 92: ‘Ever since [nationalization] [phoneticization] has allowed itself to be questioned in its origin, its history and its adventures, its movement is seen to mingle with that of science, religion, politics, economics, technics, law, art. The origins of these movements and these historical regions dissociate themselves, as they must for the rigorous delimitation of each science, only by an abstraction that one must constantly be aware of and use with vigilance. This complicity of origins may be called [international law] [arche-writing]. What is lost in that complicity is therefore the myth of the simplicity of origin. This myth is linked to the very concept of origin; to speech reciting the origin, to the myth of the origin and not only to myths of origin.’ 31 32

Death of the Layman 253 __________________________________________________________________ Just as there would no signification in language without differences, there would be no law without differences. These differences between the different laws – the laws that differ or the differing laws – is the différance, the mechanism that produces all other differences within the body of law: In a [law] [language], in the system of [law] [language], there are only differences. … What is written as différance, then, will be the playing movement that ‘produces’ – by means of something that is not simply an activity – these differences, these effects of difference. This does not mean that the différance that produces differences is before them, in a simple and unmodified – indifferent – [positivity] [present]. Différance is the nonfull, nonsimple, structured and differentiating [source] [‘origin’] of differences. Thus, the name [source] [origin] no longer suits it.33

It is not the rhetoric of the sources of international law, but this ‘original,’ unsettleable and unsettling difference between international and national law – this instance of differences between different laws or this particular instance of conflicts of laws – that is, in a different sense, the real ‘source’ of international law. Neither law nor a fact but the difference between them.

IV While the rhetoric of the sources of international law has managed to beg the question of the relation of international and municipal law and thereby create the impression that the positivity of international law is established, it has not managed to resolve the deeper identity crisis of international law in its relation to domestic law. Perhaps precisely because the solution provided by sources rhetoric is purely rhetorical – suppression of the question rather than a concrete normative solution – self-doubt has remained the dominant theme of international legal theory. All theorizing about international law still poses this question as one of the founding questions of the theory of international law: Is international law really law? Hegel, already, defined international law as ‘äusseres Staatsrecht,’34 but the theme has survived until recent times. H.L.A. Hart in his ‘Concept of Law,’ while arguing for a broader concept of law that would include international law, is nonetheless compelled to acknowledge that the case of international law presents particular problems:

33 34

Jacques Derrida, ‘Différance’, supra note 28, at 11 (emphasis in original). G.W.F. Hegel, Grundlinien der Philosophie des Rechts (Suhrkamp: Frankfurt am Main, 1976) at 497-503.

Finnish Yearbook of International Law (Vol. XV, 2004) 254 __________________________________________________________________ [T]hough it is consistent with the usage of the last 150 years to use the expression ‘law’ here, the absence of an international legislature, courts with compulsory jurisdiction, and centrally organized sanctions have inspired misgivings, at any rate in the breasts of legal theorists. The absence of these institutions means that the rules of states resemble that simple form of social structure, consisting only of primary rules of obligation, which, when we find it among societies of individuals, we are accustomed to contrast with a developed legal system. … These differences are indeed striking and the question ‘Is international law really law?’ can hardly be put aside.35

While Hart answers the question in the affirmative, his acceptance of international law as law remains subject to reservations. In developing his concept of law, he focuses almost exclusively on domestic law; the treatment of international law is limited to one single chapter – which, he emphasizes, is in fact generous: Though we shall devote to it only a single chapter some writers have proposed an even shorter treatment for this question concerning the character of international law. To them it has seemed that the question ‘Is international law really law?’ has only arisen or survived, because a trivial question about the meaning of words has been mistaken for a serious question about the nature of things: since the facts which differentiate international law from municipal law are clear and well-known, the only question to be settled is whether we should observe the existing convention or depart from it; and this is a matter for each person to settle for himself. But this short way with the question is surely too short. It is true that among the reasons which have led theorists to hesitate over the extension of the word ‘law’ to international law, a too simple, and indeed absurd view, of what justifies the application of the same word to many different things has played some part. The variety of types of principle which commonly guide the extension of general classifying terms has too often been ignored in jurisprudence. Nonetheless, the sources of doubt about international law are deeper, and more interesting than these mistaken views about the use of words.36

What are these ‘well-known facts’ that differentiate international law from municipal law; these ‘deeper’ sources of doubt? Hart identifies two of them: We shall consider two principal sources of doubt concerning the legal character of international law and, with them, the steps which theorists have taken to meet these doubts. Both forms of doubt arise from an adverse comparison of international law with municipal law, which is taken as the clear, standard example of what the law is. The first has its roots deep in the conception of law as fundamentally a matter of orders backed by threats and contrasts the character of the rules of international law with those of municipal law. The second form of 35 36

H.L.A. Hart, The Concept of Law (Oxford University Press, 1961) at 209 (emphasis added). Ibid. at 209-10.

Death of the Layman 255 __________________________________________________________________ doubt springs from the obscure belief that states are fundamentally incapable of being the subjects of legal obligation, and contrasts the character of the subjects of international law with those of municipal law.37

The first ‘form of doubt’ is related to a defect routinely noted in textbooks of international law and scholarly writings – the absence from the system of international law of centrally organized sanctions. This lack is seen as one point of ‘adverse comparison with municipal law, the rules of which are taken to be unquestionably “binding” and to be paradigms of legal obligation.’38 In seeking to give this argument ‘the benefit of every doubt,’ Hart explores the facts of the international system. He agrees with the critics and acknowledges that the two attempts to establish a centralized sanctioning system in international law have fallen short of making international law comparable to domestic law. Neither Article 16 of the Covenant of the League of Nations nor Chapter VII of the United Nations Charter has managed to introduce into international law ‘anything which can be equated with the sanctions of municipal law.’39 Given the structural weaknesses of the international system – in particular the right of veto of the permanent members of the Security Council – the law enforcement provisions of the Charter are likely to be paralyzed by the veto and ‘must be said to exist only on paper.’40 The centralized sanctioning system of international law has remained pure writing, existing only on paper; there is no system one can speak of. The second form of doubt identified by Hart relates to state sovereignty. How can a state, which is itself sovereign and as such a subject of law, be also subject to law, specifically in its relations with other states? As Hart acknowledges, this doubt, or source of skepticism, is ‘even more extreme than the objection that international law is not binding because it lacks sanctions.’41 Hart explores the various theories that have sought to answer this question, including ‘voluntarist’ theories, or theories of ‘auto-limitation,’ which have sought to reconcile state sovereignty with the existence of binding international law by treating international legal obligations as self-imposed, or arising out of a promise. Hart acknowledges that these theories may have a point, but notes that ‘this could only be the case if the rule that promises, etc., create obligations is applicable to the state independently of any promise.’ 42 Nor do the facts support the autolimitation theory – in many instances, like in the case of

Ibid. at 210-11 (emphasis in original). Ibid. at 212. 39 Ibid. 40 Ibid. at 212. 41 Ibid. at 215. 42 Ibid. at 220 (emphasis in original). 37 38

Finnish Yearbook of International Law (Vol. XV, 2004) 256 __________________________________________________________________ new states – international obligations appear to arise and bind the state without its specific consent, i.e. without its explicit sovereign consent to be bound.43 Hart concludes that while international law may be considered law because of the substantive similarities between the rules of international law and those of domestic law, it is obviously not as advanced as municipal law; it does not constitute a legal system but only a set of rules. In form, although not in substance, international law resembles a simple regime of primitive law, or a regime of law that exists without any ‘basic norm’ and therefore falls short of forming a system of law. There is indeed something comic in the efforts made to fashion a basic rule for the most simple forms of social structure which exist without one. It is as if we were to insist that a naked savage must really be dressed in some invisible variety of modern dress. … Again once we emancipate ourselves from the assumption that international must contain a basic rule, the question to be faced is one of fact. What is the actual character of the rules as they function in the relations between states? Different interpretations of the phenomena to be observed are of course possible; but it is submitted that there is no basic rule providing general criteria of validity for the rules of international law, and that the rules which are in fact operative constitute not a system but a set of rules, among which are the rules providing for the binding force of treaties. … Perhaps international law is at present in a stage of transition towards acceptance of this and other forms which would bring it nearer in structure to a municipal system. If, and when, this transition is completed the formal analogies, which at present seem thin and elusive, would acquire substance, and the skeptic’s last doubts about the legal ‘quality’ of international law may be laid to rest. Till this stage is reached the analogies are surely those of function and content, not of form.44

International law is thus not a full-fledged, mature legal system; it is underdeveloped, a work-in-progress, in form (although not in substance) primitive law. It constitutes a simple set of rules and not a system of rules. There can be no system because there is no basic norm. The attempts to fashion a basic norm for international law is as comic ‘as if we were to insist that a naked savage must really be dressed in some invisible variety of modern dress.’45 International law is thus, in reality, naked like a savage; unlike the emperor of domestic law, she has no clothes. What is it that is so primitive about the lack of a basic norm? Or, in other words, what is it that makes a law that lacks a basic norm primitive?

Ibid. at 220-21. Ibid. at 230-31 (emphasis in original). 45 Ibid. at 230 (emphasis added). 43 44

Death of the Layman 257 __________________________________________________________________ It is the lack of a taboo: like nakedness is not a taboo to a savage, the absence of a basic norm is not a taboo to international law.46 Unlike domestic law, international law has no taboo. And since there is no taboo, there can be no sense of violation of a taboo – where there is no taboo, there can be no violation. In the absence of a taboo, states can behave under international law freely, without any sense of embarrassment, without any sense of shame of the use of their naked powers, as if they were still in a state of nature. This does not mean that there are no legal rules in international law; it simply means that the violation of these rules is not a taboo. But if this is the nature of state in international law – if international law is still in a state of nature – how is it different from the nature of state in domestic law? Is there, as a matter of fact, any difference? How is the difference between international and domestic law created? According to Hart, the difference between them is not a matter of substance; it is a matter of form only. This formal difference is not seen, and cannot be seen, precisely because it is formal – because it is enveloped in the emperor’s invisible clothes. But although it cannot be seen, it is this formal, invisible difference – this veil or this hymen – that establishes the difference between raw nakedness and invisible clothing – the ‘invisible variety of modern dress.’ 47 The invisible inscription that this formal difference hides – envelopes – in its clothing, in the body of its text, is the original si(g)n, the first fiction and the first writing – the bold and revealing statement that in truth, in reality, there is no difference between international and domestic law. The difference between them does not exist in reality; it is a matter of fiction. Thus the formal difference between international and municipal law not only hides the truth by establishing a difference that does not exist in reality; it also exposes the truth by revealing that this difference does not exist in reality. The first truth is thus iconographic: it is first inscribed in the form of fiction and then revealed in writing. Fiction both hides and reveals the reality – and thus produces it by 46 Sigmund Freud, Totem and Taboo (A.A. Brill trans., Vintage Books: New York, 1918) at 26-97 (discussing the definition of taboo as an embodiment of opposites – as an object that is both sacred and profane). 47 Hart, The Concept, supra note 35. For an analysis of the concept of veil or hymen – a transparent, formal difference, or a difference without any sensible or visible difference – see Jacques Derrida, ‘The Double Session’, in Jacques Derrida, Dissemination, supra note 13, at 173, 212-13: ‘[T]he hymen, the confusion between the present and the nonpresent, along with all the indifferences it entails within the whole series of opposites …, produces the effect of a medium (a medium as element of enveloping both terms at once; a medium located between the two terms). It is an opposition that both sows confusion between opposites and stands between the opposites “at once.” What counts here is the between, the in-between-ness of the hymen. The hymen “takes place” in the “inter-,” in the spacing between desire and fulfillment, between perpetration and its recollection. … The hymen is thus a sort of textile.’ (emphasis in original)

Finnish Yearbook of International Law (Vol. XV, 2004) 258 __________________________________________________________________ revealing itself as fiction. Truth is the creation of fiction. It would not exist without fiction.

V If the difference between international and municipal law is neither a matter of law nor a matter of fact, but rather a matter of form, i.e. fiction, what are the consequences of this iconographic revelation in terms of the concept of law? In order to answer this question, one will have to revert to the formal criteria that create the difference between international and municipal law. For if international law is characterized by what it is not – by a lack or absence – rather than by what it is, then – assuming that the difference between international and municipal law is a matter of fiction – municipal law must be characterized, in reality although not in form, by an identical or analogical lack or absence. Thus, by examining international law – or rather, what international law lacks, what it is missing – we will also be examining municipal law. What international law lacks, domestic law also lacks – in reality (although not in form, i.e. as a matter of fiction). According to Hart, there are two formal criteria that create the difference between international and municipal law: the absence of a centralized sanctioning system; and the absence of a basic norm. How are these two formal differences established? They must be established by fiction, i.e. by a narrative. According to the conventional narrative, domestic law is a mature system of law because, unlike primitive law, it imposes the prohibition of self-help as its basic norm. The function of the centralized sanctioning system is, precisely, to maintain and guarantee the exclusion of self-help – to ensure that self-help remains outside the system, banned and ostracized. International law remains deficient and questionable, i.e. primitive, as a system of law because, unlike domestic law, it has not been able to establish this basic norm. In a decentralized system such as international law, self-help cannot be definitively or systematically excluded – in the last instance, in an extreme case where all other avenues, including diplomacy and other peaceful means have been exhausted, self-help remains the sole means to enforce one’s legal rights. While international law in principle advises against selfhelp, it cannot systematically – as a legal system – sanction non-compliance. As a result, self-help keeps returning as the ultimate option in each case of institutional failure, or the failure of collective enforcement – in particular for purposes of selfdefense, but also for purposes of law enforcement. 48 See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports (1996) 1, at 30: ‘[T]he Court cannot lose sight of the fundamental right of every State to survival, and thus its right to

48

Death of the Layman 259 __________________________________________________________________ Why is self-help a primitive means of law enforcement? Self-help is primitive because it is too uncertain, too ambivalent in its consequences, to be able to sustain a legal order. Self-help is pharmakon – it is both a legal remedy and a political poison. 49 It is a legal remedy to the extent that recourse to self-help results in effective enforcement of international law – to the extent that the state seeking to compel compliance by way of self-help manages to compel the state that has failed to voluntarily comply with its international obligations to comply with those obligations. But self-help is also dangerous, and not only because it allows each state to take the law in its own hands and thus suspends any attempt to establish a centralized sanctioning system. The danger with self-help is that, again in the absence of central sanctioning power, there is no guarantee that the state that seeks to enforce international law will in fact prevail in the sanctioning process – that it is the sanctioning power, and not the target state, that prevails in the end of the process. In other words, self-help provides no guarantee that the rule of law prevails over the law of rule. Such a guarantee can only be provided by a centralized sanctioning system.50 As recounted by Hart, modern international law has made two sustained efforts to replace the international law of rule with the international rule of law – first, in the form of Article 16 of the Covenant of the League of Nations and second, in the form of the collective security system embodied in Chapter VII of the United Nations Charter. Both of these attempts ultimately failed. Just as the sanctioning system of the Covenant of the League of Nations proved less than automatic and ultimately collapsed, the collective security system envisaged in Chapter VII of the Charter, and in particular in Article 43, never materialized.51 The self-defence, in accordance with Article 51 of the Charter, when its survival is at stake. Nor can it ignore the practice referred to as “policy of deterrence,” to which an appreciable section of the international community adhered for many years. … Accordingly, in view of the present state of international law viewed as a whole, … the Court is led to observe that it cannot reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defence, in which its very survival would be at stake.’ 49 Pharmakon is one of many deconstructive concepts that harbors opposite meanings in the body of its text. Sanction is literally a pharmakon as it means both acceptance and punishment. For discussion of pharmakon see Derrida, Dissemination, supra note 13. 50 Heiskanen, International Legal Topics, supra note 6, at 294-305. 51 Article 43 of the Charter provides: 1. All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security. 2. Such agreement or agreements shall govern the numbers and types of forces, their degree of readiness and general location; and the nature of the facilities and assistance to be provided.

Finnish Yearbook of International Law (Vol. XV, 2004) 260 __________________________________________________________________ member states never agreed to transfer permanent authority over their military forces, or over a portion of them, to the United Nations. As a result, the United Nations was never able to create its own military force, and Article 43 of Charter remains a dead letter, an arrangement that exists only on paper. As a consequence of this aborted birth, or death at birth, international law has remained weak, a law without central authority, a law without centralized sanctioning powers. It is for this reason that international law remains a savage: in international law the violation of the fundamental prohibition of the law – recourse to self-help – is not a taboo. It may be ill-advised, but it is not a taboo – the violator is not socially ostracized. There is no social organization to sanction self-help; there is no centralized sanctioning system, no totem pole standing in the middle of the body of law that would represent and embody the taboo and foretell the consequences of its violation.52 It is this lack, this missing piece in the middle of the body of the law, that explains the weakness of international law’s sanctioning power and its inability to sanction self-help. In other words, international law is weak because it has a distinctly feminine character; its body of law is characterized by lack rather than being, absence rather than presence, difference rather than identity.53 Unlike civil law, international law has no taboo and therefore no story to tell – no story that would foretell the consequences of its violation. The placement of the rhetoric of the sources of international law in textbooks and treatises before the question of the relation between international and municipal law is a feeble attempt to fabricate such a story, an attempt to erect the prohibition before the law. The story of the Law – the story of the prohibition before the Law – was foretold by Kafka in his Vor dem Gesetz. Before the Law stands a doorkeeper. To this doorkeeper there comes a countryman and prays for admittance to the Law. But the doorkeeper says that he cannot grant admittance at the moment. The man thinks it over and then asks if he will be allowed in later. ‘It is possible,’ says the doorkeeper, ‘but not at the moment.’ Since the gate stands open, as usual, and the doorkeeper steps to one side, the man stoops to peer through the gateway into the interior. Observing that, the doorkeeper laughs and says: ‘If you are so drawn to it, just 3. The agreement or agreements shall be negotiated as soon as possible on the initiative of the Security Council. They shall be concluded between the Security Council and groups of Members and shall be subject to ratification by the signatory states in accordance with their respective constitutional processes. 52 See Freud, Totem, supra note 46, at 5 (discussing the two features of a totem: the sacred obligation not to kill (or destroy) the totem, and the automatic punishment that follows any violation of the prohibition). 53 See Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (Cambridge University Press 2001).

Death of the Layman 261 __________________________________________________________________ try to go in despite my veto. But take note: I am powerful. And I am only the least of the doorkeepers. From hall to hall there is one doorkeeper after another, each more powerful than the last. The third doorkeeper is already so terrible that even I cannot bear to look at him.’ These are difficulties the countryman has not expected; the Law, he thinks, should surely be accessible at all times and to everyone, but as he now takes a closer look, at the doorkeeper in his fur coat, with his big sharp nose and long, thin, black Tartar beard, he decides that it is better to wait until he gets permission to enter. The doorkeeper gives him a stool and lets him sit down at one side of the door. There he sits for days and years. He makes many attempts to be admitted, and wearies the doorkeeper by his importunity. The doorkeeper frequently has little interviews with him, asking him questions about his home and many other things, but the questions are put indifferently, as great lords put them, and always finish with the statement that he cannot be let in yet. The man, who has furnished himself with many things for his journey, sacrifices all he has, however valuable, to bribe the doorkeeper. That official accepts everything, but always with the remark: ‘I am only taking it to keep you from thinking you have omitted anything.’ During these many years the man fixes his attention almost continuously on the doorkeeper. He forgets the other doorkeepers, and this first one seems to him the sole obstacle preventing access to the Law. He curses his bad luck, in his early years boldly and loudly, later, as he grows old, he only grumbles to himself. He becomes childish, and since in his yearlong contemplation of the gatekeeper he has come to know even the fleas in his fur collar, he begs the fleas as well to help him and to change the doorkeeper’s mind. At length his eyesight begins to fail, and he does not know whether the world is really darker or whether his eyes are only deceiving him. Yet in his darkness he is now aware of a radiance that streams inextinguishably from the gateway of the Law. Now he has not very long to live. Before he dies, all his experiences in these long years gather themselves in his head to one point, a question he has not yet asked the doorkeeper. He waves him nearer, since he can no longer raise his stiffening body. The doorkeeper has to bend low towards him, for the difference in height between them has altered much to the countryman’s disadvantage. ‘What do you want to know now?’ asks the doorkeeper. ‘You are insatiable.’ ‘Everyone strives to reach the Law,’ says the man, ‘so how does it happen that for all these many years no one but myself has ever begged for admittance?’ The doorkeeper recognizes that the man has reached his end, and to let his failing senses catch the words roars in his ear: ‘No one else could ever be admitted here, since this gate was made only for you. I am now going to shut it.’54

The story foretells the countryman’s – the layman’s – problem with the Law. The Law sanctions both compliance and non-compliance. The layman will not gain access to the Law by complying; this effectively amounts to begging and will only 54 Franz Kafka, ‘Before the Law’, in Franz Kafka, The Complete Stories (Schocken Books: New York, 1971) at 3-4.

Finnish Yearbook of International Law (Vol. XV, 2004) 262 __________________________________________________________________ reduce his chances – make him smaller in the eyes of the Law, as time goes by. The Law is indifferent to compliance – if the layman complies with the Law, there is no non-compliance and therefore no need to gain admission to the Law. The other alternative – taking the Law in one’s own hands and challenging the doorkeeper – would not help either; it would effectively amount to self-help, which is severely sanctioned by the Law. The layman has therefore only two options: either to comply and keep begging, and see his access suspended ad infinitum, or to take the law in his own hands and face the consequences. In other words, the layman’s choice is that between compliance and non-compliance with the taboo – the prohibition that stands in front of the Law; the basic norm or basic code of the Law that sanctions compliance and that also sanctions non-compliance, simultaneously and without difference. Is there any way out of this double bind? There is – although not for the layman. Kafka’s prophecy only foretells the options available to the countryman – the layman (profane). The layman has no direct access to the Law. In order to gain direct access to the Law, the layman would have to become a lawyer; in other words, a doorkeeper. Since the lawyer is a doorkeeper and the doorkeeper is a lawyer: as a doorkeeper, the lawyer’s function is to ensure that only the lawyers, or the professionals – those who profess their faith in the Law and confess it by excluding the laymen – les profanes – from the Law – are allowed to appear in front of the Law. There is no universal access to the Law: only the lawyers, the professionals of the Law, are authorized to speak, authoritatively, of the Law, represent the layman before the Law, and speak on his behalf for the Law. There is no universal access to the Law. The layman is admitted before the Law only if he first professes his faith in the Law – only if he first is initiated as a lawyer, as a professional (un initié) – and then confesses his profession by excluding (other) laymen. But conversely, as soon as the layman is initiated as a lawyer, he no longer qualifies as a layman. The birth of the lawyer is the death of the layman. This is in effect what Kafka’s prophecy foretells us, quite literally. In the end, the layman dies, before the Law, in front of the bar, without admission to the bar. He must die, in order to gain admission. The death of the layman is the end of the story and the beginning of the Law. This is where Derrida, the layman, in the end left us, before the Law. In his reading of Kafka’s Vor dem Gesetz as well as in his last interview.55 Since the prophecy foretold by Kafka is not a prophecy of the law to come – a story of the future law. Nor is it a story of positive law, or the law as it presently stands. It is a history – not a story of the layman and the lawyer in front of the Law but before the See Jacques Derrida, ‘Before the Law’, in Derrida, Acts of Literature (Derek Attridge ed., Routledge: New York, 1992) at 181.

55

Death of the Layman 263 __________________________________________________________________ Law (vor dem Gesetz), i.e. a difference in terms of time and not in terms of distance. It is a story of medieval law – a story of the law in the era of darkness, in the era before the Enlightenment – indeed, right before the dawn of the Enlightenment: in the end, towards the end of his days, the layman finally becomes aware of the radiance – the light of the Enlightenment – that streams ‘inextinguishably from the gateway of the Law.’ But it was too late for the layman to see the light; he died just before it dawned to him that he would gain access to the Law only if he made a deal with the doorkeeper and retained him as his lawyer. This deal was right there, waiting wide open like the gate, waiting to be closed. As it was. Since in the end, this deal was closed. But this is another story; a story of positive law, or the law as it presently stands. It is this story: it is this deal, the unholy alliance of the countryman and the doorkeeper, this holy marriage between the layman and the lawyer – that is the founding pact, the contrat social – of the modern, enlightened concept of civil law. Under this pact, both the layman and the lawyer make a common promise, a compromis, i.e. a compromise, in which both waive their pure, absolutist positions and obtain a special privilege in return: while the layman waives his right of direct access to the law, he reserves exclusive access to lawmaking – the exclusive right of the people to legislate by themselves for themselves; and while the lawyer reserves the exclusive right to authoritatively interpret and apply the law, he waives his right to claim any professional privilege in law-making because of his professional expertise. As a result of these exclusions, the layman manages to ensure that the substance of the law will reflect and embody the common sense of the people, while giving up his right to say – authoritatively – what the law he himself enacted in fact means. Similarly, the lawyer ensures that the interpretation and application of the law will remain a rational and technical, i.e. professional exercise, while giving up his right to participate in law-making in his professional capacity – including in the course of his professional interpretation and application of the law. This pact, this compact of reciprocal privileges and exclusions is the founding pact of the civil society; the compact founding code of civil law. As such, it also embodies the profound taboo of modern, enlightened law: it establishes the Law both as profane (it can only be created by the layman and not by a lawyer) and as sacred (it is directly accessible only to the lawyer and not to the layman). This reciprocal promise of the layman and the lawyer not to interfere with the domain reserved exclusively to the other, while reserving exclusive access to one’s own reserved domain, covers only the relationship between the layman – the people – and the lawyer – the legal profession, i.e. it only covers the civil society that it itself creates. The prince – the state – is not a party to this pact. The state remains a third party, but nonetheless a party that is not entirely disinterested in the legal arrangements of the civil society. The state is an interested third party, the guarantor

Finnish Yearbook of International Law (Vol. XV, 2004) 264 __________________________________________________________________ of the pact: it is the state that maintains the centralized sanctioning system that guarantees the binding force of the social contract – and thus the rule of law. The state has an interest in maintaining the social contract and ensuring its binding force, since the deal between the people and the legal profession sanctions the exclusion of self-help and thus does not threaten the state’s sovereign authority in any way; quite the contrary, the exclusion of self-help confirms and legitimates this authority by centralizing and monopolizing all sanctioning power in the hands of the state. It is for this reason that the state agrees to become the guarantor of the social contract: the arrangement sanctions and establishes the state’s natural monopoly and exclusive sovereign authority in law enforcement. As a third party to the social contract, the state remains outside the civil society and outside the civil law established by this pact. While the state agrees to guarantee the binding force of the pact and thus to maintain the rule of law, the legal obligation created by this guarantee is based on a sovereign consent and thus has the legal nature of a unilateral promise; the social contract does not create any reciprocal rights and obligations for the state vis-à-vis the parties to the contract. The state’s exclusive sovereign authority in law enforcement and the unilateral nature of its commitment to the rule of law is not only the conceptual root cause of the deeprooted distinction in civil law between private (or civil) and public law; it is also the root cause of the civil law’s preoccupation with constitutionalism. The fundamental legal arrangements of the civil society – the social contract and the state’s unilateral commitment to the rule of law – do not prevent the possibility of abuse by the state of its sovereign authority; there is no state above the state, no super-state, to sanction the state if it fails to comply with its unilateral promise to enforce the rule of law. The story of the development of civil law over the past two hundred years is the story of the sustained effort made by the civil society to bring the conduct of the affairs of the state under the rule of law – to establish a Rechtstaat (Etat de droit) where also the state, and not only the members of the civil society, is bound by the law. The concept of Rechtstaat is the embodiment of this conceptual project of autolimitation; of this attempt to clothe the state in the form of law by bringing it under a formal basic norm (Grundnorm). The task faced by the civil society in its effort to bring the state under the rule of law in the conduct of its domestic affairs is similar to the attempts made by international legal scholars to bring the state under the rule of law in the conduct of its foreign affairs. In this sense there is no real difference between international and domestic law: both are engaged in a similar effort to contain the state’s monopoly to power and its exclusive sovereign authority to maintain the rule of law. There is no real difference between the binding force of constitutional law and international law: in either case, there is no guarantor of the state’s promise to comply with its legal obligations; like the constitutional arrangements of the Rechtstaat, the state’s

Death of the Layman 265 __________________________________________________________________ conduct of its foreign affairs falls outside the social contract. The difference between constitutional law and international law is only formal. While the basic norm of the constitution brings the state formally under the rule of law, there is no higher normative authority, no super-state, that can guarantee the state’s compliance with the rule of law. Like international law, constitutional law is in reality based solely on the state’s unilateral consent to comply with the law. The constitutional arrangements of the state only barely hide the actual state of affairs: in the conduct of its affairs, and in particular in the conduct of its foreign affairs, the state is still the prince. Like the prince, the state remains free to conduct its foreign affairs as it sees fit; without any constitutional constraints. While the state may agree in its constitution to comply with its international obligations, such commitments are irrelevant under international law. They create no obligations vis-à-vis other states, nor can these other states invoke them vis-à-vis the former state. The province of foreign affairs covers, in particular, decisions involving war and peace. While the prince may or may not seek the consent of his people before going to war, and while he may seek legal advice from his lawyers, under international law he has no obligation to do so – he is not a party to the social contract, nor are the state’s constitutional arrangements, which may or may not require such consent, of any relevance under international law. In the conduct of his foreign affairs, the prince is, in essence, outside the law – naked power, uncovered by the invisible clothing of his constitutional promise to comply with the rule of law. Herein lies the primitive nature of international law: the state’s conduct of its foreign affairs falls not only outside the social contract but also outside the constitutional basic norm. The conduct of foreign affairs remains – as before, i.e. as before these fundamental arrangements of the modern law – the exclusive privilege of the prince. International law is still primitive – or rather, medieval law. In other words, international law is still before the Law. It is still in history. It is history. It is a story that never became true, a future that never arrived.

VI This is where Derrida’s call for a new concept of international law intervenes. While he left us prematurely, before the Law, his call for a new European concept of international law still resonates forcefully and reaches us from before the Law, beyond the concept of modern law, calling for repetition: L’Europe se trouve sous l’injonction d’assumer une responsabilité nouvelle. Je ne parle pas de la communauté européenne telle qu’elle existe ou se dessine dans sa majorité actuelle (néolibérale) et virtuellement menacée de tant de guerres internes, mais d’une Europe à venir, et

Finnish Yearbook of International Law (Vol. XV, 2004) 266 __________________________________________________________________ ce qui se cherche. En Europe (‘géographique’) et ailleurs. Ce qu’on nomme algébriquement ‘l’Europe’ a des responsabilités à prendre, pour l’avenir de l’humanité, pour celui du droit international – ça c’est ma foi, ma croyance. Et là, je n’hésiterai pas à dire ‘nous les Européens.’ Il ne s’agit pas de souhaiter la constitution d’une Europe qui serait une autre superpuissance militaire, protégeant son marché et faisant contrepoids aux autres blocs, mais d’une Europe qui viendrait semer la graine d’une nouvelle politique altermondialiste. Laquelle est pour moi la seule issue possible. Cette force est en marche. Même si ses motifs sont encore confus, je pense que plus rien ne l’arrêtera. Quand je dis l’Europe, c’est ça: une Europe altermondialiste, transformant le concept et les pratiques de la souveraineté et du droit international.56

In his call for a new Europe and a new European concept of international law, Derrida not only called for a transformation of the concept of international law; he also remained standing right in front of it, without seeing it: Quand je dis l’Europe, c’est ça: une Europe altermondialiste, transformant le concept et les pratiques de la souveraineté et du droit international. Est disposant d’une véritable force armée, indépendante de l’OTAN et des USA, une puissance militaire qui, ni offensive, ni défensive, ni préventive, interviendrait sans tarder au service des résolutions enfin respectées d’une nouvelle ONU (par exemple, de toute urgence, en Israël, mais aussi ailleurs).57

This is a call for a transformed use of force in international law – neither offensive, nor defensive, nor preventive. In other words, use of force not for the purpose of self-help or self-defense, or domination, but for the purpose of helping the other. In other words, unselfish use of force, use of force in a professional manner, without metaphysical or political passion or emotion, use of force without the force of fiction, without prophecy. Use of force for clinical purposes, based on a technical, professional diagnosis of the problem at hand – in other words, treating self-help and other forms of international violence as a crisis, or as a disease, rather than as a moral wrong that must be severely punished and sanctioned. Also de-centralized use of force – use of a force that would be available on an ad hoc basis, as necessary. In other words, a decentralized force that is decentralized at the source, without ever having been first centralized, i.e. without having degraded from any original, metaphysical whole or integrity. How would such a future decentralized, professionally managed international crisis clinic look like? The future is already here; it has already arrived. There is no primitive totem in international law – no centralized sanctioning system; the two attempts to create one have already failed. Just as Article 16 of the Covenant of the League of Nations was 56 57

Le Monde, 18 Aug. 2004. Ibid.

Death of the Layman 267 __________________________________________________________________ honored mainly in breach, Article 43 of the United Nations Charter has never been applied. Article 43 stands as a symbol of our failed attempt to set up a totem, to make international law look like our image of domestic law – a social contract guaranteed by an interested third party, a global sovereign. Article 43 of the Charter embodies the stillborn idea of an international centre around which international sanctioning powers would gather and assemble, to animate, i.e. to legitimate themselves, to dress themselves in the invisible clothing of the basic norm, ready for deployment as necessary to maintain the taboo, to sanction self-help, to punish the wrongdoer. But, as we all – including the laymen – know, this plan to create a centralized international military force to enable the Security Council to take military action on its own, as an interested third party and guarantor of the international legal order, never materialized.58 Article 43 remains dead letter, a symbol of an idea and of an ideal, of a future that never arrived because it was born dead, stillborn, and as such remains living proof of the arrival of a future international law – a law without a center. [The structure or the structurality of structure] has always been neutralized or reduced, and this by a process of giving it a center or of referring it to a point of presence, a fixed origin. The function of this center was not only to orient, balance and organize the structure – one cannot in fact conceive of an unorganized structure – but above all to make sure that the organizing principle of the structure would limit what we might call the play of the structure. By orienting and organizing the coherence of the system, the center of a structure permits the play of its elements inside the total form. And even today the notion of a structure lacking any center represents the unthinkable itself.59

The absence of an absolute prohibition of self-help is the other side of the coin of international law: a totem – a centralized system of sanctions – can exist only if it is supported by a taboo, by an absolute prohibition of self-help – and vice versa.60 While most international lawyers advise, in principle, against the use of self-help as a legal remedy, there is no formal prohibition of self-help in international law; on the contrary, use of force for purposes of self-defense is specifically authorized in

Article 42 of the Charter provides that ‘[s]hould the Security Council consider that measures provided for in Article 41 [economic sanctions] would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.’ 59 Jacques Derrida, ‘Structure, Sign and Play in the Discourse of the Human Sciences’, in Jacques Derrida, Writing and Difference (Alan Bass trans., The University of Chicago Press, 1978) at 278-79 (emphasis in original). 60 Freud, Totem and Taboo, supra note 46, at 5. 58

Finnish Yearbook of International Law (Vol. XV, 2004) 268 __________________________________________________________________ writing.61 There is therefore nothing in international law that prevents the realization of Derrida’s call for a new concept of international law: both sides of the coin are empty. There is neither totem nor taboo in international law; there is nothing that prevents the coinage of a new concept of international law – of a concept of international law as is – or rather, is as it is not, as a different law, as a law without a centralized sanctioning system and without absolute prohibition of selfhelp, as a law without a totem and without a taboo. 62 In a system without a totem there can be no taboo, no basic norm that is so fundamental, so central, to the existence of the system that its violation would shake the foundations of the whole system. The ‘system’ of international law is unshakable because it has no center, no basic norm, no foundation that would be so essential, so central and so fundamental to the system’s existence that it could not survive without it. In the absence of a centralized sanctioning system, international law is fragmented – deconstructed – to begin with, at the source: it has no metaphysical center, no metaphysical anchorage, no metaphysical h(e)aven. The lack of a centralized sanctioning system makes this bare truth fully visible to the naked eye; even a layman can see it: in international law, the state may, and often does, take the law in its own hands, without any automatic sanction or severe punishment. There is no metaphysical narrative, or metanarrative, no basic norm that would cover and hide this fundamental reality in its texture; no hidden message, no hidden meaning, no fundamental truth that could be revealed. The reality of international law is no revelation. There is no need for a lawyer to spell this out: the violation of international law is not absolutely prohibited. That there is no formal, absolute prohibition of self-help in international law does not mean that there is, in international law, a blanket authorization to engage in self-help – self-help remains, in principle, ill-advised in international law. Although there is no social contract in international law, nor a centralized sanctioning system to guarantee compliance, there is an emerging informal understanding, if not a new social deal, among professionals – and not only among legal professionals – which, while admitting self-help within the realm of law, retains the rational core of the exclusion of self-help, that is, its non-metaphysical, mundane sense – its sense as a problem.63 This new international law does not absolutely ban self-help, or strictly outlaw it, banish it outside the international community, expel it from the system or I.e. Article 51 of the United Nations Charter. For discussion of self-help see Heiskanen, International Legal Topics, supra note 6, at 296 (esp. note 78 and the sources cited therein). 62 In fact, this new concept is already out there, current, in circulation. See, e.g.,Veijo Heiskanen, ‘Introduction’, in Jean-Marc Coicaud & Veijo Heiskanen (eds.), The Legitimacy of International Organizations (United Nations University Press: Tokyo, New York & Paris, 2001) at 1. 63 See Veijo Heiskanen, ‘The Rationality of the Use of Force and the Evolution of International Organization’, in Jean-Marc Coicaud & Veijo Heiskanen (eds.), The Legitimacy, supra note 62, at 155-85. 61

Death of the Layman 269 __________________________________________________________________ ostracize it as an outcast. International law retains self-help within the system, not as a taboo that must be severely sanctioned, but as unadvisable, as unhelpful – as problematic, as a problématique – as a problem that must be dealt with. This rationale, or raison d’être, of the new international law – the admission of self-help within the system of international law under reservation, that is, as a problem, in order to be able to deal with it – remains mundane rather than onto-theological – void of any metaphysical or political passion. This descension of international law from its metaphysical heights, its soft landing on the face of the earth – its globalization or mondialization, or rather, this mundialization, of international law – is an effort to deal with the problem by dealing with it rather than by denying or banning it. For this new concept of international law, violent self-help – whether by a state, any other entity, or an individual – remains a problem that needs to be dealt with, but in a professional and technical manner rather than in a political, i.e. emotional or passionate manner. When faced with a difficult problem – and selfhelp is a problem par excellence, indeed, the problem itself – an expert or a professional knows that passion does not help. Indeed, a professional knows that, if one really wants to help, letting emotions and passions guide is not only unhelpful and unprofessional; it also multiplies the risk of failure. This is in particular the case with self-help, which, as a problem par excellence, can never be technically and professionally fully mastered. It cannot be fully mastered precisely because the one that one tries to help – the other – is engaged in self-help; in an emotional and passionate effort not only to help himself, but also to engage the one that seeks to help, to help himself. The more passionate this invitation is, the more difficult it is to resist and the more intense the temptation to reciprocate, to engage in self-help oneself. By the compelling force of its own logic, self-help tends to attract both sides in a reciprocal process of violent self-help – and therefore, by implication, in an unintended but unavoidable reciprocal recognition and legitimation of self-help itself, in flagrante.64

VII If these are the consequences of accepting international law as is or rather, as it is not, what are the consequences of this hypothetical endorsement – this signature under reservation – in terms of the concept of law in general? Would it not mean, in effect, the adoption of a more ‘civilized’ concept of law than the concept of 64 For the logic of war – violent self-help – see Carl von Clausewitz, On War (M. Howard & P. Paret trans., Princeton University Press, 1984). For discussion see Heiskanen, ‘The Rationality’, supra note 63.

Finnish Yearbook of International Law (Vol. XV, 2004) 270 __________________________________________________________________ modern law? Since in the end, is it not true that at the very core of the concept of modern law lies the fundamentally primitive system of the totem and the taboo? In the end, is it not true that in labeling international law as primitive, the concept of modern law only reveals its own (repressed) primitive core? Is it not implicit in the fundamental arrangements of the modern law – the social contract and the basic norm – that these arrangements are sustainable only if they are supported and animated by the fundamentally primitive ideas of absolute prohibition of self-help and centralized sanctioning powers – the primitive system of the totem and the taboo? Is it not the case that the characterization of self-help as a problem and its clinical treatment accordingly, as a social condition if not as a disease, is a more civilized approach than labeling the wrongdoer as an outlaw and a social outcast, or his severe sanctioning for the violation of the taboo? And finally, is it not the case that the characterization of self-help as a social problem – as a problem that must be dealt with in a professionally and technically competent manner while recognizing that, in many instances, the problem may be too serious or the disease too terminal to be fully mastered – is likely to be economically the more efficient and socially the more sustainable approach – at least in the long term – than engaging in an all-out war against the wrongdoer and thereby indirectly recognizing the legitimacy of his primal violence? Does one really have to ask? Since while a problem par excellence, self-help is only one of the many problems of international law. Therefore, what applies to self-help, should also apply, ex hypothesi, to other problems of international law – the treatment of these problems, precisely, as problems rather than as norm transgressions that must be severely sanctioned and punished. The regulatory philosophy of the new international law generally – and not only the regulation of the problem of self-help – should, ex hypothesi, be based on the (in theory) mundane but (in practice) more than ambitious goal of problem solution – solving global social, economic and environmental problems. Just as it is not necessary to erect a centrally organized sanctioning system to regulate the problem of self-help, it is no more necessary to establish a global legislator to regulate these other – no less serious – problems. Just as the centralization of international sanctioning powers serves no rational purpose, there is no rational need to establish a centralized legislature; it is, ex hypothesi, more rational, more effective and more sustainable to tackle the many global social, economic and environmental problems in their context, in the concrete context of each individual problem, rather than in the formal and abstract context of global legislation.65 For a tentative outline for global trade regulation see, e.g., Veijo Heiskanen, ‘The Regulatory Philosophy of International Trade Law’, 38 Journal of World Trade (2004) 1.

65

Death of the Layman 271 __________________________________________________________________ Is this a realistic utopia? Why not. Since again, as in the case of self-help, the future has already arrived – and if not only because there is effectively no choice. In the absence of a centralized global legislature, the international regulatory function remains ‘fragmented’ and ‘decentralized’ to begin with – without ever having been centralized or idealized and therefore by implication, without ever having degraded from its pure integrity – and can only be exercised in a multitude of contexts, outside a totalizing scheme, outside a context of all contexts. Every [rule] [sign], [legal or otherwise] [linguistic or nonlinguistic], [domestic] [spoken] or [international] [written] (in the current sense of this opposition), in a small or large unit, can be cited, put between quotation marks; in so doing it can break with every given context, engendering an infinity of new contexts in a manner which is absolutely illimitable. This does not imply that the mark is valid outside of a context, but on the contrary that there are only contexts without any center or absolute anchoring.66

If international regulatory function is exercised for purposes of problem-solution rather than for purposes of codification or universalization of political and metaphysical ideals, the birth of a new concept of international law also means, ex hypothesi, the birth of a new concept of democracy. In this new concept of democracy, the exercise of the regulatory function is no longer the exclusive privilege of the layman. Rather in this new universal – but not centralized or uniform – democracy there are only experts and professionals and no laymen. Since every layman – at least potentially – is not only a layman but also an expert and professional in his or her own right: in this new democracy, instead of exercising the regulatory function in their capacity as laymen – as representatives of certain metaphysical and political ideals – experts and professionals will be exercising their function in their capacity as experts and professionals, i.e. as representatives of their government, their organization, or their business, or their client, depending on the context. If the purpose of the regulatory function is problem solution rather than the realization of political and metaphysical ideals, there is no rational reason to believe that laymen would be better qualified to solve the many social, economic and environmental problems that we face today than experts and professionals. Why would they? If one were to tackle these problems seriously – i.e. in practice and not only in theory – common sense – which is always the common sense of the layman – must be replaced, ex hypothesi, by an enlightened expert opinion and the best professional judgment.67 Derrida, ‘Signature Event Context’, supra note 7, at 12. For discussion of this concept of cosmopolitan or technocratic democracy see Heiskanen, ‘Introduction’, supra note 62, at 8-14.

66 67

Finnish Yearbook of International Law (Vol. XV, 2004) 272 __________________________________________________________________ Would this not be ‘anti-democratic?’ Not necessarily, or rather, quite the contrary. First, there is no pure layman; every layman is, at least potentially, also an expert or professional in his or her own right. If this is not yet the case in reality, is it not more enlightened as a global goal of education to strive to make everybody an expert or a professional in his or her own right rather than leave as many as possible without professional education, as pure laymen? This would, and should, not mean making every layman a pure professional or expert; only so to the extent that they act in that capacity. Nor does the delegation of the regulatory function to experts and professionals necessarily result in the creation of an exclusive club of experts and professionals who are entitled to participate to the exclusion of others, i.e. to the exclusion of other experts and professionals. Quite the contrary, in the absence of a centralized global legislature, the delegation of the regulatory function from laymen to experts and professionals opens the door, ex hypothesi, for every expert and professional to participate in the exercise of the regulatory function. As this function is not exercised in a centralized and therefore abstract manner but in a concrete context, there is no expert or professional that is a priori excluded from the exercise of this function. Thus, it is arguable that such a decentralized ‘system’ is in fact more democratic than the centralized form of legislation exercised by laymen. Unlike the modern form of regulation by laymen, which must in practice be delegated to representatives, or the representatives of representatives, regulation by experts and professionals is potentially always open, without delegation, to everybody, to every expert and professional in his or her technical or professional capacity – an exercise in codification that remains ex hypothesi open to technical and professional input from all disciplines, a code with an open source. In other words, a realization of the ideal of direct democracy without its dangers. An ode to joy. [The other side of the thinking of play] … would be the Nietzschean affirmation, that is the joyous affirmation of the play of the world and of the innocence of becoming, the affirmation of a world of [rules] [signs] without fault, without truth, and without origin which is offered to an active interpretation. This affirmation then determines the noncenter otherwise than as loss of the center. And it plays without [certainty] [security]. For there is a sure play: that which is limited to the substitution of given and existing, present, pieces. … [This other interpretation], which is no longer turned towards origin, affirms play and tries to pass beyond man and humanism, the name of man being the name of that being who, throughout the history of metaphysics or of ontotheology – in other words, throughout his entire history – has dreamed of full [positivity] [presence], the reassuring foundation, the origin and the end of the play.68

68

Jacques Derrida, ‘Structure, Sign and Play’, supra note 59, at 278, 292 (emphasis in original).

Law and the Global Phenomenon of Righting Old Wrongs Stiina Löytömäki*

Introduction Since the end of the Cold War and the dissemination of the polarisation of the Western world, we have faced an endless amount of effort to rectify old injustices. Especially eager to deal with their repressive pasts have been societies that are still in the path of democratisation or liberalization, or societies in which the tumultuous and nation-dividing events have been recent, for instance South Africa, Latin American ex-dictatorships, many African states, Eastern Europe and former Soviet Union.1 But even established democracies, including those in which the recent history has been benevolent, have turned towards the black holes of their pasts. In France the Algerian war has emerged into legal arena; Sweden has faced trials based on the 1930’s sterilization laws; Austria has faced restitution processing concerning Jewish property that was confiscated during the Second World War; Spain has started to work through the civil war and the Franco-past. Sometimes claims to correct past injustices extend into past centuries: aboriginals in many countries all over the world are claiming rights for restitution of their land, and in USA some heirs of black slaves claim a right for reparations, among others. 2 Ph.D. candidate at the European University Institute. See for instance Emilios Christodoulidis and Scott Veitch, Lethe’s Law. Justice, Law and Ethics in Reconciliation (Hart: Oxford; Portland, 2001) and Ruti Teitel, Transitional Justice (Hart: Oxford; Portland, 2000). 2 For literature on this issue see for instance Christodoulidis and Veitch (eds.), Lethe’s Law, supra note 1; John Borneman, Settling Accounts: Violence, Justice and Accountability in Postsocialist Europe (Princeton University Press: Princeton, N.J., 1997); Henry Rousso, The Haunting Past. History, Memory and Justice in Contemporary France (translated by Ralph Schoolcraft, University of Pennsylvania Press: Philadelphia, 2002); Elazar Barkan, The Guilt of Nations (Norton: New York, 2000); Deák Istvan, Jan T. Gross, and Tony Judt (eds.), The Politics of Retribution (Princeton University Press: Princeton, N.J., 2000); Martha *

1

Finnish Yearbook of International Law (Vol. XV, 2004) 274 __________________________________________________________________ Common to dealing with the past occurring in various countries is that the crimes in question have been committed in the name of the state. They have thus been based, at least indirectly, in state politics or have been carried out in collaboration with state institutions. The central issue seems to be a need to establish an objective truth about contested events that should preferably enjoy recognition by the state, that means by the same institutions, or their precedents, that committed the misdeeds in the first place, and to involve the national government in redressing the legacy of past injustice through legislation.3 What is of interest for lawyers in this phenomenon, apart from being enlisted as entrepreneurs to advance and measure claims related to past injustices, is that legal proceedings, particularly criminal processes and restitution cases, are often expected to fulfil functions that differ significantly from those commonly attached to legal proceedings, such as finding out historical truth, reconciling the society, and transmitting memory. In this article I try to analyse the phenomenon of nations beginning to look into their past with increasing criticality, and related efforts by different political agents or groups of agents to put forward memory-political claims that are often translated into legal language. I also make the claim that the law may not be the most suitable means for getting at memory fostering, historical truth, or societal reconciliation. However problematic, this dealing with the past phenomenon, and invoking the law to serve it, puts forward some paradoxes of liberal legal theory. Functionalist liberal legal theory perceives the role of law as that of fulfilling certain societal functions, and is based on an idea of an autonomous sphere of law that is independent from politics and other societal spheres. Intrusion of historical discourse into the sphere of law forces the law to reconsider its autonomy and may imply a certain relativization of legal discourse. The moulding together of history, law and politics in the processes of dealing with the past may actually lead to an ever deepening crisis of legal liberalism that holds on to its outdated premises while factually loosing its autonomy.

Dealing with the Past through Law Abundant literature has recently treated the question of the appropriacy of both international and domestic trials as instruments for comprehending history, forging Minow (ed.), Breaking the Cycles of Hatred: Memory, Law, and Repair (Princeton University Press: Princeton, N.J., 2002); Mark Osiel, Mass Atrocity, Collective Memory, and the Law (Transaction: New Brunswick, N.J., 1997); Nancy Wood, Vectors of Memory (Berg: Oxford, 1999). 3 Thomas McCarthy, ‘Coming to Terms with our Past’, 32 Political Theory (2004) 750 at 751-752.

Law and the Global Phenomenon of Righting Old Wrongs 275 __________________________________________________________________ memory and reconciling societies. Those who look at the international relations and international law from the point of view of realism tend to be sceptical about the idealists’ and liberalists’ confidence in legalism, in the extension of the rule of law from the domestic sphere to the international sphere, and in the advantages of introducing criminal justice to societies in which past state-scaled criminality has just rambled.4 The premises upon which liberal international criminal law are based have been criticised, that is the rationality and autonomy of human beings and the conception that criminal law application in itself is rational and reaches the truth - in fact, legal functionalism in general has been questioned to the extent that some scholars claim that the liberal criminal law’s emphasis on the rationality has become in itself an irrational ritual, international criminal jurisdiction in reality shifting between impunity and showtrials.5 I shall shortly analyse criminal trials from the point of view of finding out historical truth, transmitting memory and victims’ memory in particular, and national reconciliation.

Truth Finding through a Trial Trials that deal with state criminality or that are related to contested historical episodes are often justified with the need to find out what actually took place in the past, that is to establish who the perpetrators are, who the victims of certain crimes are, as well as whose (and what type of) decisions led to the atrocities in question etc. The difficulty lies in the fact that a court has little means to investigate the larger historical and political context of individual events that led to the crimes committed, which is an issue often contested even amongst historians, and which is usually a prerequisite for determining the causality link between political decisions and the crimes committed. When a crime has been committed in such an era and in such circumstances that involve political instability and controversy, the truth of the broader context in which the crime was committed also takes on a contested, political aspect. The broader the context in which individual guilt has to be understood the more evident are the limits of criminal procedure for reaching the historical truth.6 For instance, one of the decisions that a court has to take in order to interpret the events in question is the time-frame within which crimes are to be For an excellent account of the politics of war crimes tribunals see Gary J. Bass, Stay the Hand of Vengeance (Princeton University Press: Princeton, N.J., 2000). On the more idealist side, Lawrence Douglas’s The Memory of Judgement (Yale University Press: New Haven; London, 2001) is equally excellent. 5 See Martti Koskenniemi, ‘Between Impunity and Showtrials’, 6 Max Planck Yearbook for United Nations Law (2002) 1-35. 6 Ibid at 11-12. See also Rousso, The Haunting Past, supra note 2, at 49-50, 57, 59. 4

Finnish Yearbook of International Law (Vol. XV, 2004) 276 __________________________________________________________________ interpreted. This requires complex historical analysis. Were the court to decide to analyse the events in question from an ‘ahistorical’ point of view, this is far from being a politically or historically neutral decision. Moreover, the quest of a court investigating past state or political criminality for finding out ‘what actually took place’, which is indispensable from the legal point of view in order to reach a truthful sentence, reflects a Rankean conception of history, long ago abandoned within the field of historiography. Thus within the law’s sphere history is understood as a device to set the historical facts straight, and historians’ role as that of announcing historical judgments reminiscent of legal truth. Not only in itself problematic, this is also contrary to the observation that within a trial itself, the court interprets historical ‘facts’ brought to its use, as any other information, through its own normative framework. History produced by courts would thus be true ‘legal history’ in an ironical sense, history conceived and produced by the discipline of law and through legal tools and legal methods. All this brings history to the reverse direction from the latest developments of historiography, and consequently, from the point of view of the latest historiography which emphasizes perspective, subjectivism and relativity of historical ‘truth’, history produced in trials is doomed to look like a caricature: the more eagerly a trial is to look for the ‘historical truth’, the more inadequate this ‘truth’ will seem in the eyes of historiography. Judicial and historical interpretations are simply two different modes of interpretation that do not necessarily coincide. From the point of view of historiography, by individualizing guilt and by concentrating on individual responsibility, a trial may even end up obstructing the broader political, economic and legal structures within which the conditions for individual criminality have been created.7 By placing a few accused individuals on the agenda, on the show in a way, a trial makes them symbols of the contested events or of the whole contested era, which may far extend these actors’ real importance in the events in question. In addition, through punishment of a few individual wrongdoers – rather than placing the blame say on whole ethnic groups – the rest of the nation may be able to free itself of responsibility, which is neither irrelevant nor detrimental from the point of view of national reconciliation or future social peace, but does threaten to reduce those individuals who are accused and sentenced to serve as scapegoats for the rest.8 This, according to liberal criminal law, is unacceptable. Or reversely, as French historian Henry Rousso suggests, when individuals that committed crimes in the name of a certain ideology are charged, it is no longer simply the individuals who are being tried but indirectly, symbolically, also a 7 8

See Koskenniemi, ‘Between Impunity and Show Trials’, supra note 5, at 14. See ibid. and Bass, Stay the Hand of Vengeance, supra note 4, at 286.

Law and the Global Phenomenon of Righting Old Wrongs 277 __________________________________________________________________ government and an ideology, or an entire era and its politics.9 This is what happened in trials related to the Second World War in many countries, including in France where trials against Paul Touvier and Maurice Papon actually dealt with not only individual actions of the accused, but the contested issue of the French collaboration. In the Eichmann trial in Israel in 1961, according to some it was history that stood at the centre of the trial, not the accused. ‘It is not an individual that is in the dock at this historical trial, and not the Nazi regime alone, but antiSemitism throughout history’, claimed the prosecutor. Yet, as Hannah Arendt in her analysis about the trial reminds, despite the intentions of the prosecution, there remained an individual in the dock, and undeniably the main task of the Jerusalem court was to deliver a verdict against Eichmann. 10 Accordingly, the objective of establishing historical truth through trials is criticized for allegedly damaging the integrity of the system of justice and possibly distorting law’s responsibility to the accused. Even Lawrence Douglas, who on the whole is very positive about the criminal law’s capacity to fulfil its new functions, concludes in his analysis of postSecond World War trials that it was in fact ‘the strenuous efforts to secure formal legal integrity that often led to a failure to do justice to traumatic history.’11 Post-modernists might also ask: which truth, and whose truth is revealed in a trial? How historical matters are interpreted, and to what extent the truth obtained is related to political struggles and power relations, that is to the context in which history is interpreted. A court too establishes its verdict within a certain political and historical context. Yet, the law’s authority and legitimacy is bound to establish its interpretation of history as ‘official’. Therein lies both the attraction, and the ‘risk’ of making history in courts. The use of trials in order to find out historical truth may also serve as an effective apology for present-day policies, and the involvement of historians at trials may lead to juridical instrumentalization of historiographical expertise. The French historian Henry Rousso goes so far as to claim that historians are in fact not needed in trials so as to establish the truth of the historical context, but so as to justify and legitimize these belated, exceptional ‘historical’ trials.12

Rousso, The Haunting Past, supra note 2, at 56. Hannah Arendt, Eichmann in Jerusalem (Viking Press: New York, 1964) at 19-20. 11 Douglas, The Memory of Judgement, supra note 4, at 260. 12 Henry Rousso, ‘L’expertise des historiens dans les procès pour crimes contre l’humanité’ in Jean and Salas, Barbie, Touvier, Papon. Des procès pour la mémoire (Editions Autrement: Paris, 2002) 58 at 69. According to Rousso, historians should refrain from testifying in courts because history is not a precise science and by definition is subject to revisions, consequently, it should not be used in court with the certainty of evidence. Accepting a historian’s ‘expert opinion’ as legal evidence would constitute a slippage from what could or might have happened to what actually happened. 9

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Trial as an Instrument of Remembering Typical to trials that deal with past state criminality is that attention is focused on the repressed memories of abused individuals and collectives of individuals. Trials have become commemorative events, among other commemorations, in which different segments of the society seek to establish their particular historical narratives and their identities that are shaped by past events. A trial that deals with nation’s past also inevitably shapes national memory: trials and verdicts have impact on what history remembers and what it forgets, what is included in and what is excluded from collective memory.13 In this way, the law indeed acts as an organising force for which meanings are given to history, and has perhaps become to take up some of the traditional interpretive and organising functions of historiography. Law attains this by its active, performative endeavour, whereas historiography is inherently more cognitive and constative.14 Trials’ role as a means to articulate the suffering of victims is emphasised in our era more than previously.15 Trials offer a forum for the rehabilitation of victims, as in a trial a word shifts from the persecutors to the victims. This gives a chance to restore the victim of his humanity and reveal the arbitrary nature of the violence that has struck him. Emphasis given to victims and their narratives in trials reflects a request for authenticity, privacy, subjectivity, within the formal rationale of law, but equally, the operation of legal criteria may trivialise, professionalize and rationalise the memory of suffering and thus fail to represent it. It is clear that the victims of past atrocities should have their voices heard, but law cannot embrace all memories and all experiences. Law and trials offer a possibility for official acknowledgement of the offences committed, but under the limitation of the formal logic of a trial. The contemporary emphasis of victims’ narratives in trials may actually be contradictory with the inner logic of a trial. Legal rationality, for instance rules of procedure, limit the testimonies of witnesses in court by subjecting them to preformulated questions.16 A trial begins and ends with the accused, not with the victim, a court relying on a limited and well-defined outline of what was done and how it was done. Hannah Arendt in her ‘Eichmann in Jerusalem’ claims that the one who committed the crime can solely be at the centre of a trial, and if he is judged, it Rousso, The Haunting Past, supra note 2, at 57. Shoshana Felman, ‘Forms of Judicial Blindness: Traumatic Narratives and Legal Repetitions’ in Austin Sarat and Thomas R. Kearns (eds.): History, Memory, and the Law (The University of Michigan Press: Ann Arbor, 2002) 25 at 66. 15 For instance the Nuremberg trials concentrated on the crime of aggression of war rather than on crimes against the humanity in which what is done to victims is central. 16 Bilsky Leora, ‘Justice or Reconciliation? The Politicisation of the Holocaust in the Kastner Trial’, in Christodoulidis and Veitch, Lethe’s law, supra note 1, 153 at 163. 13

14

Law and the Global Phenomenon of Righting Old Wrongs 279 __________________________________________________________________ is because of what he has done, not because what he has caused others to suffer.17 Conversely, more contemporary ‘narrative jurisprudence’ understands law as a vital cultural discourse and considers the meaning of survivor testimony from a different perspective than that framed by rules-based formalism, focusing the attention on whether the trial did justice to the testimony of the survivors, rather than to its inner logic.18 However, since criminal proceedings are mandatory and initiated even if the victim would prefer to forgive, essentially the crime is committed against the whole community whose law is violated. In criminal cases, the accused is brought to justice because his act has disturbed and endangered the community as a whole, and not because, as in civil suits, damage has been done to individuals who are entitled to reparation. In criminal cases an altogether different kind of reparation is expected: It is the general public order that has been destabilized and that must be restored. 19

Law as a Means of Strengthening and Unifying the Community It is often maintained that a prosecution process enhances the formation of coherent collective memory which in turn furthers social solidarity, considered as particularly important in countries that are in the process of liberalisation or democratisation.20 However, collective memory may be difficult to construct intentionally and to impose from above on different sections of the society. As Maurice Halbwachs argued already in 1950 in his classic theoretical work La Mémoire collective, there is actually no such thing as universal collective memory within a nation state. Instead, collective memory is something shared by communities which have lived through the same experiences, and collectives construct memories that are peculiar to them and relatively impermeable to the memories of other communities. The memory of the persecuted is thus different from that of the persecutors; the memory of the oppressed different from that of the oppressors. 21 Even if we would not concede that the binary categories of a trial reflect the reality in all its complexity, a trial between two opposing parties – perpetrator and victim – shows different perspectives on the events, which a trial, even though it could establish some agreement about the actual events, can hardly unify. Within a given society there exist contradictions about social, political, historical and moral issues which law can hardly dissolve. Whereas earlier, one of Arendt, Eichmann in Jerusalem, supra note 10, at 9. Douglas, The Memory of Judgement, supra note 4, at 112-113. 19 Felman, ‘Forms of Judicial Blindness’, supra note14, at 56, 60-61. 20 See for instance Teitel, Transitional Justice, supra note 1 and Osiel, Mass Atrocity, supra note 2 on this theme. 21 Maurice Halbwachs, La Mémoire Collective (Les Presses universitaires de France: Paris, 1950). 17

18

Finnish Yearbook of International Law (Vol. XV, 2004) 280 __________________________________________________________________ the main functions of national historiography was to connect the national past, present and future into one meaningful, coherent narrative in which the state appeared as the central subject, at present the national past has broken into multiple traditions due to the decline of the great political, national and union traditions that have lost their relevance in contemporary societies.22 It is thus questionable whether in any modern or post-modern society a consensus on fundamental moral issues exists, and whether such consensus should exist in the first place. Why should law seek to banish, and how could it banish, all cognitive and moral ambiguity, which actually is the very essence of the post-modern condition?23 According to the French philosopher Alain Finkielkraut, among others, the excellence of democracy lies in its ability to institutionalise conflict by inscribing it in its guiding principles, whereas most of the political ideologies of the twentieth century that aimed at societies in which everyone would agree on an exclusive conception of good actually created the most inhuman systems of power. 24 According to Finkielkraut, humanity may cease to be humane precisely as soon as there is no longer a place for an ‘enemy’ in the idea it holds of itself. Great legal proceedings carried out in planetary concert, as many trials about crimes against humanity are presented, represent an enchanted picture of universal, simplistic sympathy, yet, what may be needed is a capacity to reveal what is relative, paradoxical and ambiguous in our societies, and open up to it.25 Trials, as they establish strictly limited and constricted identities, may not be able to reveal this ‘relative’ and ‘ambiguous’.

Victims’ Justice Law and trials have become significant instruments for societal groups whose victim status is actually two-fold: on one hand these groups of individuals have usually suffered from concrete oppression in the past; on the other, they are symbolic victims of history in the sense that their stories have been excluded from or reduced to the margins of the official historiography. Through trials that offer a direct access to the world’s attention, and through law’s simplistic categories that simulate the truth, these groups hope to gain acceptance for their cause, and for their particular interpretation of history.

Rousso, The Haunting past, supra note 2, at 14. Osiel, Mass Atrocity, supra note 2, at 52. 24 See Tzetan Todorov, Memoire de mal, tentation du bien (Laffont: Paris, 2000). 25 Alain Finkielkraut, Remembering in Vain (translated by Roxanne Lapidus, Columbia University Press: New York, 1992) at 58, 60. 22

23

Law and the Global Phenomenon of Righting Old Wrongs 281 __________________________________________________________________ Yet, law fixes identities to such binary categories as good-bad, innocent-guilty, oppressed-oppressor, that in post-modern reality it is hardly able to capture the complexity of the past. Post-modernism has rendered the notions of good and bad blurred, and the question on which side the law stands and for what purpose it is used has become problematic. Consequently, it is not clear anymore that the poles established by the trial actually reflect reality. However, as our societies award victims with a certain moral superiority, these simplistic categories of a trial may actually be rather attractive. Trials can be used in order to fix the identities that existed in the past – identities that in reality are in constant flux – and ironically, in the past the agents of history really were opposed to each other as oppressor – oppressed. Like this, law can only be established on the ruins of an oppressive past.26 Victims have increasingly started to claim a legacy of oppression and establish we-groups, which then allegedly enable individuals to work through the traumas of their personal and collective histories.27 Recent history writing too, in its attempt to give voice to the oppressed of the past, represents an attempt to work through painful experiences in order to free oneself of the past. Quite apart from how legitimate, justified and necessary the claims of certain organised victim groups may be, their agenda should be understood as part of the identity and memory politics typical to our contemporary societies. Rather than conceiving such groups of individuals as passive victims – which would mean nailing their identities into those that may have existed in the past – we should consider them as active political agents that invoke both history and law for their present purposes. As Roth among others maintains, claiming a legacy of oppression is used not only as a tool to escape the past, but at times also as a means to maintain one’s connection or identification with the past. 28 According to Zygmunt Bauman, the paradox of being a hereditary victim, hereditary in an imagined sense, is to develop vested interests in the hostility of the world, thus maintaining the victim status which allows for justification for certain political actions in the present. 29 International politics is full of examples of actions justified by past victimisation. However, there are legacies of oppression whose effects continue, legacies that are to be objected even though some groups may claim these legacies in a way that can be rejected on moral, political, or scientific grounds. Roth encourages us to pay See Ber van Roermund, ‘Rubbing Off and Rubbing On: The Grammar of Reconciliation’ in Christodoulidis and Veitch, Lethe’s Law, supra note 1, 175 at 187. 27 See for instance Michael S. Roth, The Ironist’s Cage: Memory, Trauma, and the Construction of History (Columbia University Press: New York, 1995) at 10-11. 28 Ibid. 29 Zygmunt Bauman, ‘Enlightenment and Genocide’, in James Kaye and Bo Stråth (eds.), Enlightenment and Genocide, Contradictions of Modernity (2000) 31 at 44-48. 26

Finnish Yearbook of International Law (Vol. XV, 2004) 282 __________________________________________________________________ attention both to the forces that engender these claims and to the content of the claims themselves in order to understand why claims to remember how one has been oppressed in the past have extraordinary power at particular times for particular purposes.30

Historical, Political and Cultural Context of the Phenomenon of Righting Old Wrongs There is something in our time which, in contrast to the future-orientation of the post-war decades, and within Europe also in contrast to the future-orientation of the European project, makes any attempt to turn the page in history, especially those pages that still contain controversy, to be greeted with suspicion.31 This probably emanates, at least partly, from our inability to come to terms with, and to establish consensus over the meaning of crisis in the twentieth century, the Holocaust in particular.32 According to Rousso, ‘memory’ has become a ‘value’ and not just an objective phenomenon and ‘duty to memory’ has been transformed into a permanent moral injunction, in particular in relation to the tragedies of the Second World War and the Holocaust. Parallel to this phenomenon observable in public discussion, the ethics and politics of memory has for years been the subject of intense debate within social and political theory. The proliferation of efforts to reform the past gain encouragement from criticism towards established state authorities on one hand and from optimism about justice and institutions of remedy on the other.33 The Nuremberg trials, although criticized as victors’ justice, stand out as a landmark legal process in holding governmental officials accountable for wrongdoing. Before the Nuremberg trials, political leaders seldom faced judicial accountability for their actions. What is therefore new in dealing with the past characteristic to our contemporary societies is that criminality is, for the first time in history, traced to the heart of government and authority itself.34 There has thus been a shift as to what kinds of criminality, and whose criminality can realistically be expected to be addressed. Along with the more visible position that victims hold in the present-day societies, criminality and Roth, The Ironist’s Cage, supra note 27, at 10-11. Wood, Vectors of Memory, supra note 2, at 2. 32 Emilios Christodoulidis and Scott Veitch, ‘Introduction’ to Lethe’s Law, supra note 1, at xii; Rousso, The Haunting Past, supra note 2, at 3; Roth, The Ironist’s Cage, supra note 27, at 14. 33 Marc Galanter, ‘Righting Old Wrongs’ in Breaking the Cycles of Hatred: Memory, Law, and Repair (Princeton University Press: Princeton, N.J., 2002) 107 at 120-121. 34 Borneman, Settling Accounts, supra note 2, at 4-5. 30

31

Law and the Global Phenomenon of Righting Old Wrongs 283 __________________________________________________________________ accountability that previously touched mainly those in the margins of the society have recently extended to the centres of power, along with the increasing possibility of those previously considered as marginal to bring into account ‘the big guys’.35 In the post-Cold war context, the discussion about international moral commitments has also assumed new vigour. Political language of ‘Machtpolitik’, characteristic to the Cold war era, has shifted towards advocating a shared belief in basic individual and group rights - even when it is used simply to mask the imposing of power. Domestic and international public opinion and organizations are increasingly attentive to moral issues, and NGO’s that claim to represent international democratic public opinion are assuming unprecedented importance and visibility in international politics.36 Human rights organisations have taken over responsibility for the supervision of state actors’ compliance with norms and have themselves emerged as international political actors raising matters on the agenda that in the past were committed within the contours of the state authority. The relativization of state sovereignty allows for states to critically examine each others’ actions, and to interfere in their reciprocal relationships in matters that were previously conceived as internal matters of the states, protected by the doctrine of state sovereignty. Similarly, states interfere now to a growing extent in their own respective pasts, in matters that within their own state were previously considered protected by the state sovereignty. Contemporary states and their representatives have begun to dwell upon the guilt of their predecessors. In addition, increasing judicialization of our societies implies that matters that were previously dealt with outside the law, are now to a growing extent addressed by the judiciary. Resorting to the law in the contemporary memory project not only indicates that the law’s instrumental value has expanded but also that post-modern societies attach more and more meanings to law; law represents truth, justice, security, order. Indeed, recent developments of international criminal law have among some groups caused reason to believe that the rule of law could finally prevail, in contrast to the Cold war situation in which law was clearly suppressed under politics.37 The idea of universal rule of law calls for the realisation of both domestic and international criminal responsibility, as if the ideal state of affairs were that there should be no outside-of-law38, which sometimes leads to unrealistic attempts to restore the culture of impunity even retrospectively. The rule of law may be something that the Western world wants to present as specific of its cultural Galanter, ‘Righting Old Wrongs’, supra note 33. Barkan, The Guilt of Nations, supra note 2, at 308, 318, 333. 37 The ideal of the rule of law is used here to mean that governmental action should be controlled by known rules preventing arbitrariness. See Roger Cotterrell, The Politics of Jurisprudence (Butterworths: London, 1989) at 113. 38 See Koskenniemi, ‘Between Impunity and Show Trials’, supra note 5, at 2. 35 36

Finnish Yearbook of International Law (Vol. XV, 2004) 284 __________________________________________________________________ heritage; the events of the Cold War and the political organisation of ex-colonial, non-European societies have allegedly rendered Western societies culturally even more self-conscious than before, and have fostered a search for a positively and uniquely Western identity, Western political tradition.39 Upon the fierce search for the European identity, the Enlightenment ideals of universal rationality and continuous progress, represented by human rights and the rule of law, are resorted to and presented as central for European legal systems and international law, despite both the reality that has proven that their application in practice has been problematic, and the critique towards those ideals themselves.

Implications of Dealing with the Past for Liberal Legal Theory Marc Galanter has provocatively called the righting of old wrongs phenomenon a conservative utopia, referring to the implicit will to redo history, to make up for what today are regarded as failings and gaps of history, in order to reach a ‘harmonious resting place’ in present. 40 Rectifying past injustices represents an impulse to undo the injustice of history, an attempt to retrospectively make history yield up a morally satisfying result that it did not succeed in reaching the first time around. However, fixing up the past is as illusory as stopping the flow of. On one hand, according to McCarthy, a just society should, to the extent that is possible and permissible, right the wrongs of its own past injustices, particularly when they have continuing effects upon some agents in the present. 41 On the other, history, just as present day, contains an endless supply of injustices which all cannot be repaired. Which old wrongs will deserve remedies is a question about the future, not about the past, and partly it is a question of which claims will be articulated and organised. This requires supporters and entrepreneurs, such as human rights organisations and organised victim groups.42 The righting old wrongs project can also be described as a liberalistic utopia – utopia because it assumes that the culture of impunity can be established even

Judith N. Shklar, Legalism: Law, Morals, and Political Trials (Harvard University Press: Cambridge, 1986) at 20-21. Shklar also refers to Max Weber who distinguishes rationality as constituting European identity. According to Weber, the predisposition to discover, construct and follow rules has accounted for those phenomena which appear only in the Occident: Roman law, judicial institutions, capitalist economies, rational social ethics, and Puritanism in religion. 40 Galanter, ‘Righting Old Wrongs’, supra note 33. 41 McCarthy, ‘Coming to Terms’, supra note 3, at 753. 42 Galanter, ‘Righting Old Wrongs’, supra note 33, at 121-122. 39

Law and the Global Phenomenon of Righting Old Wrongs 285 __________________________________________________________________ retrospectively.43 The underlying idea seems to be that matters in society are effectively right and harmonious – the society in itself does not entail paradoxes or conflicts. According to this logic, conflicts and paradoxes that however emerge can be ‘straightened’ or abolished with reparative functions, and social peace and social equality accomplished. The intrusion of historical discourse into the sphere of law within the dealing with the past phenomenon illuminates the deepening crises of liberal legal theory which still relies in its premises on the idea of law as an autonomous discipline independent from politics, morality, and other societal sciences such as history. This autonomy may have been characteristic of modern law; however, the inevitable interaction of law with those other disciplines in our contemporary societies, the Vergangenheitsbewältigung process serving as an example, may lead to a certain relativization of law. This serves to undermine the liberal legal paradigm and its progressive project and brings into light a paradox: while the law continues to hold on to its autonomy in a theoretical and cognitive level, obstinately restricting itself from other societal disciplines and their latest developments, in a factual level its autonomy is long forfeited. The intrusion of politics, morality, and history seems inevitable. The Vergangenheitsbewältigung process also serves to put into question the functionalist legitimation of law and criminal trials in specific. Functionalist liberal legal theory perceives the role of law as that of fulfilling certain societal functions, the underlying idea being social engineering allegedly leading to greater development of societies. However, there has been more and more criticism towards the possibilities of social engineering, for instance the post-modern critique towards rationality, determinism, and belief in possibility to trace cause and effect relations in social phenomena in general. Within legal theory, for instance Critical Legal Studies have provided for both internal critique of law, claiming that legal rules are indeterminate, and external critique of law which points to the questionable possibility of legal instrumentalism due to the complexity of the social problems to be regulated, and unintended side-effects of legal regulation.44 As long as legal measures are legitimated functionally, the law cannot renounce the idea of progress entailed within its functionalist premises. And vice versa, the belief and aim to societal development contributes to legitimating law functionally. Would law renounce its faith in progress, it would be reduced to empty rituals. Consequently, what has taken place is that the law has responded to the above critique by transforming its functionalist legitimation, that is by replacing certain Universal rule of law is one of the constitutive elements of liberalism. See for instance James Boyle (ed.), Critical Legal Studies (Dartmouth: Aldershot, 1994) and Mark Kelman, A Guide to Critical Legal Studies (Harvard University Press: Cambridge, 1987). 43 44

Finnish Yearbook of International Law (Vol. XV, 2004) 286 __________________________________________________________________ functions with others that seem better suited in the contemporary world, but still holding on to its functionalist premises. For instance, the critique towards criminal law’s obsessive concentration on the accused has led to shifting the focus on preventive arguments to those that emphasize the role of trials in establishing of historical truth, transmitting memory – victims’ memory in particular – reconciling society etc.45 This kind of discourse is particularly prevalent in transitional justice theory and idealist international law discourse, including that of human rights. I therefore find it important to point out the law’s limited possibilities to establish historical truth, transmit memory etc. because this serves to attest the hollowness of liberalist justifications.

Conclusion That there exist voices that insist on law and trials to address wrongs committed long ago and to fulfil such functions as truth finding, memory transmitting, and articulation of victims’ suffering is reality in our present-day societies and as such an interesting socio-cultural phenomenon. There is growing reflexivity towards the past in present-day societies, and past wrongs have started to unravel and voices demanding justice have been heard in particular after the cold war ended. The unexpected events of the 1989 have forced Europe to reconsider its post-1945 history and this reconsideration has contributed to the resurgence of diverse memories that during the Cold War were suffocated in the name of the coherence of one’s own block. The decolonisation movement in the sixties brought about whole new peoples, cultures and groups of people around the world who now claim their legacy of the Enlightenment rights of which previously only the Europeans benefited. That questions about historical truth on contested past events, about collective memory and reconciliation of societies are discussed publicly, whether within historiography, politics, media or other channels, is one thing and certainly welcomed by many, including the author. But as I have intended to argue, these larger questions can hardly be debated within law’s sphere, within a criminal trial, in a manner that would do justice to the diversity and to the complexity of these issues. It is scholarly history, not trials, that can offer explanation of why certain crimes were not prosecuted at their time. A trial cannot resolve the question about the collective responsibility, let alone collective guilt, neither summon up a collective memory about contested events, or give voice to all memories, to all narratives.

45

See Koskenniemi, ‘Between Impunity and Show Trials’, supra note 5, at 4.

Law and the Global Phenomenon of Righting Old Wrongs 287 __________________________________________________________________ The problematic aspect of the new objectives of trials is often forgotten under such positive connotations as the establishment of criminal liability and rule of law versus impunity, historical truth versus repression of truth etc. Trials that deal with past state criminality allegedly fulfil societal needs that serve the society as a whole. Yet it is hardly the trial itself that accomplishes these objectives; if it does so it is through public debates that trials often provoke. In our politically correct era the cause of the righting old wrongs project itself seems purely positive – prosecution of crimes that at their time for one reason or another were not prosecuted – and consequently less attention is paid to the underlying premises of this phenomenon and to the problematic aspects it contains for both disciplines of law and history. In fact, the cause seems so world-embracing, universalistic, and liberalistic that there seems to be little reason to question it. This view, however, blurs the existence of particular interests, particular truths, and particular identity politics that the righting old wrongs project serves.

The Rules of Attribution and the Private Military Contractors at Abu Ghraib: Private Acts or Public Wrongs? Katja Nieminen*

Private Contractors and the Quest for Accountability Introduction In April 2004, the findings of a military investigation showed ‘sadistic, blatant, and wanton criminal abuses’ of prisoners at Abu Ghraib prison in Iraq between October and December of 2003.1 The systematic abuse of detainees included extensive physical, mental and sexual maltreatment. 2 The sexual abuse and humiliation consisted inter alia of forcing detainees to remove their clothing and keeping them naked for several days at time, forcing group of male detainees to masturbate themselves while being photographed and videotaped, and arranging naked male detainees in a pile and then jumping on them. The detainees were also assaulted physically, as there were evidence of punching, slapping, kicking and beating detainees. At least in one instance a naked detainee was positioned on a box, with a sandbag on his head and wires attached to his fingers, toes, and penis to simulate electric torture. Furthermore, the detainees were poured cold water on as well as

* Research Fellow, The Erik Castrén Institute of International Law and Human Rights, University of Helsinki. The article is based on the author’s LL.M. thesis in 2004 at the University of Helsinki. 1 Article 15-6 Investigation of the 800th Military Police Brigade, in Karen J. Greenberg & Joshua L. Dratel (eds), The Torture Papers: The Road to Abu Ghraib (Cambridge University Press, 2005) 405-447 at 416. 2 Ibid., at 416-418.

Finnish Yearbook of International Law (Vol. XV, 2004) 290 __________________________________________________________________ phosphoric liquid from broken chemical lights. They were also threatened with rape, charged pistols and military working dogs. In at least one case the military dogs severely injured a detainee. The events in Abu Ghraib were well documented since soldiers photographed and videotaped the maltreatment of the detainees. Under international law, it seems clear that the violations amounted to inhumane and degrading treatment, and in some cases even to torture. The treatment described above refers to events that took place during autumn 2003 when Abu Ghraib was a U.S. military prison and the acts were carried out by American soldiers and private contractors working alongside the American forces. According to the investigation several military police and military intelligence officers committed the abuses. The military intelligence personnel consisted of CIA officers and private military contractors. Taguba who conducted the investigation expressly mentions four private contractors in his report, assigned to Abu Ghraib to work as interpreters and as interrogation specialists. Two contractors are specifically named as probably being either directly or indirectly responsible for the abuses at Abu Ghraib.3 The numerous abuses enlisted above were thus partly conducted or ordered by employees not belonging to the army but still working at the side of the army.

Private Military Companies and Legal Grey Zones The private contractors in Abu Ghraib were not an isolated incident but part of a larger phenomenon in modern warfare. In fact, the current war in Iraq has been called the first privatized war of modern time. 4 Private contractors represent the largest U.S. coalition partner as estimations show there are between 15,000-20,000 private contractors in Iraq.5 States are increasingly turning to the private sector in order to obtain services that would once have belonged to the exclusive domain of the military. Seeking external military support is no innovation, but turning to the global marketplace instead of other states or organizations, is. Private military companies (PMCs) are profit driven companies that trade in professional services linked to warfare.6 The companies sell everything from small teams of commandos

Ibid., at 443. Stephen Evans, ‘Privatised Wars Need New Laws’, (visited 2 May 2005). 5 Ann Scott Tyson, ‘Private Firms Take on More Military Tasks’, <www.csmonitor.com/2004/0402/ p03s01-usmi.htm> (visited 6 May 2005). 6 For in-depth examinations of PMCs see e.g. P.W. Singer, ‘Corporate Warriors: The Rise and Ramifications of the Privatized Military Industry’, 26 International Security 3 (Winter 2001/2002) 186220; P.W. Singer, Corporate Warriors: The Rise of the Privatized Military Industry (Cornell University Press: 3 4

Private Acts or Public Wrongs? 291 __________________________________________________________________ to massive military supply operations.7 A government can employ a PMC to help it in a conflict as was done by Sierra Leone and Angola. The United States used PMCs for monitoring in the Balkans. International organizations could also employ private military services in order to respond more rapidly and more effectively to crises. Yet, private military services can also be used in unsavoury ways, as mercenaries.8 Either way, strong arguments are raised both in favour and against the use of PMCs. Why then are the services of PMCs perceived as inherently hard to combine with the present international order? The underlying perception is that the monopoly on the use of force remains essential to the notion of state. A general assumption about warfare is that it is engaged in by public militaries, i.e. armies of citizens, fighting for a common political cause.9 The idea of a state relying for its security on a foreign force is contrary both to this reasoning and to the present concept of citizenship, as PMCs are fundamentally profit-seeking firms the first loyalties of which are to the shareholders.10 Another aspect of international law often connected to the use of PMCs, as also in the case of Abu Ghraib, concerns violations of human rights and international humanitarian law committed by their employees. PMCs are frequently accused of human rights violations and not entirely without reason. Before Iraq, contractors have been accused of e.g. attacking civilians in Colombia11, running a prostitution ring in Bosnia 12 and assaulting on detainees in Afghanistan13. Private companies might be able to do things government forces found unacceptable and deniable. Also, the need to fulfil contractual obligations may pave way for a desire to

Ithaka, 2003); Juan Carlos Zarate, ‘The Emergence of a New Dog of War: Private International Security Companies and a New World Disorder’, 34 Stanford Journal of International Law (1998) 75-162. 7 P.W. Singer, ‘War, Profits, and the Vacuum of Law: Privatized Military Firms and International Law’, 42 Columbia Journal of Transnational Law 2 (2004) 521-549 at 521. 8 Foreign and Commonwealth Office, Private Military Companies: Options for Regulation (2001-2002 HC 577). See foreword by Jack Straw, the Secretary of State for Foreign and Commonwealth Affairs of the United Kingdom. 9 Singer, ‘Corporate Warriors’, supra note 6, at 190. 10 Ann Markusen, ‘The Case against Privatizing National Security in Governance’, 16 Governance: An International Journal of Policy, Administration and Institutions 4 (2003) 471-501 at 478. 11 Center for Public Integrity, ‘Colombia: Outsourcing War’ <www.publicintegrity.org/report.aspx?aid =261&sid=100> (visited 4 May 2005). 12 Kelly Patricia O’Meara, ‘Dyncorp Disgrace’, <www.insightmag.com/main.cfm/include/detail/ storyid/163052.html > (visited 2 May 2005). 13 The U.S. Department of Justice, ‘CIA Contractor Indicted for Assaulting Detainee Held at U.S. Base in Afghanistan’, 17 June 2004, <www.usdoj.gov/opa/pr/2004/June/04_crm_414.htm> (visited 2 May 2005).

Finnish Yearbook of International Law (Vol. XV, 2004) 292 __________________________________________________________________ ‘get things done’.14 Furthermore, PMCs might hire individuals who may be naturally drawn to mercenary work or persons who have been forced out of the public sphere.15 The ultimate legal problem with violations of international human rights and humanitarian law committed by private contractors relates to questions of accountability. There is a lack of clear lines of accountability when it comes to private contractors. The company can say it is the private contractors acting individually or just abusing their powers while the state purchasing the services will claim that the responsibility lies with the company and not with itself. Who is then to be held responsible for the violations of this new industry? Is it the State who hires the contractors, the PMC who sells the services or is it the individual himself? Or shall the responsibility extend to the host state of the PMC? Soldiers of national armies who commit war crimes can be prosecuted in national courts and possibly in the newly established International Criminal Court (ICC). However, the legal framework regarding private contractors and human rights violations seems far from settled.

Accountability through State Responsibility During the recent years the focus of attention concerning grave breaches of international humanitarian law has laid on individual criminal responsibility. The International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the Former Yugoslavia (ICTY) have paved the way for the establishment of the ICC, thus, even further strengthening the importance of individual criminal responsibility. Indeed, individual criminal responsibility plays an important role in holding non-state actors responsible for grave breaches of international humanitarian law and demonstrates a shift in focus from states to individuals. While this development is to be welcomed, the role of the state in this respect should not be forgotten. States are still the primary subjects of international law, the ones who take obligations upon them. If states are behind violations, thus not living up to their commitments, this should also be acknowledged. Whenever a state commits an internationally wrongful act, it entails the responsibility of the state. However, there is no corresponding principle holding that every violation of international law by an individual calls for penal responsibility.16 Furthermore, state Singer mentions the use of fuel air explosives in Angola as an example of using highly effective weapons in spite of the torturous injurious they cause. Singer, ‘Corporate Warriors’, supra note 6, at 214. 15 Singer, ‘Corporate Warriors’, supra note 6, at 215. 16 René Provost, International Human Rights and Humanitarian Law (Cambridge University Press, 2002) at 103-104. 14

Private Acts or Public Wrongs? 293 __________________________________________________________________ responsibility provides mechanisms for reparation in a much more comprehensive manner than the mere prosecution of individual offenders.17 Many violations of international human rights and humanitarian law committed by non-state actors can be looked at through the prism of state responsibility. Even though states, as a general rule, are not responsible for the conduct of non-state actors, it is well settled that acts of private actors can be attributed to the state, if the existence of a real link between the non-state actor and the state can be proven. Therefore, what at the beginning seemed like a ‘private act’ could in fact be an ‘act of state’. It is important to recognize that states increasingly use actors outside their own structure in performing governmental functions and consequently in fulfilling its international obligations. From this should not follow that states can escape responsibility for violations of their international obligations. Using the existing law of state responsibility enables us to close alleged legal gaps regarding the accountability of PMCs and their employees for abuses. The purpose of this article is to study whether the United States could be held internationally responsible for the abuses committed by the private military contractors in Iraq. This basic question is two-folded: proving that the United States cannot escape responsibility because of outsourcing its functions as well as showing that the violations committed by non-state actors, in this case that of private contractors, do not go unpunished just because they are not directly regulated in international law. Several questions are raised in the course of the study. What is the relationship between the state and the private contractor? Can the acts of the contractor be attributed to the state or are they merely acts of private persons? When do private acts become public wrongs? This study purports to show that the private contractors were acting as agents of the United States thus leaving its government internationally responsible for the abuses that occurred in Abu Ghraib. Since it is well settled that breaches of international human rights and humanitarian law were committed in Abu Ghraib, the present article will focus on the attribution of the conduct of the private military actors to the United States. Consequently, this study will examine the general rules of attribution found in the International Law Commission’s (ILC) Articles on State Responsibility to the case of Abu Ghraib along with the most recent jurisprudence and state practice.

17 Hans Wassgren, ‘State Responsibility for Violations of International Humanitarian Law’, in Matti Tupamäki (ed.), Finnish Branch of International Law Association 1946-1996: Essays on International Law (Publications of the Finnish Branch of the International Law Association, 1998) 303-325 at 304.

Finnish Yearbook of International Law (Vol. XV, 2004) 294 __________________________________________________________________

The Search for Agency Navigating between Public and Private The rationale behind the unwillingness to punish the private contractors is the claim by the United States that they are civilians. Thus, the abuses committed were private acts. However, it is now time to put the arguments of the United States aside and proceed to an analysis of the general rules of attribution in international law in order to establish whether the acts committed were private acts or acts that can be attributed to the United States. In order to establish the responsibility of the United States for the abuses committed by the private contractors it will have to be shown that their acts are attributable to the United States and that the acts amounted to a breach of its international obligations.18 The existence of a breach of an international obligation has already been established by investigations of the United States itself. The American soldiers who committed the acts have been courtmartialled. With regard to the acts of the soldiers both elements have been fulfilled, but the private military contractors who participated in the abuses, and allegedly were even directly or indirectly responsible for them, have gone unpunished. As the analysis below will focus on the corpus of secondary rules of attribution, there is no need to go in the specific content of the primary rules breached. It suffices to conclude that the acts amounted to violations of international human rights and humanitarian law. The separation between public and private is the obvious starting-point in the law of state responsibility as well as in the whole system of international law. The state is merely an abstraction, and as already the Permanent Court of International Justice (PCIJ) observed in German Settlers in Poland: ‘States can only act by and through their agents and representatives’19. Thus, the state is not responsible for the acts of all entities within the scope of its territory or jurisdiction. The basis for this limitation is apparent: it is thought both impractical and undesirable for the state to be responsible for the private acts of its citizens or even all persons or entities within its jurisdiction. If the state were responsible, it would then have to assume the position of insurer of the victim in countless cases.20 The conditions for an internationally wrongful act are to be found in Article 2 of the ILC’s Articles on State Responsibility: ‘There is an internationally wrongful act of a State when conduct consisting of an action or omission: (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation of the state.’ See GA Resolution 56/83, 12 December 2001. 19 German Settlers in Poland, Advisory Opinion, PCIJ Series B, No. 6 (1923), at 22. 20 David D. Caron, ‘The Basis of Responsibility: Attribution and Other Trans-Substantive Rules’, in Richard B. Lillich & Daniel Barstow Magraw (eds), The Iran-United States Claims Tribunal: Its Contribution to the Law of State Responsibility (Transnational Publishers, Inc.: New York, 1998) 109-184 at 127. 18

Private Acts or Public Wrongs? 295 __________________________________________________________________ The argument that a state is responsible only for its own acts corresponds to the present conception of society, which separates between public and private acts. In order to set the border between public and private, between acts that can be ascribed to the state and those acts that cannot, the rules of attribution exist. The corpus of secondary rules of attribution is expected to operate in the same way with regard to all primary or substantive rules, due to which they sometimes are labelled as ‘trans-substantive rules’.21 The attribution rules are of particular trans-substantive importance since they separate the public realm from the private, thus, delineating the edge of state responsibility. The rules of attribution have been criticised for upholding the dichotomy of public and private in international law, a traditional view of the role of the state. Chinkin, claims that the rules of attribution with their universal applicability assume a commonly accepted rationale for distinguishing between the conduct of state organs and that of other entities. The fact that this rationale, i.e. the line between public and private activities, depends upon philosophical, mostly western, convictions about the proper role of a government makes it questionable.22 The concern for whether the rules of attribution sufficiently take into account the contemporary changes in the domain of governmental function are legitimate. Privatization and self-regulation have reduced areas of direct governmental control; states increasingly rely on persons and entities outside the state structure to perform activities that used to belong to the exclusive domain of the state. Does it follow from this that the sphere of international responsibility is reduced? Although there exists a line between public and private activities prima facie, the rules of attribution are designed to take account of situations in which the lines of public and private are blurred. In some instances it may even be possible to show that the conduct of ostensibly private actors, in fact relates to the exercise of public power, thereby allowing attribution to the state. The question that still remains is how to separate state action from purely private acts.

The International Law Commission’s Rules on State Responsibility and the Starting- Point for Attribution Although the law of state responsibility is one of the oldest branches of international law, it took the ILC four decades of work under the guidance of five Special Rapporteurs to codify and develop the rules on state responsibility. The Ibid., at 110. Christine Chinkin, ‘A Critique of the Public/Private Dimension’, 10 European Journal of International Law 2 (1998) 387-395 at 390. 21 22

Finnish Yearbook of International Law (Vol. XV, 2004) 296 __________________________________________________________________ Articles, adopted after two readings in 2001, contain eight rules on attribution, two of which appear more relevant than the others with reference to the case of Abu Ghraib: Article 5 ‘Conduct of persons or entities exercising elements of governmental authority’ and Article 8 ‘Conduct directed or controlled by a State’. However, before examining these rules the starting-point for the process of attribution needs to be addressed. Inherent in the rules is a search for a sufficiently close relationship of the act to the state. Two methods can be identified in establishing a link between an actor and the state: 1) by presumption of a link in certain specified cases, or 2) by the establishment of a link through proof of a principal-agency relationship. 23 The first rule on attribution in the Articles forms a point of departure in the whole search for agency. Here, the direct connection between a state and its organs is acknowledged. Article 4 reads: 1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central government or of a territorial unit of the State. 2. An organ includes any person or entity which has that status in accordance with the internal law of the State.24

According to the rule the acts of persons who form part of the internal machinery of the state, i.e. are organs according to the internal law, are to be considered an act of state under international law. Here, international law relies on facts provided by internal law and as a consequence there is a presumption of attribution for actors that are de jure part of the state25. In other words, acts of various branches of government as well as governmental ministries and agencies, which carry out

Caron, ‘The Basis of Responsibility’, supra note 20, at 128-129. GA Res. 56/83, 12 December 2001. The final articles, commentaries and prior drafts all appear in James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge University Press, 2002). 25 The attribution to the state as a subject of international law can take place only on the basis of international law itself. This notwithstanding, international law may for its own purposes take account of the situation existing in municipal law, but the question of international responsibility concerns the state as a ‘person’ under international law and should not be confused with the notion of state as a person under municipal law. Consequently, the consideration of certain acts as acts of state in international law may be based on criteria that are both wider and more limited than the corresponding in municipal law. Yearbook of the International Law Commission (YBILC) (1971) vol. II, Part One, at 233. 23

24

Private Acts or Public Wrongs? 297 __________________________________________________________________ governmental functions, are presumptively attributable to the state because the state by its own law has admitted to such a relationship26. Then, how does this all relate to the private military contractors that are the focus of this study? They do not possess the status of an ‘organ’ of the state in the sense laid down in Article 4. They are not formally part of the armed forces, although they in fact might act as if they were. The basic question that emerges is what status is afforded to the contractors in the contracts between the U.S. government and the PMCs rendering the contractors. The contracts surely form part of the internal law of the United States, but they do hardly provide that the private contractors are incorporated into the armed forces of United States. Neither is it apparent that the intention of Article 4 was to cover cases such as this. However, attribution of conduct to a state is not limited to proper state organs. The rule of attribution of conduct of state organs is nonetheless an obvious startingpoint, since in order to prove principal-agency relationship between the United States and the contractors in Abu Ghraib, an organ of the state must have authorized the conduct directly or indirectly.

Conduct of Persons or Entities Exercising Elements of Governmental Authority – Article 5 Already in the 1970’s, the ILC recognised that new entities were partly taking over public functions traditionally performed by the state. Consequently, in order to complete the picture the rules on attribution also had to deal with the conduct of bodies which were not organs stricto sensu, but nevertheless were authorized to exercise governmental authority. Article 5 is intended to cover the increasingly common phenomenon of para-statal entities as well as situations where former state corporations have been privatized but retain certain public or regulatory function 27. Article 5 reads: The conduct of a person or an entity which is not an organ of the State under article 4 but which is empowered by the law of the State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance.28

Caron, ‘The Basis of Responsibility’, supra note 20, at 130. Crawford, The International Law Commission’s Articles, supra note 24, at 100. 28 GA Res. 56/83, 12 December 2001. 26

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Finnish Yearbook of International Law (Vol. XV, 2004) 298 __________________________________________________________________ The ultimate motivation behind the provision is the phenomenon of decentralization and the will to treat all states on an equal footing. As the ILC stated: ‘If the same public function were performed in one State by organs of the State proper and in another by para-state institutions, it would indeed be absurd if the international responsibility of the State were engaged in one case and not in the other’29. This statement reflects the premise that a state should not be able to escape its responsibility because of outsourcing. The intention behind Article 5 corresponds to the case of outsourcing military services as was done in Abu Ghraib. Nevertheless, a closer look at the article is needed to show whether it is applicable to the private contractors and their companies. The term ‘entity’ reflects the wide variety of bodies which, though not state organs, may be empowered by the law of a state to exercise elements of governmental power. Crawford enlists public corporations, semi-public entities, public agencies of various kinds and even private companies in special cases, as included within the meaning of ‘entity’30. Furthermore, the entity, such as a private company, must in each case be empowered by the law of the state to exercise functions of a public character normally exercised by state organs, and the conduct of the entity must relate to the exercise of the governmental authority concerned. Article 5 does not provide a precise meaning or scope of what is meant by ‘governmental authority’. Crawford concludes that what is regarded as ‘governmental’ depends on a particular society, its history and traditions.31 The jurisprudence of the Iran-U.S. Claims Tribunal provides examples of attribution of conduct of entities exercising public power to the Iranian state. In Hyatt International Corporation v. Iran the claimant alleged the government of Iran for e.g. the expropriation of hotel management contract rights, although the actual taking was done by the Foundation for the Oppressed. According to Iran, the foundation was a non-government charity foundation whose acts could not be attributed to Iran. Nonetheless, the Tribunal found that ‘[i]n view of the circumstances of its establishment and mode of governance, and in view of the functions it fulfils, the Tribunal concludes that the Bonyad Mostazafan, or Foundation for the Oppressed, has been and continues to be an instrumentality controlled by the Government of the Islamic Republic of Iran.’ 32 However, in Schering Corporation v. Iran the Tribunal did not consider the acts of a Worker’s Council at Schering’s to be attributable to Iran. As with the Foundation for the YBILC (1974) vol. I, at 8. Crawford, The International Law Commission’s Articles, supra note 24, at 100. 31 Ibid., at 101. 32 Hyatt International Corporation v. Iran, 17 September 1985, 9 Iran-United States Claims Tribunal Reports (C.T.R.) 72 (1985-II), at 94. 29

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Private Acts or Public Wrongs? 299 __________________________________________________________________ Oppressed, the Worker’s Councils were not de jure organs of Iran, consequently the issue was whether the Worker’s Councils were authorized to exercise governmental authority. The Tribunal concluded that ‘[t]he constitutional and regulatory framework for the creation of Worker’s Councils do not indicate that the Councils were to have other duties than basically representing the workers’ interest vis-à-vis the management of companies and institutions and to cooperate with the management. That the formation of the Councils was initiated by the State does not in itself imply that the Councils were to function as part of the State machinery.’33 Undoubtedly, the rule contained in Article 5 of the Articles on State Responsibility seems to cover outsourcing of military services to PMCs: the PMC, although completely privately owned, was empowered by a specific contract to work in Iraq. The functions performed by the contractors in Abu Ghraib apparently included at least interrogation and translation services. Interrogations are definitely something usually conducted by the armed forces itself. Moreover, since all military activity has traditionally been considered the prerogative of the state only, it can consequently only be conceived as having a public character. The assumption that Article 5 covers the case presently under study is further strengthened by the fact that the ILC’s commentary to the article mentions private security firms that may be contracted to act as prison guards and which may in that capacity exercise public powers, such as detention and disciplinary acts.34 The decisive criterion is not whether an entity can be classified as public or private but whether it is empowered to exercise governmental authority. Thus, the conduct of a railway company to which certain police powers have been granted will be regarded as an act of state under international law only if it concerns the exercise of those powers, but not if it concerns other activities such as sale of tickets.35 Yet, Article 5 does not entirely reflect the circumstances in Abu Ghraib. The discussions in the ILC concerning Article 5 show its close relationship with Article 8, which lays down that conduct directed or controlled by a state is attributable to it. The situation in Abu Ghraib showed that the United States had by contract with a PMC, hired personnel to work alongside with its own soldiers. There are no indications to the fact that one PMC was in charge of a specific or separate unit, or of a whole specific function. In fact, the contractors who worked in Abu Ghraib were employees of different firms. Thus, in order to perform their functions, they had to rely on instructions given by the armed forces of the United States. Logically, the only way the United States could achieve its goals with the prisoners in Abu Ghraib would be through having all persons working in the prison to co-operate. Schering Corporation v. Iran, 13 April 1984, 5 C.T.R. 361 (1984-I), at 370. Crawford, The International Law Commission’s Articles, supra note 24, at 100. 35 Ibid., at 100-101. 33

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Finnish Yearbook of International Law (Vol. XV, 2004) 300 __________________________________________________________________ However, the United States has consistently denied that the private contractors were under its chain of command. Despite the fact that neither the contracts nor the real working conditions are known to the public, it seems fair to conclude that it was not the different PMCs who were in charge of the conduct of their employees but that it had to be the United States. In this instance the PMCs appear to have been more of an employment office, supplying the armed forces of the United States with manpower. One of the PMCs whose personnel were involved in Abu Ghraib has declared that its employees were never in charge of military personnel in Abu Ghraib. According to the company its personnel ‘serving in Iraq at all times have been under the operational control and direction of the U.S. military’.36 But does the application of Article 5 require the private contractors to be fully in charge of the performance of their task in order for it to be classified as ‘exercising elements of governmental authority’? While the ILC’s Commentary to the Articles fails to provide a definitive conclusion on the matter, Article 5 would clearly be applicable to cases where PMCs are hired to perform a specific operation, completely in the hands of the company, e.g. the operations in the Balkans. Less clear is, however, whether entities empowered by the state to perform activities under the direction and control of the state fall under Article 5.37 On these grounds, the relevance of Article 5 to the private contractors in Abu Ghraib can be called into question. Furthermore, providing translation and interpretation services can hardly be viewed as ‘governmental authority’, one of the prerequisites of Article 5. Working alongside the regular soldiers of the U.S. army and supposedly under U.S. operational control, as they appear to have been in Abu Ghraib, we must now turn to examine the next pertinent rule of attribution, which relates to conduct directed or controlled by a state.

Conduct Directed or Controlled by the State – Article 8 The examination into the rules of attribution in this study has moved from proper state organs and entities empowered to exercise public power to organs outside the internal law of the state, namely to agents acting in fact on behalf of the state. The rules of attribution would be incomplete if this category was left outside. Thus, the ‘CACI: Personnel not in charge in Iraq’, (visited 3 May 2005). 37 The Commentary to Article 5 lays down that entities which are empowered by internal law to exercise governmental authority are to be distinguished from situations where an entity acts under the direction or control of the state, which again are covered by Article 8. See Commentaries to the draft articles on Responsibility of States for internationally wrongful acts, Report of the International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, UN Doc. A/56/10 (2001), ch. IV.E.2. 36

Private Acts or Public Wrongs? 301 __________________________________________________________________ principles of unity and effectiveness in international law require that also those actors outside the formal structure of the state, but forming part of the effective organization of the state, be taken into account. These de facto organs, as they are more commonly known in the literature, play an important role especially in contemporary armed conflicts.38 Therefore, we shall proceed to analyse the case of the private contractors in Iraq in the light of the rules pertinent to de facto organs. Already Special Rapporteur Ago acknowledged the need to differentiate between acts of organs of certain entities which, although separate from the state, had powers under the internal legal order of the state to exercise a portion of public power on the one hand, and attribution to the state of acts of persons or groups of persons who were in no way part of the machinery of the state but still in special circumstances in fact performed state functions, on the other hand 39. The latter takes often place when states supplement their own action and that of their subordinates by the action of private persons or groups. Rapporteur Ago recognized the existence of situations where private natural or legal persons, while definitely remaining as such, are entrusted by the public authorities with the performance of a specific task, such as private persons or groups used as auxiliaries in the armed forces.40 In this connection, reference is often made to the Zafiro case which dates back to the Spanish-American war but was not settled until 1925. The Zafiro was a privately owned ship, which was being used during the war by the United States as a supply ship. The captain and the Chinese crew of the ship were under the command of a United States Naval Officer. The United States was held responsible for looting by the civilian crew since the vessel was being used as a supply ship for United States naval operations and its captain and crew were, for this purpose, in fact under the command of a naval officer who had come on board to control and direct the movements of the ship.41 The same rule was applied in the Stephens case decided in 1927 by the Mexico/United States of America General Claims Commission. Stephens, a national of the United States, had been killed by Valenzuela, a member of a group of auxiliaries of the Mexican forces. The Commission found that Valenzuela had to be assimilated to a soldier and that Mexico had to be held responsible for his acts. With reference to the auxiliary forces, the Commission observed that ‘it is difficult to determine with precision the status of these guards as

38 Claus Kress, ‘L’organe de facto en droit international public, réflexions sur l’imputation à l’Etat de l’acte d’un particulier à la lumière des développements récents’, 105 Revue générale de droit international public (2001) 93-144 at 96. 39 YBILC (1974), vol. I, at 32. 40 YBILC (1974) vol. II, Part One, at 283. 41 YBILC (1971), vol. II, Part One, at 264.

Finnish Yearbook of International Law (Vol. XV, 2004) 302 __________________________________________________________________ an irregular auxiliary of the army, the more so as they lacked both uniforms and insignia; but at any rate they were “acting for” Mexico.’42 Since the rule of attribution to the state of the conduct of persons who are in fact acting on its behalf was considered undisputed, it found its way into the first reading of the Articles. Draft Article 8 (a) stated that if ‘it is established that such person or group of persons was in fact acting on behalf of that State’ their conduct shall be considered as an act of the state under international law. However, the ILC’s discussions show there were diverging views on what fell under the scope of the provision. In Special Rapporteur Ago’s opinion, draft Article 8 applied inter alia to groups which, though not belonging to the regular army of the state, carried out military activities in time of war.43 Mr. Tsuruoka, however, believed that watchmen employed by big companies, who were often ex-policemen, were outside the scope of draft Article 8 because they exercised no police power although they engaged in similar activities in the performance of their duties. Meanwhile, Mr. Bedjaoui stressed that the provision covered a very wide range of situations, in particular, the case of chartered companies, which were really private companies that had appropriated attributes of public power for their own advantage44. Draft Article 8 requires a factual relationship, the existence of a real link, between the state and the person or group of persons acting on its behalf. What is then the decisive criterion? The ILC’s commentary to the article at the first reading mentions ‘instigation’ as the ultimate proof.45 In the Commission’s own words: [i]n each specific case in which international responsibility of the State has to be established, it must be genuinely proved that the person or group of persons were actually appointed by organs of the State to discharge a particular function or to carry out a particular duty, that they performed a given task at the instigation of those organs.46

Later on the ILC makes clear that a certain degree of maintenance is required together with ‘instigation’ by stating that: where the government is known to encourage and even promote the organization of armed groups, to provide them with financial assistance, training and weapons, and to coordinate their activities with those of its own forces for the purpose of possible operations, and so on, the groups in question cease to be individuals from the standpoint of international law. They become formations Ibid. YBILC (1974), vol. I, at 32. 44 Ibid., at 43. 45 Kress, ‘L’organe de facto’, supra note 38, at 101-102. 46 YBILC (1974), vol. II, Part One, at 284-285. 42 43

Private Acts or Public Wrongs? 303 __________________________________________________________________ which act in concert with, and at the instigation of, the State, and perform missions authorized by or even entrusted to them by that State. They then fall into the category of persons or groups which are linked, in fact if not formally, with the State machinery and are frequently called ‘de facto organs’[…].47

In spite of the original intentions of the ILC, the last Special Rapporteur James Crawford made substantial changes to Article 8. The final version of the rule on the de facto organs reads as follows: The conduct of a person or group of persons shall be considered an act of state under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of that state in carrying out the conduct.48

According to Special Rapporteur Crawford, the initial formulation acknowledged attribution only in cases of express authorization or instruction. However, the existence of specific instructions would be difficult to demonstrate especially in cases concerning unlawful operations.49 In order to remedy the shortcomings of the earlier formulation and consequently extend its application to conduct carried out under a state’s direction or control, the final article expressly mentions instruction, direction and control as basis for attribution. Each case will depend on its own facts, in particular those concerning the relationship between the instructions given or the direction or control exercised and the specific conduct complained of. In the text of the article, the three terms ‘instructions’, ‘direction’ and ‘control’ are disjunctive – it is sufficient to establish any of them. 50 Nevertheless, the instructions, direction or control must relate to the purportedly internationally wrongful act. Kress maintains that the term ‘instructions’ reflect the original decisive element ‘instigation’ and that the insertion of ‘direction’ and ‘control’ just serves the purpose of lowering the threshold for attribution.51 After having established the criteria the question then becomes how much direction or control the state must possess in order to cross the threshold of attributability. International jurisprudence concerning de facto organs developed simultaneously with the drafting of Article 8, thus giving effect to the rule set forth. In fact, international jurisprudence highly influenced the crystallization of the final

YBILC (1975), vol. II, at 80. GA Res. 56/83, 12 December 2001 (emphasis added). 49 First report on State responsibility by Mr. James Crawford, Special Rapporteur, Addendum, UN Doc. A/CN.4/490/Add.5, at 22-23. 50 Crawford, The International Law Commission’s Articles, supra note 24, at 113. 51 Kress, ‘L’organe de facto’, supra note 38, at 119-120. 47

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Finnish Yearbook of International Law (Vol. XV, 2004) 304 __________________________________________________________________ rule on attribution to the state of acts of de facto organs. However, the disputes about the contours of this rule have centred on the degree of control states must exercise over private actors to trigger an attribution of responsibility.52

How Much Control Is Needed? From Instigation to Effective Control Shortly after the ILC’s formulation of the first version of Article 8, the International Court of Justice had before it the Hostages case53, which involved the question of de facto agents. In November 1979 the United States Embassy in Tehran was invaded by militants, leaving all the diplomatic and consular personnel in the premise as hostages. From the outset of the attack on its embassy United States protested to the Government of Iran both at the attack and at the seizure and detention of hostages. The Court had to look at the facts from two points of view. The first task was to determine whether the acts of the militants could be attributed to the Iranian state while the second referred to deciding on whether any breach of an obligation had occurred.54 According to the Court the events in Iran could be divided into two separate phases. The first of these phases covered the armed attack on the U.S. Embassy by militants on 4 November 1979, the overrunning of its premises, the seizure of its inmates as hostages, the appropriation of its property and archives and the conduct of the Iranian authorities in the face of those events. The Court started by stating that there was nothing to suggest that the militants had an official status of the Iranian state. Since they could not be considered as ‘organs’ of Iran, their conduct could be attributed to Iran only if it was possible to establish that the militants acted on behalf of the state. In the Court’s view, this required that the militants had been charged by some competent organ of the Iranian state to carry out a specific operation. However, the information available to the Court in no way proved the existence of such a link at that time and consequently the acts of the militants could not be attributed to Iran. 55 The second phase comprised the whole of series of facts which occurred following the completion of the occupation of the United States Embassy by the militants. The support shown by Ayatollah Khomeini to the Derek Jinks, ‘State Responsibility for the Acts of Private Armed Groups’, 4 Chicago Journal of International Law 1 (2003) 83-95 at 88. 53 Case concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), International Court of Justice (ICJ) Reports (1980) 3. 54 Ibid., at 29. 55 Ibid. 52

Private Acts or Public Wrongs? 305 __________________________________________________________________ militants fortified their actions, and by 17 November the seal of official government approval was set by a decree laying down that ‘[t]he noble Iranian nation will not give permission for the release of the rest of them.’56 In light of the changed circumstances the Court found that the approval given to the acts of the militants and other authors of the invasion by the Ayatollah Khomeini and other organs of the Iranian state translated the continuing occupation into acts of Iran. They had become agents of the Iranian state for whose acts the state itself was internationally responsible.57 The Court’s findings in the first phase of the Hostages case followed the Commentary by the ILC setting forth ‘instigation’ as the decisive element. The attribution of the conduct of militants to Iran in the second phase, however, changes the picture. Now, the emphasis appears to lie on ‘approval’. Kress, has recognised three different interpretations of the Court’s ruling in the literature. The first emphasizes the ‘official approval’ as the crucial criterion; the second finds the ruling to be in complete harmony with the element of ‘instigation’58 and the third interprets the Court as applying the ‘control’ element. The statements made by Khomeini to the effect that the Iranian state will not permit the release of the hostages are taken to demonstrate control over the militants.59 The most well known case with regard to attribution of conduct of de facto organs in the jurisprudence of the ICJ is the Nicaragua case.60 In its application to the Court Nicaragua claimed that the United States had acted in breach of its international obligations by the use of force against Nicaragua and otherwise intervening in its internal affairs by supporting guerrillas fighting to overthrow the Nicaraguan government. The Court dealt with the question of attribution from two points of view; first, with regard to the relationship between the United States and the guerrilla forces called contras and secondly, in relation to the attribution of conduct by Unilaterally Controlled Latino Assets (UCLA).61 The Court examined in detail the creation, development and activities of the contras and the role of United States in relation to it, due to Nicaraguan claims that Ibid., at 33-34. Ibid., at 34. 58 According to Condorelli the Court’s judgment in the Hostages case forcefully support the view that ‘instigation’ is the decisive criterion. See Luigi Condorelli, ‘L’imputation à l’état d’un fait illicite: solutions classiques et nouvelles tendances’, 189 Recueil des cours de l’Académie de droit international de La Haye 7 (1984-VI) 9-222 at 103. 59 Kress, ‘L’organe de facto’, supra note 38, at 102. 60 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, p.14. 61 In the vocabulary of the CIA, UCLA referred to persons of the nationality of unidentified Latin American countries, paid by, and acting on the direct instructions of United States military or intelligence personnel. ICJ Reports 1986, at 45. 56 57

Finnish Yearbook of International Law (Vol. XV, 2004) 306 __________________________________________________________________ the United States ‘conceived, created and organized a mercenary army, the contra force’.62 In its findings the Court, however, rejected any attribution to the United States. It found no support for the assertions that the United States had ‘created’ the contra force in Nicaragua or that the United States had given direct and critical combat support tantamount to direct intervention by the United States combat forces. On the other hand, the Court held it established that ‘[…] the United States authorities largely financed, trained, equipped, armed and organized the FDN.’63 The Court proceeded with examining ‘whether or not the relationship of the contras to the United States government was so much one of dependence on the one side and control on the other that it would be right to equate the contras, for legal purposes, with an organ of the United States government, or as acting on behalf of that government’.64 In the Court’s opinion it was the question of the degree of control which was relevant in attributing responsibility to the United States. 65 In answering this, the Court stated: All the forms of United States participation mentioned above, and even the general control by the respondent State over a force with a high degree of dependency on it, would not in itself mean, without further evidence, that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State. Such acts could well be committed by members of the contras without the control of the United States. For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that the State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed.66

Reading the long list of factors that the Court considered insufficient for the purpose of attribution, one may be inclined to agree with Kalshoven, who states that ‘one wonders how a State could ever achieve the required high level of control over a body of men operating in another country without actually incorporating it in its armed forces’67. However, contrary to its decision not to attribute the conduct of contras to the United States, the Court found that the acts of UCLA were acts of the

ICJ Reports 1986, at 53. Ibid., at 62. 64 Ibid., at 62. 65 Ibid., at 63. 66 Ibid., at 64-65. 67 Frits Kalshoven, ‘State Responsibility for Warlike Acts of the Armed Forces: From Article 3 of Hague Convention IV of 1907 to Article 91 of Additional Protocol of 1977 and Beyond’, 40 International and Comparative Law Quarterly (1991) 827-858 at 855. 62 63

Private Acts or Public Wrongs? 307 __________________________________________________________________ United States. The attacks were carried out by the UCLA, but ships, boats, guns and ammunition were supplied by the United States. The Court declared: Although it is not proved that any United States Military Personnel took a direct part in the operations, agents of the United States participated in the planning, direction, support and execution of the operations. The execution was the task rather of the ‘UCLAs’, while United States nationals participated in the planning, direction and support. The imputability to the United States of these attacks appears therefore to the Court to be established.68

Why did the Court attribute the acts of UCLA but not that of the contras to the United States? In the latter case the Court noted that general control was not sufficient to generate attribution, but instead effective control was needed. Yet, it did not refer to that concept when it concluded that the acts of UCLA were attributable. In the case of the UCLA ‘planning, direction, support and execution’ was enough for the Court, but regarding the contras ‘direction or enforcement’ would have been required. Two possibilities exist; either the Court applied two different grounds for attribution, that of effective control and planning, direction, support and execution or then the latter amounted to the former. It seems unlikely that the Court would apply two different conditions for attribution in the same judgment and thus in it appears probable that the Court simply regarded ‘planning, direction, support and execution’ as amounting to effective control. Judge Ago (the former Special Rapporteur on State Responsibility) criticised the reasoning of the Court although he adhered to the findings of the judgment. According to him ‘control’ is not a criterion for attributing the conduct of non-state entities to the state. Instead he concluded that: It would […] be inconsistent with the principles governing the question to regard members of the contra forces as persons or groups acting in the name of or on behalf of the United States of America. Only in cases where certain members of [the contras] happened to have been specifically charged by United States authorities to commit a particular act, or carry out a particular task of some kind on behalf of the United States, would it be possible so to regard them. Only in such cases does international law recognize, as a rare exception to the rule, that the conduct of persons, which are neither agents nor organs of a State, nor members of its apparatus even in its broadest acceptation of that term, may be held to be acts of the State.69

68 69

ICJ Reports 1986, at 50-51. ICJ Reports 1986, at 188-189.

Finnish Yearbook of International Law (Vol. XV, 2004) 308 __________________________________________________________________ Even though there was no disagreement between Judge Ago and the majority of the Court as to the result, there was a difference of approach. The Court was prepared to hold the United States responsible for conduct of the contras during specific operations over which the United States was shown to have ‘effective control’, whereas Judge Ago required nothing less than specific authorization of the wrongful conduct itself. Nevertheless, all were in agreement that a general situation of dependence and support were insufficient to justify attribution. 70 However, the judgment in the Nicaragua case did not clarify the elements required to attribute conduct of de facto organs to a state. In fact, it might have just added to the confusion by setting the threshold for attribution quite high. Overall Control An examination into more recent jurisprudence shows that the threshold for attribution of conduct of de facto organs has been lowered from what was laid down by the ICJ in the Nicaragua case. The Iran-U.S. Claims Tribunal has been confronted with the question of de facto organs in cases mostly regarding revolutionary institutions that arose after the revolution in parallel to the official institutions. The issue of de facto organs was clearly presented in Yeager v. Iran71, where the claimant argued that members of the ‘Revolutionary Guards’ expelled him from Iran. The Revolutionary Guards were Ayatollah Khomeini’s supporters who were organized in local revolutionary committees. They served as local security forces and conducted arrests, confiscated property and took people to prison. As to the attribution to Iran of the acts of the Revolutionary Guards, the Tribunal noted that they were not formally recognised as organs during the period relevant to the case. The Tribunal proceeded by noting that it is generally accepted in international law that a state is also responsible for acts of persons in fact acting on its behalf, and as a consequence it attributed the acts of the Revolutionary Guards to Iran. The Tribunal found sufficient evidence to establish that the Guards acted in fact on behalf of the new Iranian government or at least exercised elements of governmental authority in the absence of official authorities. It stated: Under those circumstances, and for the kind of measures involved here, the Respondent has the burden of coming forward with evidence showing that members of ‘Komitehs’ or ‘Guards’ were in fact not acting on its behalf, or were

First report on State responsibility by Mr. James Crawford, Special Rapporteur, Addendum, A/CN.4/490/Add.5, at 18. 71 Kenneth P. Yeager v. The Islamic Republic of Iran, 17 C.T.R. 92 (1987-IV). 70

Private Acts or Public Wrongs? 309 __________________________________________________________________ not exercising elements of governmental authority, or that it could not control them.72

The Tribunal definitely ruled out ‘instigation’ as a criterion for attributability, instead it emphasized knowledge of the conduct and the fact that Iran should have objected to the conduct in order to escape responsibility. Curiously, the burden of proof lies with the respondent, Iran, which is presumed to be in control of the Guards. Thus, the Tribunal indicates that since it is always difficult to establish a de facto rather than de jure principal-agent relationship, it will be assumed that the fact that the state does not attempt to control actors exercising elements of governmental authority establishes a relationship in which the actor, in the state’s view, acts on behalf of the state.73 The criterion of ‘control’ is used in a very general sense; it is only the demonstrated incapability of control which would release Iran from responsibility, otherwise responsibility is directly assumed. The European Court of Human Rights (ECtHR) was faced with the question of attribution in the Loizidou v. Turkey case in 1996. Here, the applicant contended that the continuous denial of access to her property in Northern Cyprus and the ensuing loss of all control over it are attributable to the Turkish Government and constitute a violation of her right to peacefully enjoy her possessions. 74 The Court started with addressing the issue of attribution in accordance with the applicant’s submissions. The applicant claimed that a state cannot by delegation avoid responsibility for breaches of its duties and consequently Turkey must be held responsible for the part of Cyprus it had occupied. Furthermore, it was submitted that Turkey had effective control over the events in the occupied area. The Court held in conformity with the law of state responsibility that responsibility of a party could arise when it as a consequence to military action exercises effective control of an area outside its national territory.75 The Court continued by stating that: It is not necessary to determine whether, as the applicant and the Government of Cyprus have suggested, Turkey actually exercises detailed control over the policies and actions of the authorities of the ‘TRNC’ [The Turkish Republic of Northern Cyprus]. It is obvious from the large number of troops engaged in active duties in northern Cyprus that her army exercises effective overall control over that part of the island. Such control, according to the relevant test and in the

17 C.T.R. 92 (1987-IV), at 103-104. Caron, ‘The Basis of Responsibility’, supra note 20, at 142. 74 Eur.Court HR, Loizidou v. Turkey judgment of 18 December 1996 (merits), Reports of Judgments and Decisions 1996-VI, no. 26, 2216, at 2232. 75 Reports of Judgments and Decisions 1996-VI, no. 26, 2216, at 2234. 72

73

Finnish Yearbook of International Law (Vol. XV, 2004) 310 __________________________________________________________________ circumstances of the case, entails her responsibility for the policies and actions of the ‘TRNC’.76

Thus, the Court rejected the stricter notion of effective control put forward by the ICJ in favour of a more lenient approach stressing overall control. The judgment unfortunately left open the basis and motivation for using the concept, deplorably so since the criterion had not been used in earlier international jurisprudence. The relevance of the Loizidou case for the doctrine of attribution has been called into question by Special Rapporteur James Crawford, who claimed that the case ‘lies in the shadowland between issues of attribution and causation.’77 Furthermore, the ruling has been criticised because it did not examine the facts of the situation but merely proceeded on presumption of control by Turkey.78 Still, it is noteworthy that the majority of the Court regarded itself as applying the rules on attribution. One of the most elaborated analysis of the attribution of de facto organs is found in the judgment of the Appeals Chamber of the ICTY in the case of Prosecutor v. Dusko Tadic.79 In order to settle the question of jurisdiction the Appeals Chamber had to pronounce itself on the international or non-international nature of the conflict in the former Yugoslavia. The decisive issue was whether the Serbian armed forces in Bosnia-Herzegovina amounted to de facto organs of the Federal Republic of Yugoslavia. The Trial Chamber had already dealt with this question in 1997, reaching the conclusion that the armed forces of Republika Srpska could not be considered de facto organs or agents of the Government of the Federal Republic of Yugoslavia after it had applied the effective control test put forward in the Nicaragua case.80 The test of effective control failed to convince the Appeals Chamber on two grounds. First of all, according to the Appeals Chamber the test set forth in Nicaragua case is not consonant with the logic of the law of state responsibility. It noted that: The requirement of international law for the attribution to States of acts performed by individuals is that the State exercises control over the individuals. The degree of control may, however, vary according to the factual circumstances of

Ibid., at 2235-2236. (Emphasis added). First report on State responsibility by Mr. James Crawford, Special Rapporteur, Addendum, A/CN.4/490/Add.5, at 21. 78 Zaim M. Necatigil, The Loizidou Case: A Critical Examination (Center for Strategic Research: Ankara, 1999) at 22. 79 Prosecutor v. Dusko Tadic, Judgement of 15 July 1999, 38 International Legal Materials (ILM) 1518-1609. 80 Prosecutor v. Dusko Tadic a/k/a ‘Dule’ Opinion and judgment of 7 May 1997, Available at <www.un.org/icty/tadic/trialc2/judgement/index.htm> (visited 4 May 2005). 76 77

Private Acts or Public Wrongs? 311 __________________________________________________________________ each case. The Appeals Chamber fails to see why in each and every circumstance international law should require a high threshold for the test of control. Rather, various situations may be distinguished.81

Secondly, the Appeals Chamber held that the test of effective control is at variance with judicial and state practice. The Chamber maintained that effective control has been required only in relation to individuals acting on behalf of the state, but by contrast, judicial and state practice has applied a different test with regard to military or paramilitary groups.82 The Appeals Chamber recognized the existence of three different tests. First, where the question at issue is whether a single private individual or a group that is not militarily organised has acted as a de facto organ when performing a specific act, it is necessary to ascertain whether specific instructions concerning the commission of that particular act had been issued by that state to the individual or group in question. Thus, the attribution of conduct of individuals or unorganised groups requires specific instructions. Second, control by a state over subordinate armed forces or militias or paramilitary forces may be of an overall character. This requirement, however, does not go so far as to include the issuing of specific orders by the state, or its direction of each individual operation. Under international law it is by no means necessary that the controlling authorities should plan all the operations of the units dependent on them, choose their targets, or give specific instructions concerning the conduct of military operations and any alleged violations of international humanitarian law. The control required by international law may be deemed to exist when a state has a role in organising, coordinating or planning the military actions, in addition to financing training and equipping or providing operational support to the group. In sum, the Appeals Chamber held the opinion that international law requires overall control when it comes to organised, armed groups.83 On these grounds the Appeals Chamber ultimately found the acts of the Serbian army in Bosnia to be attributable to the Federal Republic of Yugoslavia. In addition to the above, the Appeals Chamber found a third test to exist, the assimilation of the individuals to state organs on account of their actual behaviour within the structure of a state regardless of any possible requirement of state instructions. This test was not explained with the same clarity as the two earlier ones, but the Appeals Chamber states that it related to cases where private individuals act within the framework of, or in connection with, armed forces, or in collusion with state authorities.84 38 ILM 1518, at 1541. Ibid., at 1542. 83 38 ILM 1518, at 1544-1545. 84 Ibid., at 1546. 81

82

Finnish Yearbook of International Law (Vol. XV, 2004) 312 __________________________________________________________________ The Tadic case has been widely referred to in connection with Article 8 of the ILC’s Articles on State Responsibility. Still, the relaxation of the effective control test to overall control in cases with organised groups, has not escaped criticism. Judge Shahabuddeen criticised the Appeals Chamber’s findings in his individual opinion and stated that the effective test should always be applied. De Hoogh has submitted that the Serbian army in Bosnia was nothing else than a subordinate organ of the Federal Republic of Yugoslavia, and as a consequence the Appeals Chamber should not have applied Article 8 of the ILC’s Articles on State Responsibility but instead Article 4 on State organs85. Crawford argues that the circumstances in the Tadic case are largely different from those pertaining to Nicaragua case. The mandate of the ICTY relates only to issues of individual criminal responsibility, not state responsibility86. Sassòli, however, disagrees with this as he maintains that the underlying issues were the same in both the Nicaragua case and the Tadic case.87 Jinks has managed to sum up and catch the essence at the same time. He asserts that ‘[a]lthough the ‘overall control’ test applied in Tadic, did indeed lower the threshold for imputing private acts to states when compared to the ICJ rule, the touchstone of both approaches is that states must direct or control – rather than simply support, encourage, or even condone – the private actor’. 88 Furthermore, he rightly points out that it is important to recall that these tests are, after all, designed to define the circumstances in which private actors are de facto organs of the state. Therefore, the key issue is whether the private acts in question are formally attributable to the state, instead of whether a state is simply complicit in some unlawful conduct. There is indeed a common factor to ILC’s Article 8, the ICJ’s ‘effective control’ test, and the ICTY’s ‘overall control test’; only those acts actually committed on behalf of the state are attributable to it. 89 In addition it can be asserted that although the ‘overall control test’ appears to be more lenient, in practice the difference between the two tests might turn out to be negligible where a court considers all the facts of a particular scenario.90

85 André J.J. de Hoogh, ‘Articles 4 and 8 of the 2001 ILC Articles on State Responsibility, the Tadic case and Attribution of Acts of Bosnian Serb Authorities to the Federal Republic of Yugoslavia’, British Yearbook of International Law, vol. LXXII, 255-292 at 290. 86 Crawford, The International Law Commission’s Articles, supra note 24, at 112. 87 Marco Sassòli, ‘State Responsibility for Violations of International Humanitarian Law’, 84 International Review of the Red Cross 846 (2002) 401-433 at 408. 88 Jinks, ‘State Responsibility’, supra note 52, at 89. 89 Ibid. 90 Clair de Than & Edwin Shorts, International Criminal Law and Human Rights (Sweet & Maxwell: London, 2003) at 19.

Private Acts or Public Wrongs? 313 __________________________________________________________________ A Further Relaxation of the Degree of Control? According to some authors, the recent state practice with regard to the collective responses to the terrorist attacks in the United States on 11 September 2001 suggests that the threshold for attribution has been substantially lowered. 91 In fact, they argue that the international legal response to the terror attacks signalled a subtle but important shift in the law of state responsibility for de facto agents; attributability was no longer dependent on ‘effective control’ but instead ‘harbouring’ has become the ruling principle.92 The argument behind this reasoning relates to the invasion of Afghanistan by the United States and to the attribution of acts of Al Qaeda to the Taliban regime in Afghanistan. The United States asserted the right to attack in selfdefence against Afghanistan because the Taliban regime had supported and harboured leaders of the Al Qaeda terrorist network. Put it differently, the United States sought to attribute to Afghanistan the acts of a non-state actor, namely Al Qaeda. Instead of trying to establish that Al Qaeda was in fact acting on behalf of Afghanistan, the argument purported that harbouring and support was enough for attributing the acts to Afghanistan. Thus, the tests of effective and overall control were completely disregarded.93 This type of reasoning represents a move to ‘complicity’ as a sufficient condition for attributability. Slaughter and Burke-White subscribe to the view that the traditional ‘effective control’ test for attributing acts to a state seems insufficient to address threats posed by terrorists and states that harbour them. They uphold the ‘effective control’ test when a government and terrorists in a country concerned can be distinguished, but in cases where the terrorists and the state are indistinguishable, terrorist attacks should equal to an act of state.94 Condorelli has separated international responsibility for a terrorist act from the responsibility for the help and support given by a state. In his opinion the former is still not attributable to the state, whereas the latter can be described as an act of state due to unlawful intervention in the internal affairs of another state.95 However, as a result of the developments following the 11 September 2001, he has admitted that a terrorist attack could in fact be seen directly as an act of a state, committed by a group which is either de jure or de facto organ of the Taliban regime of Afghanistan.96 At least Jinks and Condorelli seem to subscribe to such a standing. Jinks, ‘State Responsibility’, supra note 52, at 88. 93 Sassòli, ‘State Responsibility for Violations’, supra note 87, at 409. 94 Anne-Marie Slaughter & William Burke-White, ‘An International Constitutional Moment’, 43 Harvard International Law Journal 1 (2002) 1-21 at 20. 95 Luigi Condorelli, ‘The Imputability to States of Acts of International Terrorism’, 19 Israeli Yearbook on Human Rights (1989) 233-246 at 239. 96 Luigi Condorelli, ‘Les attentats du 11 septembre et leurs suites: où va le droit?’, Revue Générale de Droit International Public, Tome 105/2001/4, 829-848 at 839. 91 92

Finnish Yearbook of International Law (Vol. XV, 2004) 314 __________________________________________________________________ Currently, it can hardly be concluded that the threshold for attribution of acts of private actors, i.e. non-state actors to a state has been lowered from effective control to harbouring. The case of Al Qaeda and Afghanistan related to terrorism, self-defence and use of force. It remains to be seen whether this change in the rules of attribution will be applicable to all states and future similar cases concerning the fight against terrorism, not to mention other fields of international law – something required for a rule to be a legal rule.97

The Private Military Contractors in Abu Ghraib as De Facto Organs of the United States It has been established above that the private military contractors cannot be seen as proper state organs or as persons or as an entity exercising elements of governmental authority in the case under study. Thus, the strongest argument for attributing their acts to the United States lies with Article 8 of the ILC’s Articles, Conduct directed or controlled by a state. The ILC has noted in the travaux préparatoires to Article 8 that de facto organs are often used as a supplementary means with the aim of strengthening the armed forces of a state. In this connection reference is often made to volunteers or auxiliaries, and contemporary contractors can be seen as nothing else than a modern feature of this phenomenon. To return to the words of Special Rapporteur Ago: ‘The principle stated in Article 8 also applied to groups which, though not belonging to the regular army of the State, carried out military activities in time of war.’98 Also, the discussion of private companies that had appropriated elements of public power focused on Article 8. In short, Article 8 was seen to cover cases where private agents exercised public functions on behalf of the state. Although the rule set forth in Article 8 was undisputed, its application still seems difficult and as the relevant jurisprudence indicates, the emphasis has been put on different criteria. Nonetheless, the application of the rule always requires an examination into the facts and circumstances of each specific case. Furthermore, it is clear that the application of Article 8 requires the existence of a link between the agent and the state. What criteria are actually needed to establish the link has varied from instigation to different levels of control. The commentaries to the first version of Article 8, which was adopted at ILC’s first reading of the Articles, refer to instigation in conjunction with maintenance as evidence of a link between the agent 97 98

Sassòli, ‘State Responsibility for Violations’, supra note 87, at 409. YBILC (1974) vol. I, at 32.

Private Acts or Public Wrongs? 315 __________________________________________________________________ and the state. However, Article 8, as finally adopted, explicitly refers to ‘instructions’, ‘direction’ or ‘control’ as the ultimate proof of a genuine link. The jurisprudence has focused on ‘control’ as the decisive criteria with different interpretations on the degree of state control needed. The ICJ has required the control to be ‘effective’ whereas more recent case law seem to have lowered the amount of control to ‘overall’ or even lower. Therefore, the analysis into the link between the private contractors and the United States must take account of all aspects in their relationship regarding creation, planning, direction, support and execution of their conduct and more specifically of the acts that constituted violations of human rights or humanitarian law. The element of creation seems of no help with regard to the case of the private contractors in Abu Ghraib, since instead of a specific military unit or force such as the contras, we are dealing with relatively few individuals serving in Abu Ghraib. The private contractors are recruited by PMCs and then hired by a client, in this case the United States government, but in no way did the United States ‘create’ these contractors. The hiring of supplementary personnel does not in itself demonstrate anything more than a need for military expertise or human resources. It does not seem probable, although it cannot totally be excluded, that the United States government hired these contractors specifically to perform acts that would have been considered unlawful if committed by their own soldiers, i.e. to commit unlawful acts. However, the contracts between the companies and the United States definitely show the existence of a link between the private contractor and the state. The claim of the United States armed forces that they have no control over persons who they have hired themselves to work in cooperation with regular soldiers in the U.S. run facilities seems unconvincing. As stated earlier, the private contractors can hardly have been acting on their own in Abu Ghraib. Instead, their acts have to be seen as a part of the overall activity in that prison as they were in fact working together with regular American soldiers. It is hardly possible that they would have been planning and executing their acts without any instructions, directions or control by the United States government. Brigade General Karpinski was in charge of the whole Abu Ghraib facility, while Colonel Pappas was commander of that Military Intelligence Brigade the suspected contractors were assigned to.99 Although the United States has maintained that the private contractors never were under their chain of command, the PMCs have alleged the contrary. According to one of the PMCs involved, it provided only administrative supervision over its personnel, ‘such as managing and monitoring their pay, billeting and leave schedules. Control over the interrogation operations at Abu Ghraib prison and

99

‘Article 15-6 Investigation of the 800th Military Police Brigade’, supra note 1, at 415, 439.

Finnish Yearbook of International Law (Vol. XV, 2004) 316 __________________________________________________________________ elsewhere has been vested exclusively in the military chain of command’. 100 This statement is confirmed by a sworn testimony in front of the U.S. Senate Armed Services Committee, where Deputy Commander Smith from U.S. Central Command, admitted that the private contractors were not in charge of the interrogations in Abu Ghraib, but that the person in charge was the Brigade Commander for the Military Intelligence Brigade. U.S. Secretary of Defense Rumsfeld verified this by stating that private contractors ‘are responsible to the military intelligence who hire them, and have the responsibility for supervising them.’101 One of the contracts concluded with a PMC involved, specifies that the contractors were to ‘provide oversight and other directed intelligence support to [military] screening and interrogation operations, with special emphasis on HighValue detainees.’ Furthermore, the contract stipulates that contractors are to be ‘directed by military authority’ and that the contracting company is responsible for providing supervision of its personnel.102 The language of the contract is somewhat ambiguous but it clearly establishes that the contractors were under the direction of de jure organs of the United States. The facts and circumstances to the case show without any doubt that the United States participated in the planning, direction, support and execution of the acts of these private contractors. The degree of control amounted to more than just general or ‘overall’ control. In fact, the United States had effective control over the private contractors and thus they are to be considered to have acted on behalf of the United States. The acts of the private contractors can thus be attributed to the United States government. This also meets the criteria laid down in Article 8 of the ILC Articles according to which it is enough if one of the three conditions is satisfied: ‘instructions’, ‘directions’ or ‘control’. Finally, two further points have to be addressed; the possibility that the private contractors, the de facto organs, were acting in private capacity or that they acted ultra vires. Although the contractors wore no insignia or uniform, this does not indicate that they were acting in private capacity. The military intelligence personnel of the ‘CACI Corrects False Information About Chain of Command in Iraq: Civilian Contractors Do Not Give Orders To Military Personnel’, <www.caci.com/about/news/news2004/07_29_04_NR.html>. (visited 6 May 2005). 101 ‘Rumsfeld Testifies Before Senate Armed Services Committee’, <www.washingtonpost.com/wpdyn/articles/A8575-2004May7.html> (visited 4 May 2005). 102 Although all the contracts with the different companies have not been publicised, the Center for Public Integrity in the United States has under the Freedom of Information Act been permitted to see at least a part of the contracts with one of the companies. Details from their observations are found on the following site: ‘CACI Defense Contracts Hazy on Civilian Authority: Language Reserves Direction for Military’, <www.washingtonpost.com/wp-dyn/articles/A21858-2004Jul28.html> (visited on 6 May 2005). 100

Private Acts or Public Wrongs? 317 __________________________________________________________________ United States wore neither any insignia nor uniforms. In addition, the contractors performed their acts in the prison facility, together with military personnel. Thus, any claim that they were acting in private capacity must be rejected. The question of de facto organs acting ultra vires, however, requires further attention. Article 7 of the ILC Articles stipulates on excess of authority or contravention of instructions 103. The wording, however, specifies that ultra vires acts are attributable only in cases of proper state organs and entities exercising governmental authority, thus leaving Article 8 concerning de facto organs outside its scope. Does this warrant the conclusion that if the private contractors committed their acts in contravention of instructions or in excess of their authority the violations committed are not attributable to the United States? Kress is of the opinion that attributing ultra vires acts of de facto organs to the state is stretching the rules of attribution too far and such a conclusion is not supported by the present stage of international law.104 However, de Hoogh105 as well as Waelde and Wouters106 argue the contrary, as there are no compelling arguments to adopt a different standard for proper state organs and de facto organs in this respect. Their view finds support in the Tadic case, where the ICTY Appeals Chamber in its ruling endorsed the principle of unity of the state as well as effectiveness in the law of state responsibility by holding that even the ultra vires acts of a de facto organ should be attributed to the state. The Appeals Chamber noted that: Generally speaking, it can be maintained that the whole body of international law on State responsibility is based on a realistic concept of accountability, which disregards legal formalities and aims at ensuring that States entrusting some functions to individuals or groups of individuals must answer for their actions, even when they act contrary to their directives.107

Crawford suggest that in cases were a de facto agent has violated the international obligations of the instructing state, such cases can be resolved by asking whether the ‘The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions.’ GA Res. 56/83. 104 Kress, ‘L’organe de facto’, supra note 38, at 136. 105 De Hoogh, ‘Articles 4 and 8’, supra note 85, at 290. 106 T.W. Waelde & P.K. Wouters, ‘State Responsibility in a Liberalised World Economy: State, Privileged and Subnational Authorities under the 1994 Energy Charter Treaty’, 27 Netherlands Yearbook of International Law (1996) 143-191 at 154. 107 38 ILM 1518-1609, at 1541. However, the Chamber in this passage referred to organised and hierarchically structured groups. 103

Finnish Yearbook of International Law (Vol. XV, 2004) 318 __________________________________________________________________ unlawful conduct was really incidental to the mission or clearly went beyond it. He argues that a state in general expects a de facto organ to follow its instructions, but on the other hand ‘where persons or groups have committed acts under the effective control of a State the condition for attribution will still be met even if particular instructions may have been ignored. The conduct will have been committed under the control of the State and it will be attributable to the State in accordance with article 8’.108 The private contractors committed acts that allegedly are violations of the international obligations of the United States. It is not publicly known whether they were following explicit instructions by the United States armed forces in committing these violations, or whether the violations occurred without, or in contravention of, specific orders or authorization to commit these acts. However, the violations were committed in the course of their tasks, thus being incidental to the mission. Hence, even if the acts of the private contractors where committed ultra vires, they are attributable to the United States.

Concluding Observations The manifest abuses in the U.S. run Abu Ghraib prison in Iraq committed by both soldiers and private contractors brought worldwide attention to the question of how much and what activities a state may outsource. The accountability of the private contractors for their abuses became the main issue – one that nobody seemed to have a clear answer to. However, under international law the existing law of state responsibility provides a mechanism to address the abuses of private contractors. The central question was whether their acts are attributable to the United States. The main argument advanced in this article is that the United States still has to adhere to its international obligations regarding human rights and humanitarian law despite the outsourcing of its functions, and thus is responsible on the international level for the abuses committed by the private contractors. The general repercussions of such a conclusion concern the role of state in an ever-changing international environment. As the state still is the subject of international law who accepts international obligations, it also has to act in conformity with its international obligations regardless of the way it chooses to carry out its functions. Thus, outsourcing provides no excuse for breaches of international obligations and should not be considered as a ground for escaping responsibility. When the state has rendered its governmental powers to another 108

Crawford, The International Law Commission’s Articles, supra note 24, at 113.

Private Acts or Public Wrongs? 319 __________________________________________________________________ actor to perform its functions, it should be recognised that the state is accountable for that conduct. What in the beginning seem as private acts may in reality turn out to be concealed governmental activity whereby private acts have in fact become public wrongs. The general rules of attribution are designed to take into account different state constellations and they embody the principle of effectiveness, the purpose being realistic accountability on which other states can rely on. Since these rules are so general in nature, they constitute a flexible mechanism for dealing with situations such as the role of private contractors in Abu Ghraib. Still, the focus should not entirely lie on secondary rules. The use of private contractors has become increasingly common, and suggestions are even made that they could prove to be an alternative to traditional peacekeeping forces of the United Nations. Therefore, stretching the secondary rules of attribution cannot be seen as a credible long-term solution. Instead, the international community should develop regulation on this new industry in order to guarantee their obedience to existing international laws since a comprehensive ban of the use of private contractors seems unattainable. The current gap in regulation of PMCs and their employees should be reduced to ensure that neither these companies nor the states hiring their services can make use of it and that victims of their possible abuses know who bears the ultimate responsibility.

Non-Material Damage and Monetary Reparation in International Law Stephan Wittich*

The Underdeveloped International Law of Remedies One of the deplorable consequences of the decentralised nature of the international legal system with its lack of compulsory dispute settlement mechanisms is the underdeveloped state of the international law of remedies. In view of the still prevailing scarcity of judicial and arbitral proceedings as a form of dispute settlement in international law, this holds especially true for judicial remedies the more so as many international proceedings, in particular before the International Court of Justice, either are not concerned at all with issues of remedies or do not reach that stage. It follows that literature on the topic is scarce too.1 In addition to conceptual difficulties reflecting the diverse approaches to international law in general and the law of responsibility in particular, the topic is also pervaded by terminological confusion, a fact which certainly mirrors differences of opinion on matters of substance.2 Even if one can speak of an already existing international law Assistant Professor of International Law, Department of International Law, University of Vienna. Although the amount has grown in recent years, see C. Gray, ‘Is There an International Law of Remedies?’, 56 British Year Book of International Law (1985) 25; C. Gray, Judicial Remedies in International Law (Oxford University Press: Oxford, 1987); I. Brownlie, ‘Remedies in the International Court of Justice’, in M. Fitzmaurice and V. Lowe (eds), Fifty Years in the International Court of Justice: Essays in Honour of Sir Robert Jennings (Cambridge University Press: Cambridge, 1996) 557; C. Schreuer, ‘NonPecuniary Remedies in ICSID Arbitration’, 20 Arbitration International (2004) 325. For various aspects of remedies in a broad sense see M. Evans (ed.), Remedies in International Law. The Institutional Dilemma (Hart Publishing: Oxford, 1998). For specific aspects of the law of remedies see D. Shelton, Remedies in International Human Rights Law (Oxford University Press: Oxford, 1999) and K. Wellens, Remedies Against International Organisations (Cambridge University Press: Cambridge, 2002). 2 S. Haasdijk, ‘The Lack of Uniformity in the Terminology of the International Law of Remedies’, 5 Leiden Journal of International Law (1992) 245. *

1

Finnish Yearbook of International Law (Vol. XV, 2004) 322 __________________________________________________________________ of remedies – which however is very doubtful – the picture remains indistinct. Remedies are often treated as an issue separate from, but only ancillary to, the substantive rules of international law. At times, they are viewed as mere ‘procedural’ consequences of the violation of substantive norms. In doctrine, hardly any difference is made between remedies within the meaning of the modes of reparation in the law of state responsibility and judicial remedies in a more specific sense. As pointed out by Brownlie,3 these two aspects are related but nevertheless different. This difference is implicit, e.g., in the decision of the International Law Commission (ILC) not to explicitly mention declaratory relief as an example of satisfaction in the Articles on Responsibility of States for Internationally Wrongful Acts although a judicial declaration by a competent court or tribunal is today the main form of satisfaction. The reason for the non-inclusion, as the Commission pointed out in the Commentary, is that the Articles on State Responsibility are not concerned with issues of jurisdiction or judicial remedies but with the various forms of reparation and thus with remedies in a broad sense.4 The uncertainty in the field of remedies is comprehensive. Even compensation, a remedy which appears uncontested in principle, is controversial in many details. Again, conceptual and terminological disorder prevails. As to terminology, ‘compensation’ may denote different things in different contexts. Thus, compensation means of course the payment of a sum of money for any damage caused in violation of international law as governed by the Articles on State Responsibility.5 But compensation is also referred to in the context of loss caused by lawful conduct6 or in connexion with expropriation, in which cases the sum of money paid for the infliction of transboundary damage or to the former owner of the property is neither a ‘remedy’ in the broad sense nor a form or mode of ‘reparation’ but required by the primary norm itself. More substantive controversies 3 Brownlie, ‘Remedies’, supra note 1, at 557. In the present context, however, this difference is not important. 4 Commentary to Article 37, para. (6). The articles and the commentaries may be found in the Report of the ILC on the work of its fifty-third session, UN Doc. A/56/10 (2001). The articles are reproduced in the resolution of the General Assembly, UN Doc. A/RES/56/83, 12 December 2001. See in general C. Tams, ‘All’s Well that Ends Well: Comments on the ILC’s Articles on State Responsibility, 62 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (2002) 759; S. Wittich, ‘The ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts Adopted on Second Reading’, 15 Leiden Journal of International Law (2002) 891. 5 Articles on Responsibility of States for Internationally Wrongful Acts, in particular Article 36, ibid. 6 See e.g. the work of the ILC on International Liability in Case of Loss from Transboundary Harm Arising out of Hazardous Activities, Report of the ILC on the work of its fifty-sixth session, UN GAOR, 59th Sess., Supp. No. 10, ch. VII, UN Doc. A/59/10 (2004), available at <www.un.org/law/ilc/reports/2004/2004report.htm> (visited 22 September 2005), chapter VII.

Non-Material Damage and Monetary Reparation in International Law 323 __________________________________________________________________ regarding compensation concern the various problems of assessing the amount of compensation, including the question of loss of profits and the issue of interest, or the topic of causality. Many of these matters are in fact related to the broader question concerning the modalities of reparation – in particular as to what constitutes the damage to be repaired – and are usually decided by value-judgments on a case by case basis rather than by applying a general ‘formula’ valid for all cases. In contrast, the question that is the topic of the present paper, i.e., whether (monetary) compensation is a suitable remedy for non-material damage, is one of principle. It is only after this question has been answered in the affirmative that the general as well as the specific issues of compensation as mentioned above become relevant. The present article attempts to analyse the notion of non-material damage in international law. It starts with a brief presentation of two distinctions that are important in the present context, i.e., the distinction between damage and injury and that between damage to the state and damage to the individual. In a next step, the article analyses non-material damage to the individual which is well established in international law with regard to both its occurrence and its reparation. Thereafter it addresses the concept of non-material damage to the state and tries to identify this type of damage that is often referred to in theory but that has hardly been relevant in practice. The article concludes by an analysis of the various forms of monetary reparation.

Two Important Distinctions Damage and Injury In international law the terms ‘injury’ and ‘damage’ are generally used interchangeably, notably when reference is made to the factual consequences of an internationally wrongful act.7 On this note, the words injury, damage, prejudice, loss, and harm indiscriminately mean a detrimental effect in the sphere of the victim, whatever the exact form or extent of this effect may be. ‘Injury’ in its strict meaning is related to the violation of an obligation, that is, a wrongful act giving rise to responsibility; hence the terms injury, wrong, breach and illegality are frequently equated.8 From an etymological point of view, ‘injury’ conforms to the Latin iniuria 7 See e.g. F. V. García Amador, Sixth Report on International Responsibility, UN Doc. A/CN.4/134, Yearbook of the International Law Commission 1961, volume II, 1, at 8, para. 28. 8 See e.g. D. W. Greig, International Law (Butterworths: London, 1970) at 399 and 402.

Finnish Yearbook of International Law (Vol. XV, 2004) 324 __________________________________________________________________ which denotes a certain category of acts contrary to what is prescribed by the law (i.e., illegality or wrongfulness),9 whereas ‘damage’ derives from the Latin damnum and denotes the actually harmful result of the wrongful or illegal act (iniuria).10 In general, this etymological distinction between injury and damage entails a conceptual distinction which is generally acknowledged in theory11 and which, as a matter of principle, has implications beyond mere theory. Some of these manifestations of the distinction between damage and injury will be outlined in the following. In the first place, the distinction is obviously reflected in the conceptual and structural difference between, on the one hand, responsibility for internationally wrongful acts and, on the other hand, liability for damage resulting from acts not prohibited by international law. The former entails legal consequences only for an internationally wrongful act, i.e., an action or omission which is attributable to a state and which constitutes a breach of an international obligation of that state.12 Responsibility for a wrongful act nowadays is generally considered independent of any material or non-material damage the wrongful act may ensue. Liability, on the other hand, is more or less the opposite of responsibility in that it means accountability, in legal terms, for any loss or damage arising out of acts not prohibited by international law.13 There the duty to compensate the damage caused is based on reasons other than the illegality of the act, especially the danger of the activity carried out. Whereas responsibility presupposes iniuria in the sense of illegality without necessarily causing damage, liability presupposes damage that is not the consequence of an illegal act (damnum sine iniuria). Another noteworthy consequence in practice of the distinction between damage and injury is illustrated by the difference between the cases of direct damage

9 Online Etymology Dictionary, available at: <www.etymonline.com/index.php?search=injury& searchmode=none> (visited 22 September 2005). 10 H. Grotius, De iure belli ac pacis libri tres, book II, chap. XVII, sec. II, (translated by F.W. Kelsey and edited by J.B. Scott, Clarendon Press: Oxford, 1925) at 430: ‘Damage, the Latin word for which, damnum, was perhaps derived from the word meaning to take away, demere, in Greek is “the being less”; that is, when any one has less than belongs to him’ (footnote omitted). Significantly, already the title of chapter XVII, ‘On damage caused through injury, and the obligation arising therefrom’ displays the distinction between damage and injury. 11 See e.g. B. Graefrath, ‘Responsibility and Damages Caused: Relationship between Responsibility and Damages’, 185 Recueil des cours (1984 II) 9 at 35; James Crawford, First Report on State Responsibility, UN Doc. A/CN.4/490, para. 105; I. Brownlie, System of the Law of Nations – State Responsibility (Part I) (Clarendon Press: Oxford, 1983) at 199. See also M. Craven, ‘Unity, Diversity and the Fragmentation of International Law’, 14 Finnish Yearbook of International Law (2003) 3, at 26-31 (referring to the distinction in the context on the invocation of state responsibility). 12 Articles on Responsibility of States for Internationally Wrongful Acts, supra note 4, Article 2. 13 See International Liability, supra note 6.

Non-Material Damage and Monetary Reparation in International Law 325 __________________________________________________________________ on the one hand, and direct injury on the other hand. The term direct (or immediate) damage concerns the question of restricting indemnifiable (and therefore ‘direct’) damage, as opposed to indirect (or mediate) damage, by requiring a sufficient factual, causation-related link between the wrongful act (i.e., the injury) and the actual loss or harm (i.e., damage) suffered. The dichotomy direct/indirect damage usually is described by reference to a specific standard of causation that is further qualified by phrases such as ‘proximate’, ‘foreseeable’, ‘remote’, ‘consequential’ etc.14 By contrast, direct (or immediate) injury relates to the question as to who is the primary victim of the breach – either the individual or the state.15 This is relevant for example with regard to the incidence of the local remedies rule.16 Although the two notions share certain similarities in that they both perform an attributive function, it is clear that the terms direct/indirect damage refer to the factual consequences of the wrongful act, whereas the terms direct/indirect injury specify the ‘nature of the illegality of the act’.17 Thus the accurate use of the terms damage and injury in practice as illustrated above corresponds to their distinct conceptual meaning. Finally, although the notion of damage, as opposed to injury, often coincides with material loss, this fact alone is not relevant, and in no way decisive, for the conceptual distinction between damage and injury, since damage may no doubt take also non-material forms. By the same token, ‘injury’ frequently is associated or even equated with some kind of purely non-material harm or loss, in particular when reference is made to ‘direct injury’ as between two states not involving damage or harm to nationals of the victim state. However, it follows from what has been said on the concept of injury, that an internationally wrongful act which concerns the breach of an obligation protecting ‘direct interests of the State’ 18 and which, thus, constitutes direct injury does not at all prejudge the question as to whether such direct injury entails material or non-material damage. Suffice it to refer to the Corfu Channel case which is probably the most prominent example where direct injury to the state resulted in loss of life and substantial material harm. Commentary to Article 31, supra note 4, paras. 10-14. P. Daillier and A. Pellet, Droit international public (Librairie Générale de Droit et de Jurisprudence: Paris, 2002) at 791-795, paras 486-487 distinguish between préjudice direct et indirect (direct/indirect damage) and préjudice immediate et médiat (direct/indirect injury). 16 See in detail S. Wittich, ‘Direct Injury and the Incidence of the Local Remedies Rule’, 5 Austrian Review of International and European Law (2000) 121. 17 The problem of identifying criteria for distinguishing direct and indirect injury in the context of the local remedies rule is a very delicate one, as is the problem of finding a general description of those criteria. See Wittich, ‘Direct Injury’, supra note 16, passim (in particular at 180-187). Hence the somewhat enigmatic reference to the ‘nature of the illegality of the act’. 18 Brownlie, State Responsibility, supra note 11, at 236, uses the phrase ‘direct injury to the State interest’. 14

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Finnish Yearbook of International Law (Vol. XV, 2004) 326 __________________________________________________________________ The ILC Articles use the terms injury and damage inconsistently. 19 Article 31(1), for instance, provides that ‘[t]he responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act’; paragraph 2 then specifies that ‘[i]njury includes any damage, whether material or moral, arising in consequence of the internationally wrongful act of a State’. Thus, injury is the broader inclusive notion because – as stated above – it means the legal wrong that may or may not be accompanied by damage. On the other hand, the two terms are used alternatively in the specific provisions on compensation and satisfaction, respectively: While according to Article 36 on compensation the wrongdoing state ‘is under an obligation to compensate for the damage caused’ by the wrongful act, Article 37 on satisfaction provides that the responsible State ‘is under an obligation to give satisfaction for the injury caused’ by the wrongful act (emphases added). There is no explanation to be found, neither in the report of the Drafting Committee nor in that of the Commission, as to the reason for this distinction in Articles 36 and 37, but it probably points to the fact that the kind of damage relevant in the context of satisfaction usually is of a purely non-material character, often consisting in the mere ‘injury’, i.e., the breach of an international obligation.20 On the basis of the foregoing considerations it is suggested that apart from certain exceptions21 and despite the incoherent approach by the ILC, the terminological distinction which conforms to an important conceptual difference between damage and injury be retained. Accordingly we will use the term injury solely so as to refer to the wrongfulness or illegality of an act whereas the terms damage, loss and harm will be employed to describe the detrimental factual consequences of that act.

Although the Special Rapporteur explicitly outlined the distinction between damage and injury, see J. Crawford, First Report, supra note 11, para. 105. 20 One reason not to distinguish between injury and damage and to consider them as synonyms is that there is no corresponding translation of these two notions in other official languages of the United Nations. See also J. Crawford, The International Law Commission’s Articles on State Responsibility. Introduction, Text and Commentaries (Cambridge University Press: Cambridge, 2002) at 30-31. 21 One such exception is the concept of legal injury or legal damage, where both elements (injury and damage) coincide. See further infra the section on ‘Legal Injury’. Another example would be the terms mental, personal or bodily injury which are firmly established as a form of non-material damage to the individual. This is probably due to the fact that in the United States there is a modern tendency to refer to ‘damage to property’, but to ‘injury to the person’, see B. A. Garner, A Dictionary of Modern Legal Usage (2nd edn, Oxford University Press: Oxford, 1995) at 243. 19

Non-Material Damage and Monetary Reparation in International Law 327 __________________________________________________________________

Damage to the State and Damage to the Individual The second distinction concerns the relationship between the individual and the state whose national the individual is. From both a conceptual and a practical point of view, it is essential to distinguish between damage suffered by a state in its own right and damage suffered by a state through one of its nationals.22 While, as stated earlier, the former category is commonly described as ‘direct’ (or ‘immediate’) damage to the state, the latter category consists of the various manifestations of harm done to aliens and is known as ‘indirect’ (or ‘mediate’) damage to the state that is relevant in the process of diplomatic protection. This distinction is again of particular significance in the context of the admissibility of claims and the scope of application of the local remedies rule.23 For instance, in the ELSI case, a Chamber of the International Court of Justice held that since it could not identify a dispute over alleged violations by Italy of the bilateral Treaty of Friendship, Commerce and Navigation that would be distinct from and independent of the dispute over the alleged violation in respect of two United States companies, the local remedies rule was applicable.24 Most recently, the Court applied that distinction in Avena and other Mexican Nationals with regard to the concurring rights of individuals and states arising under article 36 of the Vienna Convention on Consular Relations. 25 While these pronouncements were made in the context of the admissibility of claims, the underlying distinction between damage ‘immediately’ suffered by the state and damage suffered by the individual is also important in the present context since in practice these two categories of damage are treated differently with regard to the

Gaetano Arangio-Ruiz, Second Report on State Responsibility, UN Doc. A/CN.4/425 and Add.1, Yearbook of the International Law Commission 1989, Vol. II, Part One, 1, at 4-7 paras 9-17. See also C. Dominicé, ‘De la reparation constructive du préjudice immatérial souffert par en état’, in M. RamaMontaldo (ed.), International Law in an Evolving World. Liber Amicorum in Tribute to Professor Eduardo Jiménez de Aréchaga (Fundación de cultura universitaria: Montevideo, 1994), vol. I, 505 at 509-513; C. Dominicé, ‘La satisfaction en droit des gens’, in B. Dutoit and E. Grisel (eds), Mélanges Georges Perrin (Diffusion Payot: Lausanne, 1984) 91, at 92-93; P. A. Bissonnette, La satisfaction comme mode de réparation en droit international (Imprimerie Granchamp: Annemasse, 1952), 45-68 (direct damage to the state) and 68-84 (indirect damage to the state through its nationals); J. Personnaz, La réparation du prejudice en droit international public (Sirey: Paris, 1938) 277-282. 23 Brownlie, State Responsibility, supra note 11, at 236. See in detail S. Wittich, ‘Direct Injury’, supra note 16, passim. 24 Case Concerning Elettronica Sicula S.p.A. (ELSI) (USA v. Italy), ICJ Reports (1989) 15, at 42-43 paras 51-52. 25 Avena and other Mexican Nationals (Mexico v. United States), ICJ Reports (2004), para. 40, available at <www.icj-cij.org/icjwww/idocket/imus/imusframe.htm> (visited 22 September 2005). Vienna Convention on Consular Relations, Vienna, 24 April 1963, in force 119 March 1967, 596 United Nations Treaty Series 261. 22

Finnish Yearbook of International Law (Vol. XV, 2004) 328 __________________________________________________________________ mode of their reparation.26 In addition, non-material damage to the individual plays a distinct role in the field of human rights – a role that is uncoupled from both diplomatic protection and cases of ‘direct’ state-to-state claims. From a theoretical point of view, this distinction between direct and indirect damage appears to be at variance with the Vattelian fiction that any damage to an individual is damage to the state of which the individual is a national.27 While this fiction is of course still valid today,28 there are arbitral decisions which have emphasised that there is nevertheless a difference in quality between the damage inflicted upon an individual and that suffered by the state of nationality in its own right. In the Heirs of Jean Maninat case, for instance, the umpire expressly distinguished between the moral damage to the individual and the non-material damage to the state and addressed these aspects separately.29 Other cases, such as the Compagnie Générale des Asphaltes,30 the Stevenson,31 the Davy,32 or the Miliani33 cases, also appear to conceptually distinguish between mediate and immediate damage. Special Rapporteur Arangio-Ruiz has convincingly advocated this distinction34 but he was not followed by the ILC as the distinction had neither emerged from the text and commentaries on first reading nor was it inserted into the articles and commentaries finally adopted. In particular, neither article 31(2) nor articles 36 and 37 of the ILC text distinguish between non-material damage to the state and that suffered by individuals. Yet, as will be seen in the subsequent parts, this distinction entails important consequences with regard to the forms of reparation. Therefore, it will form the basis of the following analysis.

See also S. Wittich, ‘Awe of the Gods and Fear of the Priests: Punitive Damages and the Law of State Responsibility’, 3 Austrian Review of International and European Law (1998) 101 at 109-113. 27 ‘Quiconque maltraite un citoyen offense indirectement l’Etat.’ E. Vattel, Le droit de gens (M. P. Pradier-Fodéré ed., Guillaumin: Paris, 1863), vol. II, para. 71, at 47. 28 See infra chapter on ‘Non-Material Damage to the Individual as Material Damage to the State’. 29 Case Heirs of Jean Maninat (France/Venezuela) (1905), 10 Reports of International Arbitral Awards 55, at 8182. 30 Compagnie Générale des Asphaltes de France Case (Great Britain/Venezuela), 9 Reports of International Arbitral Awards 389, at 392. 31 Stevenson Case (Great Britain/Venezuela), 9 Reports of International Arbitral Awards 494, at 506-507. 32 Davy Case (Great Britain/Venezuela), 9 Reports of International Arbitral Awards 467, at 469. 33 Miliani Case (Italy/Venezuela), 10 Reports of International Arbitral Awards 584, at 591. 34 See in particular his Second Report, supra note 22. 26

Non-Material Damage and Monetary Reparation in International Law 329 __________________________________________________________________

Non-Material Damage to the Individual What is Non-Material Damage to the Individual? The traditional term denoting the kind of damage that is the subject of the present analysis is ‘moral’ damage, and there are a plethora of other terms describing this type of damage (e.g., ‘non-patrimonial’, ‘non-economic’, ‘non-pecuniary’, ‘nonfinancial’ or ‘immaterial’ damage). Since the term ‘moral damage’ is differently conceived and applied in different legal systems and since it has not developed as an autonomous notion in international law,35 it is preferable to use the term ‘nonmaterial damage’. While this will certainly not solve the conceptual uncertainties in the field, it will perhaps reduce the existing terminological confusion. Generally, non-material damage in its broadest meaning can be described as the opposite of material, that is to say, economic, financial or any other form of tangible damage. However, not only is this a tautological definition; such a broad understanding of non-material damage is at any rate not very useful as it would also include cases of personal injury or bodily harm which entail economic loss and which are therefore not covered by the term non-material damage as used in the present context.36 A narrower, but still rather broad, conception would consider non-material damage as any damage which is not damage to a person’s assets, wealth or income and which is therefore incapable of being quantified in any objective financial or economic manner by reference to a market.37 This understanding covers a broad variety of different forms of non-material damage that can be grouped in a rough way as follows.38 First, it includes personal injury that does not produce loss of income or generate financial expenses. Secondly, it comprises the various forms of emotional harm, such as indignity, humiliation, shame, defamation, injury to reputation and feelings, but also harm resulting from the loss of loved ones and, on a more general

J. Crawford, The Articles on State Responsibility, supra note 20, at 31. See also commentary to Article 36, supra note 4, para. 16. 36 See e.g. Arangio-Ruiz, Second Report, supra note 22, at 17-18, para. 54. Cases of personal injury and bodily harm would include any kind of damage to the physical integrity of the human being, such as impairment of health, injuries to members of the body, diseases, assault and battery, physical maltreatment etc. 37 W.V.H. Rogers, ‘Comparative Report of a Project Carried out by the European Centre for Tort and Insurance Law’, in W.V.H. Rogers (ed.), Damages for Non-Pecuniary Loss in a Comparative Perspective (Springer: Vienna, 2001) 245 at 246. 38 See also F. V. Garcia-Amador, The Changing Law of International Claims, (Oceana: New York, 1984), vol. II, 563-566. 35

Finnish Yearbook of International Law (Vol. XV, 2004) 330 __________________________________________________________________ basis, from the loss of enjoyment of life.39 A third category would embrace what could be called non-material damage of a ‘pathological’ character, such as mental stress, anguish, anxiety, pain, suffering, stress, nervous strain, fright, fear, threat or shock. Finally, non-material damage would also cover minor consequences of a wrongful act, e.g., the affront associated with the mere fact of a breach or, as it is sometimes called, ‘legal injury’. This list of diverse categories of non-material damage to the individual is a theoretical one which is probably not always easy to apply in practice. Nor is that classification definite since the difference between these forms is a gradual one, and the categories identified above often are intrinsically linked to each other. For instance, the difference between emotional harm and the ‘pathological’ forms of non-material damage will often blur in practice. Likewise emotional harm or mental pain will often be present in cases of personal injury or bodily harm because the latter usually have a psychological impact on the victim. In any event, a clear cut division between these two forms of non-material damage to the individual is not necessary. A further problem is that the distinction between material and non-material damage is at times difficult to make, the more so as both forms of damage often are engendered by the same wrongful act. For example, there are many instances where non-material damage to the individual is the inevitable consequence of, and inseparably linked with, physical damage. Thus, a person subjected to physical maltreatment will simultaneously suffer psychologically from the indignity, humiliation and anguish inflicted upon him. Conversely, mental injury often causes pecuniary loss, and hence material damage, because of medical and other expenses and loss of earnings. Likewise, acts of torture undeniably cause mental pain and suffering which may again result in substantial financial loss. It follows that since the different heads or bases of damage are usually sustained concurrently, they should not be considered in complete isolation from each other. Finally, it is sometimes said that the concept of non-material damage requires a causal link between the damage suffered and the wrongful act.40 While this is certainly correct as a statement of principle the two issues must be separated. It is one thing to say that only damage, whether material or non-material, that has been adequately caused is susceptible of reparation; it is certainly another thing to determine whether non-material damage has been suffered at all by the victim. 39 See Bissonnette, La satisfaction, supra note 22, at 69-70; Arangio-Ruiz, Second Report, supra note 22, paras 9-12, with further references. See also J. Crawford, Second Report on State Responsibility, UN Doc. A/CN.4/498, para. 181. 40 See e.g. Graefrath, ‘Responsibility and Damages Caused’, supra note 11, at 99.

Non-Material Damage and Monetary Reparation in International Law 331 __________________________________________________________________ Thus, before one addresses the question of causation, it must be clear, in the first place, that some kind of damage has in fact occurred. Even in cases where nonmaterial damage could not be proved by the applicant but which was nevertheless presumed by the respective court or tribunal, such presumption was not considered an issue of causation.41 Although in practice the question of damage and that of its direct, proximate, adequate etc. causation often are dealt with in the same context, 42 they must in principle be separated since the question whether damage has been suffered at all is predominantly a factual one whereas the question of causation, which performs an attributive function, is a legal one in that it is a legal rule which prescribes what kind of damage is reparable and which is not.

Compensation of Non-Material Damage to the Individual As to the reparation of non-material damage to the individual in international law, it has long been accepted that such damage may be repaired by monetary compensation. There is abundant and long-standing practice that has been influenced by the evolution of modern civil codes in municipal law which were introduced in the late 19 th and the early 20th century and which provided for pecuniary reparation of non-material damage on the municipal level.43 A well-known example of this practice is the statement of Umpire Parker in the Lusitania case in which he succinctly summarised the indemnifiability, in financial terms, of nonmaterial damage to the individual: Mental suffering is a fact just as real as physical suffering, and susceptible of measurement by the same standards. [...] It is difficult to lay down any rule for measuring injury to the feelings, or humiliation or shame, or mental suffering, and yet it frequently happens that such injuries are very real and call for compensation as actual damages as much as physical pain and suffering and many other elements which, though difficult to measure by pecuniary standards, are, nevertheless, universally considered in awarding compensatory damages.44

Umpire Parker’s statement clearly reflects the approach of compensatory or remedial justice which is aimed at achieving reparation by holding the tortfeasor See e.g. Shelton, Remedies, supra note 1, at 233-44. See Articles on Responsibility of States for Internationally Wrongful Acts, supra note 4, Article 31, where the question of the type of damage and the issue of causation are combined (in particular paras 5-14 of the commentary to Article 31). 43 L. Reitzer, La réparation comme conséquence de l’acte illicite en droit international (Sirey: Paris, 1938) at 129. 44 Lusitania Case (USA/Germany) (1923), 7 Reports of International Arbitral Awards 32, at 36 and 40 (emphasis in the original). 41

42

Finnish Yearbook of International Law (Vol. XV, 2004) 332 __________________________________________________________________ responsible for the wrong committed by him. The fact that non-material damage usually cannot – or not easily – be measured in monetary terms does not furnish any reason why the victim should not receive adequate reparation and why the wrongdoer should escape its obligation to make good the damage he has wrongfully caused. And if there is no other possibility of repairing the damage, i.e., of making the loss of enjoyment of life more endurable,45 than by pecuniary standards there seems to be no reason not to allow financial compensation of non-material damage, the more so as ‘money is the common measure of useful things’.46 The abundant practice of arbitral tribunals and claims commissions with regard to monetary compensation of non-material damage suffered by foreigners in the context of diplomatic protection47 has been followed and further developed by the judicial practice of human rights bodies, especially the European Court of Human Rights and the Inter-American Court of Human Rights, 48 but also by other courts and tribunals, such as the International Tribunal for the Law of the Sea,49 the European Court of Justice,50 ICSID tribunals,51 or the United Nations Compensation Commission.52 Accordingly, the ILC considers non-material damage to individuals as being ‘financially assessable damage’ within the meaning of Article 36(2) of the ILC Articles, and hence covered by compensation. This is made clear in the commentary to that provision although it mainly refers to personal injury in a broad sense which does not necessarily correspond to the term non-material damage as used in the 45 C. R. Cramer, ‘Loss of Enjoyment of Life as a Separate Element of Damages’, 12 Pacific Law Journal (1981) 965; B. Stern, ‘Loss of Enjoyment of Life: A Quantitative Approach’, National Trial Law (1992) 52. 46 H. Grotius, De iure belli, supra note 10, book II, chapter XVII, sec. XXII, at 437. 47 See in general R. Lillich, International Law of State Responsibility for Injuries to Aliens (University Press of Virginia, 1983); García-Amador, Changing Law, supra note 38. 48 Shelton, Remedies, supra note 1, at 214-279; Gray, Judicial Remedies, supra note 1, at 154-157. See also M. Emberland, ‘Compensating Companies for Non-Pecuniary Damage: Comingersoll S.A. v. Portugal and the Ambivalent Expansion of the ECHR Scope’, 74 British Year Book of International Law (2003) 409. 49 The M/V ‘Saiga’ (No. 2) (Saint Vincent and the Grenadines/Guinea) (Merits), International Tribunal for the Law of the Sea (1999), Judgment of 1 July 1999, para. 175, available at <www.itlos.org/case_documents/2001/document_en_68.pdf> (visited 22 September 2005). 50 For references see A. G. Toth, ‘The Concepts of Damage and Causality as Elements of NonContractual Liability’, in T. Heukels and A. Mcdonnell (eds), The Action for Damages in Community Law (Aspen Publishers: New York, 1997) 179 at 190. 51 International Centre for the Settlement of Investment Disputes, Benvenuti and Bonfant Srl v. The Government of the People’s Republic of the Congo (1980), 1 ICSID Reports 330, at 360-361, paras 4.95-4.96, also in 67 International Law Reports 345. 52 See UNCC Decision No. 3 on Personal Injury and Mental Pain and Anguish, S/AC.26/1991/3 (1991).

Non-Material Damage and Monetary Reparation in International Law 333 __________________________________________________________________ present context.53 In the text adopted on first reading, the relevant provision restricted compensation to ‘economically assessable damage’,54 a term that appeared to be inappropriate because the assessment of compensation in case of non-material damage is hardly ever done on ‘economic’ grounds. On the contrary, most instances of non-material damage, such as mental suffering, humiliation, shame or degradation, are practically impossible to assess in economic terms strictly speaking. The draft articles thus excluded certain categories of damage, particularly nonmaterial damage to the individual, a result that was obviously not intended by the Commission and that ran counter to well established customary law. Therefore it is to be welcomed that the Commission replaced the term ‘economically assessable’ by the wider notion of ‘financially assessable’. While it is clear that this change alone does not make the assessment or quantification of non-material damage easier, it nevertheless does not confine such assessment to strictly economic values. In sum, judicial practice by numerous judicial and arbitral bodies in the various branches of international law provides some reliable criteria for the evaluation of non-material damage to the individual, even if such damage usually is quantified on the basis of an equitable assessment which will always remain a highly approximate matter.55

Non-Material Damage to the Individual as Material Damage to the State Based on the well-established Vattelian fiction,56 the traditional view of international responsibility for damage suffered by aliens has been that any damage to the person or the property of a foreigner abroad constitutes at the same time damage to the state of which that person is a national. Since the damage suffered by the individual is susceptible of pecuniary compensation, it is considered to be ‘an integral part of

Commentary to Article 36, Articles on Responsibility of States for Internationally Wrongful Acts, supra note 4, paras 16-19. 54 Former draft Article 8(2) and 44(2), respectively, Report of the ILC on the work of its forty-fifth session, UN GAOR 48th Sess., Supp. No. 10, UN Doc. A/48/10, Yearbook of the International Law Commission 1993, volume II, 2, at 67. See infra chapter on ‘Substantial Damages: “Compensation” or “Pecuniary Satisfaction”?’. 55 Commentary to Article 36, Articles on Responsibility of States for Internationally Wrongful Acts, supra note 4, para. 19. This has been confirmed by the European Court of Human Rights, see e.g. Wiesinger v. Austria, ECHR Ser. A (1991), No. 213, para. 85 – as well as by the Inter-American Court of Human Rights – see e.g., Castillo Paez v. Peru (Reparations), Inter-American Court of Human Rights, Ser. C, No. 43 (1998), para. 84, 116 International Law Reports 483, at 511. 56 Vattel, Le droit de gens, supra note 27. 53

Finnish Yearbook of International Law (Vol. XV, 2004) 334 __________________________________________________________________ the principal damage suffered by the injured State’.57 In other words, material as well as non-material damage done to the individual is also principal, i.e., material, damage to the state. The idea behind the inclusion of non-material damage to individuals into the notion of material damage to the state is that whenever private rights of individuals recognised and protected by international law are infringed, the individual should be compensated materially for the loss, pain or suffering inflicted. This material compensation is measured by pecuniary standards and, hence, turns into material damage to the state whose national the injured individual is. It is certainly true that there is a high degree of inconsistency in this traditional concept. As Zemanek put it: It is one of the not unusual discrepancies between dogma and factual necessities that in case of infliction of material damage to nationals abroad in violation of international law, the injured state may nevertheless claim reparation of material damage although it has only suffered non-material damage by the violation of its right that its nationals be treated in accordance with international law.58

Thus, viewed from a dogmatic perspective, the damage to the individual and the damage to the state must strictly be distinguished, and, as the Permanent Court declared,59 the damage suffered by the individual only serves as a measure to calculate the amount due by way of reparation, and this is done on reasons of convenience and practicability rather than of theory. However, there are also dogmatic justifications for this idea. Reuter, for instance, argued that the modern state has acquired all the elements of economic life and thereby is ‘socialising’ all private assets and property. Therefore, from an economic point of view, it is the ‘nation’ (i.e., the sum of all nationals) as represented by the state that – at least to some extent – sustains the burden consisting in the loss which has been suffered primarily by a private individual.60 Similarly Seidl-Hohenveldern argued that the Arangio-Ruiz, Second Report, supra note 22, at 4, para. 9. This is also argued by Dominicé, ‘La satisfaction’, supra note 22, at 111-112. 58 K. Zemanek, Haftungsformen im Völkerrecht (de Gruyter: Berlin, 1983) at 10 (translation by the author, emphases in the original). The German original reads as follows: ‘Daß bei einer völkerrechtswidrigen materiellen Schädigung eines Staatsangehörigen im Ausland der verletzte Staat dennoch die Wiedergutmachung materiellen Schadens verlangt, obwohl ihm selbst durch die Verletzung seines Anspruches auf völkerrechtsgemäße Behandlung seiner Staatsangehörigen nur ein immaterieller Schaden entstanden ist, gehört zu den nicht seltenen Widersprüchen zwischen Dogma und Sachzwang.’ To the same effect J. Wolf, ‘Gibt es im Völkerrecht einen einheitlichen Schadensbegriff?’, 49 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (1989) 403 at 415. 59 Case Concerning the Factory at Chorzów Factory (Claim for Indemnity) (Merits) (Germany v. Poland), PCIJ Series A, No. 17 (1928) at 28. 60 P. Reuter, ‘Le dommage comme condition de la responsabilité internationale’, in Estudios de derecho 57

Non-Material Damage and Monetary Reparation in International Law 335 __________________________________________________________________ right to diplomatic protection not only rests on the general interest of states that their nationals be treated in accordance with international law. In view of the social function of property as recognised in present-day international law, states moreover have rights over investments of their nationals abroad which form a substantial part of the state’s national wealth.61 According to this view, in case of damage to its nationals the state of nationality indeed suffers not only non-material but also material damage, an approach which is tantamount to dismantling, as it were, the ‘fiction’ usually ascribed to the whole process of diplomatic protection. On this note, Judge Jessup pointed out that ‘the rather simplistic notion that a State was injured when an injury was inflicted abroad upon the least of its nationals, has come to be superseded by the realization of the national economic importance of foreign investments as State interests’.62 Whatever the value of this line of reasoning may be,63 suffice it to note that good arguments may be advanced which appear to justify the ‘transformation’ of material and non-material damage to the individual into material damage to the state, and thus may help to close the seeming gap between theory and practice in this regard. After all, whether the inclusion of non-material damage to the individual into the material damage to the state is conceptually tenable or not, it is supported by abundant judicial practice concerning diplomatic practice and the treatment of aliens64 and it has also been confirmed by the ILC.65

internacional: Homenaje al professor Miaja de la Muela (Editorial Tecnos: Madrid, 1979), vol. II, 837, at 842. 61 I. Seidl-Hohenveldern, International Economic Law (3rd edn, Kluwer Law International: The Hague, 1999) at 26; I. Seidl-Hohenveldern/T. Stein, Völkerrecht (10th edn, Heymanns: Köln, 2000) at 306, para. 1602. 62 Case concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), ICJ Reports (1970) 3, at 196 (separate opinion of Judge Jessup). See also Judges Gros and Riphagen: ‘[T]he formula that in defending its nationals a State is asserting “its own rights” at the international level has acquired a reality which goes further than the procedural justification of its origin.’ Ibid. at 269 (separate opinion of Judge Gros). ‘It is in fact undisputable that the State has a real interest in the development of its international commerce, of which investment in foreign undertakings and the establishment of undertakings in foreign countries constitute manifestations.’ Ibid. at 336, para. 4 (dissenting opinion of Judge Riphagen). 63 It is doubtful whether the arguments reproduced above are still valid in an era of globalization where it is difficult to control the movement of capital and to establish the nationality of transnational corporations. For other reasons against the inclusion of moral damage of individuals into the material damage of the State see C. Annacker ‘Part Two of the International Law Commission’s Draft Articles on State Responsibility’, 37 German Yearbook of International Law (1994) 206 at 237-238. 64 For references see Arangio-Ruiz, Second Report, supra note 22, at 4-5, paras 9-12. 65 Commentary to Article 36, supra note 4, para 16. See also Arangio-Ruiz, Second Report, supra note 22, at 4, para. 7, and at 16-17, paras 53-59.

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Non-Material Damage to the State What is Non-Material Damage to the State? The Views in Doctrine The notion of non-material damage to the state is much more elusive and vague than that of non-material damage to the individual. As to terminology, the terms non-material or moral damage are identical to what is at times called political damage suffered by a state. 66 Usually non-material damage is associated with antiquated terms such as a violation of, or an affront or offence to, a state’s dignity, honour and prestige because the state as the personification of the legal order and honour of the nation enjoys respect for its moral and political personality. This traditional understanding of ‘moral’ damage to the state can be found throughout the doctrinal history of international law and was expressed by a great many distinguished earlier writers67 and it is also stated by many contemporary authors.68 Garcia Amador, Sixth Report, supra note 7, at 11-13, paras 44-50; F. Przetacznik, ‘La résponsabilité internationale de l’Etat à raison des préjudices de caractère moral et politique causés à un autre Etat’, 78 Revue générale de droit international public (1974) 920 at 924. See also Arangio-Ruiz, Second Report, supra note 22, at 5, para. 13, who tries to distinguish moral from political damage. 67 See e.g. E. Vattel, Le droit des gens, supra note 27, vol. I, book I, chapter XV, at para. 191; J. C. Bluntschli, Das moderne Völkerrecht der civilisirten Staten als Rechtsbuch dargestellt (3rd edn, Beck: Nördlingen, 1878) at 265 para. 470; A. W. Heffter, Das Europäische Völkerrecht der Gegenwart auf den bisherigen Grundlagen (8th edn, Müller: Berlin, 1888) at 76-79, para. 32; A. S. Hershey, The Essentials of International Public Law (Macmillan: New York, 1918) at 157-158, no. 147; K. Strupp, ‘Das völkerrechtliche Delikt’, in F. Stier-Somlo (ed.), Handbuch des Völkerrechts, vol. III.1a, (Kohlhammer: Stuttgart, 1920) at 213; L. Oppenheim, International Law. A Treatise, (R. F. Roxburgh ed., 3rd edn, Longmans: London, 1920), vol. I, 203-206, paras 120-122; P. Fauchille, Traité de droit international public (Rousseau: Paris, 1922), vol. I, part 1, at 474, para. 280; C. de Visscher, ‘La responsabilité des États’, in Bibliotheca Visseriana (Brill: Leiden, 1924), vol. II, 87, at 119; D. Anzilotti, Corso di diritto internazionale (Athenaeum: Rome, 1928) at 464-465. 68 Bissonnette, La satisfaction, supra note 22, at 45-68; Przetacznik, ‘La résponsabilité’, supra note 66, at 924; A. J. P. Tammes, ‘Means of Redress in the General International of Peace’, in F. Kalshoven, P. J. Kuyper and J. G. Lammers (eds), Essays on the Development of the International Legal Order in Memory of Haro F. van Panhuys (Sijthoff: Alphen aan den Rijn, 1980) 1 at 8; A. Verdross and B. Simma, Universelles Völkerrecht (3rd edn, Duncker und Humblot: Berlin, 1984) at 276, para. 455; Dominicé, ‘La satisfaction’, supra note 22, at 98-99; A. Tanzi, ‘Is Damage a Distinct Condition for the Existence of an Internationally Wrongful Act?’, in M. Spinedi and B. Simma (eds), United Nations Codification of State Responsibility (Oceana: New York, 1987) 1 at 9; E. Riedel, ‘Satisfaction’, in R. Bernhardt (ed.), Encyclopedia of Public International Law (Elsevier: Amsterdam, 2000), vol. IV, at 320; Wolf, Schadensbegriff, supra note 58, at 415-416; E. Jiménez de Aréchaga and A. Tanzi, ‘Responsabilité internationale des états’, in M. Bedjaoui (ed.), Droit international: Bilan et perspectives (Pedone: Paris, 1991) at 395, para. 83; E. Decaux, ‘Responsabilité et réparation’, in Société française pour le droit international (ed.), La 66

Non-Material Damage and Monetary Reparation in International Law 337 __________________________________________________________________ Yet, despite this apparent unanimity, the frequency with which non-material damage is referred to by writers in a general fashion stands in marked contrast to the superficiality with which the topic of non-material damage is treated. For instance, it is often said that any breach of an international obligation per se results in moral damage.69 However, while such a broad understanding of non-material damage may pose no problems in case of breach of reciprocal obligations, it faces insurmountable obstacles in the context of obligations that are owed erga omnes, i.e., collective or community obligations. We will address this question in more detail in the context of so-called ‘legal injury’. The fact that not every breach of an international obligation causes non-material damage is also made clear by Article 37 of the ILC text dealing with satisfaction as the specific remedy for non-material damage. Satisfaction as an exceptional remedy for non-material damage is only available insofar as the ‘injury’ cannot be made good by restitution or compensation.70 A closer look at doctrine reveals that there are only few writers who attempt to examine in more detail the manifestations of non-material damage to the state. But even then the argument often goes in circles. Thus, Wolf describes non-material damage to the state as damage which entails neither restitution nor compensation as a secondary obligation but satisfaction and then goes on to list various forms of satisfaction which are designed to remedy non-material damage directly suffered by a state.71 This comes close to Bissonnette’s circular argument that the function of satisfaction is to repair ‘moral’ damage to the state, but on the question when such damage exists he argues that there is moral damage whenever the appropriate remedy is satisfaction.72 More useful is Bissonnette’s compilation of specific responsabilité dans le système international (Pedone: Paris, 1991) 147, at 182; P. Malanczuk, Akehurst’s Modern Introduction to International Law (7th ed., Routledge: London, 1997) at 270; P.-M. Dupuy, Droit international public (5th ed., Dalloz: Paris, 2000) at 452; Seidl-Hohenveldern/Stein, Völkerrecht, supra note 61, at 328, marginal note 1689. 69 Anzilotti, Corso, supra note 67, at 439; Bissonnette, La satisfaction, supra note 22, at 68-82; García Amador, Sixth Report, supra note 7, at 10-11, paras 41-2; Reuter, ‘Le dommage’, supra note 60, at 844; B. Bollecker-Stern, Le préjudice dans la théorie de la responsabilité international (Pedone: Paris, 1973) at 49; J. Combacau and S. Sur, Droit international public (Montchrestien: Paris, 1995) at 542. For a more differentiated view see Tanzi, ‘Is Damage a Distinct Condition?’, supra note 68, at 8-9; Arangio-Ruiz, Second Report, supra note 22, at 5-6, paras 14-15. The ILC commentary to Article 37, para. 3, ambiguously states that financially not assessable injuries ‘are frequently of a symbolic character, arising from the very fact of the breach of the obligation’, Articles on Responsibility of States for Internationally Wrongful Acts, supra note 4. 70 Articles on Responsibility of States for Internationally Wrongful Acts, supra note 4, Article 37(1). See also commentary to Article 37, paras 1-4. 71 Wolf, Schadensbegriff, supra note 58, at 415-420. 72 Bissonnette, La satisfaction, supra note 22, at v.

Finnish Yearbook of International Law (Vol. XV, 2004) 338 __________________________________________________________________ breaches of international law which give rise to a claim for non-material damage. He distinguishes between ‘direct moral’ damage73 and ‘indirect moral’ damage to the state, the former consisting in territorial violations, offences against state representatives, breaches of the rules on inviolability of diplomatic and consular premises, ‘illegal acts’ against ships, insults to emblems of the state, and injurious words and writings against a state. ‘Indirect moral’ damage to the state consists, according to Bissonnette, basically in non-material damage done to the nationals of a state.74 Bissonnette’s approach was largely influenced by the preponderance of diplomatic incidents in the field of satisfaction outweighing by far the scarce arbitral practice. This fact casts considerable doubt on the significance of the list provided by Bissonnette as diplomatic practice is not very conclusive.75 Furthermore, the categories of ‘moral’ damage to the individual as mentioned by Bissonnette are either made up of cases of personal injury, such as bodily harm, which belong to the category of physical rather than non-material damage; or the categories cover breaches of certain rules on the treatment to be accorded to aliens, such as unjustified deprivation of liberty or denial of justice, in which case the violation of the relevant primary norm is confounded with the damage possibly caused thereby. But the general approach by Bissonnette as regards the first category mentioned (i.e., ‘direct’ non-material damage to the state), is shared by many other authors. Thus, Przetacznik states that damage of a moral or political character consists in a deliberate violation of another state’s dignity, especially a violation of the rules on diplomatic and consular inviolability as well as an offence or attack against the national flag or emblem.76 Similarly, Eagleton mentions ‘attacks or insults directed against the state in the person of its head, its ambassadors or other public representatives, its flag or other emblem’, 77 and the same types of acts are cited by Personnaz.78 Likewise, Jennings and Watts write that international law has traditionally ascribed certain legal consequences to the dignity of states and mention, inter alia, the special protection enjoyed by heads of state, diplomatic personnel, but also the obligation not to treat other states’ symbols of authority with disrespect. 79 Ibid. at 45-68. Ibid. at 69-83. Note that Bissonnette also identified single cases in practice where the infliction of material damage to a national of a state was regarded as also amounting to moral damage to the state itself, see ibid. at 69. 75 See infra chapter on ‘Non-Material Damage in International Case Law’. 76 Przetacznik, ‘La responsabilité’, supra note 66, at 924. 77 Eagleton, The Responsibility of States in International Law (New York University Press: New York, 1928) at 80. 78 Personnaz, La réparation, supra note 22, at 278-279. 79 R. Jennings and A. Watts, Oppenheim’s International Law (9th edn, Longman: London, 1992) at 379, 73 74

Non-Material Damage and Monetary Reparation in International Law 339 __________________________________________________________________ Greig notes ‘the deliberate restriction upon the movements, or expulsion, of a diplomatic representative of one state by another without reasonable cause, or acts generally termed “insults to the flag”’,80 but apart from a reference to the sinking of a vessel flying the flag of a foreign state he remains silent on the question as to when such an ‘insult’ is to be assumed. Finally, the ILC speaks of non-material injuries ‘which amount to an affront to the State’ and mentions examples similar to those mentioned above.81 Overall, it would appear that all these various definitions or descriptions of non-material damage to the state focus on two criteria. First, they concern the character of the norm breached, in particular the importance of the value protected by the norm. Secondly, some authors also emphasise the specific circumstances of the breach either individually or in combination with the first criterion. We will deal with these criteria in more detail below.82 Non-Material Damage in International Case Law International case law with regard to non-material damage is scarce, and this scarcity stands in marked contrast to the rich literature on the topic we have just outlined and also to the alleged importance of non-material values in international law that is so heavily emphasised in doctrine. Diplomatic practice is probably richer with regard to incidents of moral or non-material damage directly inflicted upon states.83 para. 115. They chiefly mention the right of states to demand that their heads of state shall not be libelled and slandered; that their heads of state and likewise their diplomatic envoys shall be granted special treatment when abroad, and that at home and abroad in the official intercourse with representatives of foreign states they shall be granted certain titles; that their warships shall be granted certain privileges when in foreign waters; that their symbols of authority, such as flags and coats of arms, shall not be used improperly and shall not be treated with disrespect on the part of other states. The exact juridical status of these ‘rights’ is however not clarified by the authors. 80 Greig, International Law, supra note 8, at 402. The example mentioned by Greig is however irreconcilable with Article 9 of the Vienna Convention on Diplomatic Relations which allows the receiving state to declare a diplomat to a persona non grata at any time and without reasons. Vienna Convention on Diplomatic Relations, Vienna, 18 April 1961, in force 24 April 1964, 500 United Nations Treaty Series 95. 81 These are insults to the symbols of the state, such as the national flag, violations of sovereignty or territorial integrity, attacks on ships or aircraft, ill treatment of or deliberate attacks on heads of state or government or diplomatic or consular representatives or other protected persons and violations of the premises of embassies or consulates or of the residences of members of the mission. Commentary to Article 37, supra note 4, para. 4. In fact, this is identical to what the commentary to former draft Article 45 on satisfaction said with regard to the forms of non-material damage, see ILC Report 45th sess. (1993) at 78, para. 8. 82 Infra chapter on ‘Identifying Non-Material Damage to the State’. 83 See the review in Arangio-Ruiz, Second Report, supra note 22, at 35-40, paras 119-134.

Finnish Yearbook of International Law (Vol. XV, 2004) 340 __________________________________________________________________ However, the legal value of these incidents is highly uncertain for various reasons.84 Most importantly, dispute settlement by diplomatic means frequently fails to apply legal principles, and it is therefore doubtful whether diplomatic practice in the field of non-material damage may be considered as state practice that is accompanied by opinio iuris. For example it is often unclear whether the reparation rendered in these incidents had been preceded by a violation of international law at all. Therefore diplomatic practice will be left aside in the present analysis. With regard to arbitral and judicial practice, it is remarkable that even in cases where it could readily be assumed that the breach of international law has inflicted some kind of non-material damage, this question was no issue eo nomine before the respective court or tribunal either because the injured state itself did not refer to that type of damage or because the court or tribunal ignored the corresponding submissions. Thus, in the Diplomatic and Consular Staff case, which concerned severe and repeated violations of the rules of diplomatic inviolability by Iran, 85 the Court did not conclude that these violations amounted to an ‘affront’ to the United States as sending state. This is puzzling given the fact that, as we have seen above, breaches of the rules of diplomatic inviolability are generally considered as examples par excellence of non-material damage in doctrine. Similarly, in Military and Paramilitary Activities, the Court did not find that the use of force or the act of intervention by the United States were an affront to Nicaragua.86 Since in neither case the proceedings reached the stage on the assessment of the form and amount of reparation, there was no need for the Court to address the issue of non-material damage and its reparation. However, in Military and Paramilitary Activities Nicaragua submitted interesting arguments on the non-material damage it had allegedly suffered.87 It distinguished between the violation of its sovereignty from other forms of non-material damage. As regards the former, Nicaragua relied upon the four ‘types’ of violation of its sovereignty which the Court had identified in its judgment on the merits. 88 In See in more detail Wittich, ‘Awe of the Gods’, supra note 26, at 140-142. Case Concerning United States Diplomatic and Consular Staff in Tehran (United States v. Iran), ICJ Reports (1980) 4, at 42-43. 86 Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits), ICJ Reports (1986) 14, at 118-123, paras 227-238 on the use of force, and at 123-126, paras 239-244 on intervention. 87 Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), ICJ Pleadings, Oral Arguments, Documents, vol. V, 243, at 318-334. 88 Ibid. paras 387-99. These four forms were (1) the conduct constituting breach of the obligation not to intervene in the affairs of another state (Judgment, para. 251), (2) the conduct in breach of the obligation not to use force (Dispositif, subpara. 5 of the Judgment), (3) the directing or authorizing of overflights of Nicaraguan territory (Dispositif, subpara. 5 of the Judgment), and (4) the laying of mines 84 85

Non-Material Damage and Monetary Reparation in International Law 341 __________________________________________________________________ Nicaragua’s opinion, these violations were not merely ‘technical’ ones but rather ‘a set of persistent courses or patterns of conduct’ which were aggravated by the United States’ intention to intervene in Nicaraguan sovereignty.89 Nicaragua then went on to indicate why the acts committed by the United States had caused moral damage: The elements of moral damage will naturally vary considerably from case to case according to the circumstances and the identification of the elements relevant to a particular case must be a matter of appreciation. However, the process of weighing up the elements of moral damage is by no means unstructured, and must reflect the relevant precedents and known criteria of contemporary international public policy.90

Nicaragua also provided a list of such elements.91 That list included various items such as ‘the connection between the activities of the United States and norms of jus cogens’, ‘the overall intention and policy of the United States’, ‘the seriousness of the breaches’, ‘cynical disregard’ of treaty obligations, ‘intimidation as an instrument of national policy’, ‘the callous indifference to elementary considerations of humanity’, ‘the disregard of the Court’s injunctive declaration’ as well as ‘the infringement of the freedom of communications and of maritime commerce’. There are other cases where the issue of non-material damage was not decided even though the circumstances of the particular case might well have warranted such a decision. In LaGrand, for instance, Germany laid much emphasis on the fact that it had suffered moral damage in several respects, such as the constant ignorance of United States authorities towards numerous interventions by Germany on behalf of its nationals.92 Moreover, the United States bluntly disregarded a binding order on provisional measures by the International Court 93 and acted contrary to the specific obligations contained therein. One can easily understand that the execution of a person in disregard of a binding order of the ICJ amounts to an affront to the state of nationality itself. Nevertheless, the Court did not say a single word on this aspect of the case. In the Arrest Warrant case, Congo argued that the failure by in the internal or territorial waters of Nicaragua (Dispositif, subpara. 6 of the Judgment). 89 Ibid., para. 399. 90 Ibid., para. 414. 91 Ibid., paras 415-432. 92 LaGrand Case (Germany v. United States of America), Memorial of Germany, at paras.6.52-6.55, available at <www.icj-cij.org/icjwww/idocket/igus/iguspleadings/iGUS_ipleading_Memorial_Germany_ 19990916_ Complete.htm> (visited 22 September 2005). 93 LaGrand Case (Germany v. United States of America) (Request for the Indication of Provisional Measures), Order of 3 March 1999, ICJ Reports (1999) 9, at 16, para. 29.

Finnish Yearbook of International Law (Vol. XV, 2004) 342 __________________________________________________________________ Belgium to respect the immunity and inviolability of the Congolese Foreign Minister had caused ‘moral injury’.94 In addressing the issue of remedies, the Court simply affirmed Congo’s allegation as to moral damage but did not state why this was the case.95 In the Saiga case, the International Tribunal for the Law of the Sea held Guinea responsible for ‘excessive use of force’ but did not pronounce on the severe non-material damage suffered by Saint Vincent and the Grenadines96 despite the latter’s insistence on this form of damage.97 The only case in contemporary international law that extensively addressed the issue of non-material damage to the state was the Rainbow Warrior affair.98 In the proceedings before the Secretary-General of the United Nations, New Zealand submitted that the attack against the Rainbow Warrior was indisputably a serious violation of basic norms of international law. More specifically, it involved a serious violation of New Zealand sovereignty and of the Charter of the United Nations. These violations were neither accidental nor technical. International law and New Zealand’s sovereignty were violated deliberately and contemptuously.99

That this breach of international law resulted in non-material damage was made clear by New Zealand when it stated that ‘[t]he sinking of the Rainbow Warrior led to a deep and genuine sense of public outrage in New Zealand’.100 France for its part admitted that its violation of New Zealand territory had caused non-material damage.101 While the Secretary-General in his ruling did not address the type of damage suffered by New Zealand, this question re-emerged in the second stage of the proceedings before the arbitral tribunal. In the view of New Zealand, the failure Arrest Warrant of 11 April 2000 (Congo v. Belgium), ICJ Reports (2002), at 26-27, para. 72, available at <www.icj-cij.org/icjwww/idocket/iCOBE/icobejudgment/icobe_ijudgment_20020214.PDF> (visited 22 September 2005). 95 Ibid. at 27-28, para. 75. 96 The Saiga case, supra note 49, para. 176. 97 The Saiga case, supra note 49, Memorial of Saint Vincent and the Grenadines, paras 197-206, in particular para. 204 (on file with author); Reply by Saint Vincent and the Grenadines, paras 192-200 (on file with author). 98 On the various aspects of this affair see in more detail Wittich, ‘Awe of the Gods’, supra note 26, at 123-131. 99 Memorandum of the Government of New Zealand, Case Concerning the Rainbow Warrior Affair (New Zealand v. France), Ruling by the Secretary-General of the United Nations of 6 July 1986, 19 Reports of International Arbitral Awards 201 [hereinafter Rainbow Warrior case I]. It is not clear to which provision of the Charter of the United Nations New Zealand was referring to. 100 Ibid. at 202. 101 Memorandum of the Government of the French Republic, ibid. at 209. 94

Non-Material Damage and Monetary Reparation in International Law 343 __________________________________________________________________ by France to comply with the ruling of the Secretary-General ‘revived all the feelings of outrage which had resulted from the Rainbow Warrior incident’ and New Zealand claimed to have suffered ‘moral damage since in this case there is not a purely technical breach of a treaty, but a breach causing deep offence to the honour, dignity and prestige of the State’. 102 The tribunal confirmed New Zealand’s position when it found: [T]he infringement of the special regime designed by the Secretary-General [...] has provoked indignation and public outrage in New Zealand and caused a new, additional non-material damage. This damage is of a moral, political and legal nature, resulting from the affront to the dignity and prestige not only of New Zealand as such, but of its highest judicial and executive authorities as well.103

Thus, the two stages of the Rainbow Warrior affair provide a good example of the infliction of non-material damage in different forms. In the first stage, it was the violation of fundamental norms of international law in such a serious way as to result in an obvious affront to the general public in New Zealand. In the second stage, by releasing the two responsible agents contrary to both the ruling of the Secretary-General and the bilateral agreement concluded with New Zealand in order to implement the ruling, the French authorities added insult to injury – almost literally. It is not to be forgotten that it was essential to New Zealand that the two agents were not prematurely released to freedom, the more so as they had been convicted to a term of ten years imprisonment in New Zealand. Therefore, France not only committed a second flagrant breach towards New Zealand; that second breach moreover was so closely related to the previous one that it revived all the feelings of outrage and indignation caused by the sinking of the Rainbow Warrior and thus opened an old sore. It was certainly this aspect of the case that caused the tribunal to speak of ‘new, additional non-material damage’. Identifying Non-Material Damage to the State The foregoing analysis of doctrine and judicial and arbitral practice shows that despite the differences that exist, the various approaches taken contain two elements that may serve to identify non-material damage to the state. The first element concerns certain rules of international law which are considered fundamental either because they flow directly from the quality of the state as a person under Case Concerning the Rainbow Warrior Affair (New Zealand v. France), Arbitral Tribunal, Award of 30 April 1990, 20 Reports of International Arbitral Awards 267, para. 108 [hereinafter Rainbow Warrior case II]. 103 Ibid., para. 110. 102

Finnish Yearbook of International Law (Vol. XV, 2004) 344 __________________________________________________________________ international law and are the ‘public manifestation’ of its status as a sovereign state; or, from a more functional point of view, because those rules (and the compliance with them) are indispensable for the maintenance of good relations between states, such as the rules on diplomatic inviolability or on the inviolability of territorial integrity. In sum, the first criterion emphasises the importance of the societal value protected by the legal norm breached.104 The second criterion that can be detected concerns the way in which the violation is committed. Thus the occurrence of non-material damage to the state is restricted to deliberate breaches of international law. Accordingly, the infliction of non-material damage depends on some subjective element residing in the nature of the breach or, on a more general basis, on the particular circumstances of the breach. As the second stage of the Rainbow Warrior affair has demonstrated, such aggravating circumstances may be the repetition of a breach or the interrelationship between the present breach and previous conduct by the wrongdoing state. In applying these two criteria, either individually or in combination, one may identify three categories of non-material damage. First, there are certain obligations breach of which always entails non-material damage, irrespective of concomitant circumstances.105 In other words, there are primary norms which themselves determine that their breach will result in non-material damage. Such obligations can be found in those areas of international law that concern the representation of states, i.e., in the field of diplomatic and consular relations or the rules concerning the international status of heads of state or government. 106 Many of these obligations specifically protect the respect for, and the dignity of, foreign states. According to Article 22(3) of the Convention on Diplomatic Relations107 the ‘receiving State is under a special duty to take all appropriate steps [...] to prevent any disturbance of the peace of the mission or impairment of its dignity’ (emphasis added). Article 30(1) extends the same protection to the private residence of the diplomat. Likewise, Article 29 obliges the receiving state to treat the diplomatic agent ‘with due respect’ and to ‘take all appropriate steps to prevent any attack on his person, freedom or dignity’ (emphases added). These obligations are reiterated in Articles 25(2), 29 and 30 of the Special Missions Convention, 108 and Articles 31(3) See Wittich, ‘Awe of the Gods’, supra note 26, at 107. Dominicé, ‘La satisfaction’, supra note 22, at 116. To the same effect J. Combacau and D. Alland, ‘Primary and Secondary Rules in the Law of State Responsibility’, 16 Netherlands Yearbook of International Law (1985) 81, at 104. 106 See in detail F. Przetacznik, Protection of Officials of Foreign States according to International Law (Martinus Nijhoff: The Hague, 1983). 107 Vienna Convention on Diplomatic Relations, supra note 80. 108 Convention on Special Missions, adopted by GA Resolution 2530 (XXIV) of 8 December 1969, 104 105

Non-Material Damage and Monetary Reparation in International Law 345 __________________________________________________________________ and 40 of the Convention on Consular Relations109 provide in almost identical terms for respect and dignity to be accorded to the consular agents and the consular premises. Likewise heads of state, heads of government and foreign ministers are entitled to special protection from any attack on their person, freedom or dignity, 110 and – as the judgment in the Arrest Warrant case shows111 – the failure to respect the inviolability and immunity of these central organs of the state causes non-material damage. A second category consists of obligations whose breach does not result in nonmaterial damage unless there are aggravating circumstances. Thus, the involuntary violation of the territorial sovereignty of another state by the customs officers of a neighbouring state, though a breach of international law, will hardly inflict specific non-material damage to the victim state. The case will certainly be different if the breach is committed intentionally. Obligations falling under this category are characterised by the importance of the value protected and include the obligation not to use force, not to interfere with another state’s sovereignty, territorial integrity but also the norms of diplomatic law which do not fall under the special category mentioned above (i.e., those obligations which do not expressly protect a state’s dignity). The only clear judicial precedent in this regard probably is the first phase of the Rainbow Warrior affair because there the deliberate violation of New Zealand’s territorial integrity caused non-material damage. Thirdly, even the breach of norms which do not protect specifically important values may in exceptional cases, i.e., under aggravating circumstances, result in nonmaterial damage. The second phase of the Rainbow Warrior affair may be considered as providing some guidance in this respect. There it would seem that the obligation breached by France, i.e., the bilateral treaty concluded in order to implement the Ruling of the Secretary-General, was not per se of a specifically important character inasmuch as it would have protected some weighty societal value. Rather it was the manifest unwillingness by France to abide by the treaty and the breach of it was intrinsically linked to the earlier serious violation of international law that had provoked the whole affair. UNGAOR Suppl. 30 (A/7630), at 99, 1400 United Nations Treaty Series 231. Vienna Convention on Consular Relations, supra note 25. 110 See Articles 1 and 2(c) of the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, UNGA Resolution 3166(XXVIII), UNGAOR Suppl. 30 (A/9030), at 146, 1035 United Nations Treaty Series 167. See also A. Watts, ‘The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers’, 247 Receuil des cours (1994 III) 9, at 40; H. Fox, The Law of State Immunity (Oxford University Press: Oxford, 2002) at 421-448. 111 Arrest Warrant case, supra note 94, at 27-28, para. 75. 109

Finnish Yearbook of International Law (Vol. XV, 2004) 346 __________________________________________________________________ The result of this examination may be considered somewhat disappointing since it hardly breaks new ground to realise that both, the importance of the norm breached and the seriousness of the commission of the breach, are relevant in determining the consequences of a wrongful act. These factors are generally considered important in determining the form and the extent or amount of reparation.112 Furthermore, there are other concepts in international law which also bear on these two aspects. In particular the concept of obligations erga omnes attaches in a similar way much weight on the importance of the norm at stake as well as on some sort of a quantitative element.113 Likewise, the idea of ‘serious breaches of obligations under peremptory norms of general international law’ in chapter III of Part Two of the ILC text builds upon both the type of obligation and the nature of its breach. But these criteria have hardly been applied in the context of non-material damage. Non-material damage has traditionally been restricted to the antiquated notion of dignity of states, a term that is contained only in a few substantive provisions of current international law and which has not played a significant role in international case law, let alone in recent time. Thus the dignity of states is, from a legal point of view, only of limited relevance not only because of its vagueness and elusiveness but also – and more importantly – because there are only a few positive norms which expressly protect the dignity of states as a societal good. Furthermore it is highly doubtful whether notions such as dignity, honour or prestige accurately reflect contemporary legal concepts of their own. What appears essential is that certain violations of international law result in what has traditionally been termed ‘moral’ damage that acquires a certain public nature and thus affects the state in its status as a subject of international law. Such violations are characterised by the criterion of the seriousness of the wrongful act, which lies either in the importance of the good or value protected by the norm breached or in aggravating circumstances such as the degree of fault, or both.

W. Riphagen, Second Report on the Content, Forms and Degrees of International Responsibility, UN Doc. A/CN.4/344, Yearbook of the International Law Commission 1981, vol. II, Part One, 79, at 97, para. 137 (with regard to reparation in general); ILC commentary to Article 30, para. 13 (with regard to assurances and guarantees of non-repetition); I. Brownlie, Principles of Public International Law (6th edn, Oxford University Press: Oxford, 2003) at 447 (with regard to damages); Arangio-Ruiz, Second Report, supra note 22, para. 191 (with regard to satisfaction). 113 See, e.g., Dominicé, ‘The International Responsibility of States for Breach of Multilateral Obligations’, 10 European Journal of International Law (1999) 360. See also Prosecutor v. Furundzija, Case No. IT-95-17/1-T, ICTY Trial Chamber II, Judgment of 10 December 1998, paras 151-157; for comments see Crawford, Second Report, supra note 39, paras 77-80, and P.-M. Dupuy, ‘Reviewing the Difficulties of Codification: On Ago’s Classification of Obligations of Means and Obligations of Result in Relation to State Responsibility’, 10 European Journal of International Law (1999) 371 at 384. 112

Non-Material Damage and Monetary Reparation in International Law 347 __________________________________________________________________ The apparent elusiveness of non-material damage to the state has led some authors to doubt whether this notion is viable at all. For example it is argued that the state, contrary to the individual, is an abstract entity which cannot have sentiments or feelings.114 However, in principle the situation here does not differ much from that with regard to non-material damage to the individual. In many cases non-material damage may not be immediately perceptible or identifiable and hence must be presumed. Nevertheless this does not warrant the denial of this type of damage. While the determination of non-material damage will always be highly subjective, depending on whether the victim state itself considers the violation amounting to an affront and thus hinging upon the sense of justice of the injured state which may or may not be appreciated by a third party, it must be justified by the objective circumstances of the particular case. The criteria established above may assist in that difficult exercise. ‘Legal’ Damage or Injury The clarification by the ILC that damage is not a condition for international responsibility has generally been met with approval. But it seems that at the same time the ILC broadened the concept of damage by stating that ‘any breach of an obligation towards another State involves some kind of injury’.115 Such a broad meaning of damage is, to be sure, not entirely new in that earlier doctrine assigned to the mere breach of international law the character of moral damage.116 As stated above,117 contemporary writers constantly use the terms ‘legal’, ‘political’ and ‘moral’ damage interchangeably.118 But there is no support in practice for such an C. Tomuschat, ‘Some Reflections on the Consequences of a Breach of an Obligation under International Law’, in W. Haller, A. Kölz, G. Müller and D. Thürer (eds), Im Dienst an der Gesellschaft. Festschrift für Dietrich Schindler zum 65. Geburtstag (Helbing & Lichtenhahn: Basel, 1989) 147 at 163; Annacker, ‘Part Two’, supra note 63, at 227 and 231; Dominicé, ‘La satisfaction’, supra note 22, at 116; see however, Dominicé, ‘Réparation constructive’, supra note 22, passim and in particular at 509-511. 115 Report of the International Law Commission on the Work of Its Twenty-fifth Session, UN GAOR, 28th Sess., Supp. No. 10, UN Doc. A/9010/Rev.1, Yearbook of the International Law Commission 1973, vol. II, 161, at 183, para. 12. 116 See Anzilotti, Corso, supra note 67, at 155. 117 See supra chapter on ‘The Views in Doctrine’. 118 Thus Bollecker-Stern states that moral damage encompasses the moral damage to States for both the violation of their right to proper treatment of their nationals abroad and moral damage directly suffered by the State as well as legal damage. Bollecker-Stern, Le préjudice, supra note 69, at 33-34. She also writes that ‘l’Etat possède un intérêt juridique à voir le droit international respecté à son égard; la moindre atteinte à cet intérêt constitue un préjudice juridique qui en l’état actuel du droit est assimilé au préjudice moral en ce qui concerne ses conséquences sur le plan de la réparation’ (ibid. at 49). Similarly 114

Finnish Yearbook of International Law (Vol. XV, 2004) 348 __________________________________________________________________ understanding – with the sole exception of the decision in Rainbow Warrior, where the tribunal did not indicate any stopping place between these three terms, implying that any breach of international law leads to non-material damage.119 However, as illustrated by the commentary to former draft Article 3, the intention of the ILC was quite different. The Commission clearly distinguished the ‘injury’ inherent in any internationally wrongful act from both material and traditional ‘moral’ damage in that legal injury was independent of any factual material or non-material consequences of the wrongful act.120 It would seem that the abstract conception of ‘legal injury’ is but a corollary in theory of the development of international law reflecting the diversification of the content of state responsibility. States may enter into various kinds of obligations on whatever subject and, apart from the limitations set by peremptory norms, these obligations may have any content whatsoever. This implies that there may be obligations under international law whose breach does not involve any identifiable or even presumable kind of material or non-material damage. And indeed, it is a rather artificial assertion that a violation of a multilateral treaty protecting human rights causes moral damage to all the other states parties to that treaty because such a breach is conceived as an affront against each and every one of them.121 Besides, if any breach of a state’s right to the performance of an obligation resulted in moral damage of that state, the idea of legal injury would, from a logical point of view, be completely superfluous and the term would only add to the existing confusion in the field. In this context it must be recalled that in international law, any form of damage performs two important functions. First it is necessary to determine the subjects that have the legal interest required for claiming reparation or, more generally, for invoking a breach of law. And secondly, damage serves the purpose of assessing the Wolf, Schadensbegriff, supra note 58, at 441. Particularly confusing is the concept proposed by ArangioRuiz, Second Report, supra note 22, at 6, para. 14-15. 119 Rainbow Warrior case II, supra note 102, para. 110. 120 It is this aspect which distinguishes the ILC approach from that of Anzilotti. In contrast Special Rapporter Ago followed Anzilotti by stating that ‘under international law an injury, material or moral, is necessarily inherent in every violation of an international subjective right of a State’. See R. Ago, Third Report on State Responsibility, UN Doc. A/CN.4/246 and Add. 1-3, Yearbook of the International Law Commission 1971, vol. II, 199, at 223 para. 73. It is not clear whether the Commission introduced the notion of legal damage on conceptual or theoretical grounds or whether it did so to counter the opinion of damage being a constituent element of the wrongful act. 121 See the commentary to draft Article 3 as adopted on first reading stating that a breach of human rights obligations (i.e., obligations erga omnes) ‘does not normally cause any economic injury to the other States parties to the [relevant human rights] convention, or even a slight to their honour or dignity’, ILC Report 25th Sess., supra note 115, at 183 para. 12 (emphasis added).

Non-Material Damage and Monetary Reparation in International Law 349 __________________________________________________________________ mode and quantum of reparation. In short, the notion of damage helps to identify the injured state that may invoke responsibility and to assess reparation. In the strictly bilateral context, ‘legal injury’ can hardly perform this function. In the first place, it is quite obvious that if legal injury consists in a mere violation of the law it does not include some form of identifiable (material or non-material) detriment to the injured state. It follows that legal injury is also irrelevant for reparation as there is no damage to be repaired, and, thirdly, it is moreover immaterial in determining the ‘injured state’ that may invoke the responsibility of the wrongdoing state. In the bilateral context, where every obligation of a state corresponds, in a synallagmatic way, to a legal right of another state, any breach of this obligation necessarily ‘produces’ an injured state, without it being necessary to resort to the ‘concept’ of legal injury in order identify the injured state. But even with regard to obligations erga omnes the situation does not differ. If any violation of an international obligation causes moral damage in the traditional sense, this would lead to the result that each of the states being part of the community towards which the obligation breached is owed, would have a legal interest in invoking that breach and, moreover, would be entitled to reparation, for instance in the form of satisfaction. This latter consequence is unreasonable and runs counter to Article 48(2) of the ILC Articles. Thus neither in the context of bilateral obligations nor with regard to obligations erga omnes the ‘traditional’ view that any breach of an international obligation causes moral damage is tenable. On the other hand, a breach of obligations erga omnes does not necessarily also violate a ‘subjective’ right of another state; rather than allocating individual rights towards particular states, such obligations lay down a general interest in compliance by all other states to which this obligation is owed. Such a general interest is often called an ‘objective right’ as opposed to the ‘subjective’, i.e., individual, right in the traditional bilateral right-duty relationship. 122 This objective right aims at upholding the integrity of the value protected by the community obligation which is not to be confounded with an interest of a general character in compliance with international law. While the former is an interest legally protected by an international obligation whose breach entails state responsibility, the latter is irrelevant in this context unless that specific interest is also protected by a legal norm. 123 It could be argued that a violation of an objective interest legally protected by an obligation erga omnes causes

P-M. Dupuy, ‘Implications of the Institutionalization of International Crimes of States’, in J. H. H. Weiler, A. Cassese and M. Spinedi (eds), International Crimes of State (de Gruyter: Berlin, 1989) 171 at 179-180; C. Annacker, ‘The Legal Régime of Erga Omnes Obligations in International Law’, 46 Austrian Journal of Public and International Law (1994) 131 at 147. 123 J. Crawford, Third Report on State Responsibility, UN Doc. A/CN.4/507 and Add. 1-3, paras 104-105. 122

Finnish Yearbook of International Law (Vol. XV, 2004) 350 __________________________________________________________________ legal injury to all states to which this obligation is owed; such legal injury would exist independently of any real (i.e. material or non-material damage) inflicted upon an individually injured state, provided that the obligation at issue is one which protects a value that is allocated to both, individual states and a community of states (such as the obligation not to use force). Thus the distinct usage of the term ‘legal injury’ may in theory be considered to assist in distinguishing between various injured states according to their affectedness, such a distinction being presumably important for invoking a breach of an obligation erga omnes.124 And indeed it is argued that the injury consisting in the wrongfulness must be distinguished from the wrongfulness or illegality itself.125 But one is left to wonder what purpose such a distinction could serve unless it also entails a distinction in consequences. The ‘concept’ of ‘legal damage’ or ‘injury’ is not one that singles out a specific type of damage comparable to material or moral/non-material damage and relevant for concomitant issues such as the form and amount of reparation. It is fairly clear that ‘legal damage’, if anything at all, could only have some conceptual significance if it had some bearing on the distinction between the different types of victim states. This, however, is not the case. Even in the context of obligations erga omnes, legal damage or injury is only a synonym for an infringement of a legally protected interest in the integrity of the ‘community norm’. On balance, the notion of legal injury does not have any identifiable meaning and is merely another term for illegality or wrongfulness. It is an artificial construct lacking any discrete content, developed by doctrine but hardly referred to in practice. It is frequently employed to obscure conceptual shortcomings – in particular the complex topic of moral or non-material damage – in a realm of international law which is already characterised to a large extent by legal uncertainty. In sum, the notion of legal injury is unhelpful and the existing terminological confusion surrounding the various notions of damage and injury is a good reason to abandon the term altogether. 126 See generally G. Hafner, ‘Bemerkungen zur Funktion und Bestimmung der Betroffenheit im Völkerrecht anhand des Binnenstaates’, 31 German Yearbook of International Law (1988) 187 at 225; Annacker, ‘Erga Omnes Obligations’, supra note 122, at 147-149. Such a differentiation was discarded by Arangio-Ruiz. See his Fourth Report on State Responsibility, UN Doc. A/CN.4/444 and Add. 1-3, Yearbook of the International Law Commission 1992, vol. II, Part One, 1, paras 139-151. However, Crawford clearly supported it, see Crawford, Third Report, supra note 123, paras 110-116. The differentiation as proposed by Crawford was eventually adopted by the ILC, see Articles on Responsibility of States for Internationally Wrongful Acts, supra note 4, Articles 43 and 49. 125 See Wolf, Schadensbegriff, supra note 58, at 432. 126 To a similar effect A. Epiney, Die völkerrechtliche Verantwortlichkeit von Staaten für rechtswidriges Verhalten im Zusammenhang mit Aktionen Privater (Nomos: Baden-Baden, 1992) at 76-77; A. Pellet, ‘Remarques sur 124

Non-Material Damage and Monetary Reparation in International Law 351 __________________________________________________________________

Monetary Reparation of Non-Material Damage to the State A Basic Disagreement There is basic disagreement between authors in international law as to whether a state may generally recover pecuniary redress for direct violations of international law, in particular for such violations which do not entail material damage.127 In order to put the debate into perspective, one has to distinguish between two problems that are related but nevertheless different. The first concerns the general question as to whether there is a ‘law of direct international wrongs’.128 The second relates to the more specific question whether damages are a proper remedy for non-material damage to a state. While there is a clear answer to the first question, the second is still controversial. With regard to the first question, it was vigorously argued by Parry that in international law there was no direct law of remedies and that, accordingly, even in case of material damage the injured state was not entitled to damages for its direct injury, i.e., apart from the material and non-material damage done to one of its nationals.129 The reason for this non-existence of a law on reparation for direct wrongs was, according to Parry, the complete lack of practice with regard to claims for compensation for direct state-to-state breaches of international law, the Corfu Channel case being an exception but a case sui generis.130 This proposition does of course not withstand analysis. First of all, it is a general principle of law that every internationally wrongful act entails the responsibility of the wrongdoing state and that responsibility includes the duty to make reparation for the damage caused by the wrongful act. Moreover, it is undoubtedly a general principle of law that reparation takes the form of compensation if and to the extent the damage is not made good by restitution. This must hold true at least for material damage irrespective of whether this material damage was caused directly to the state or indirectly via its nationals. This concept of compensation was accordingly – and une révolution inachevée’, 42 Annuaire français de droit international (1996) 7 at 13; A. de Hoogh, Obligations Erga Omnes and International Crimes (Kluwer Law International: The Hague, 1996) at 30. 127 On the discussion see also Gray, Judicial Remedies, supra note 1, at 85-95. 128 Brownlie, State Responsibility, supra note 11, at 31-32 and 236-240. 129 C. Parry, ‘Some Considerations upon the Protection of Individuals in International Law’, 90 Recueil des cours (1956-II) 653 at 674-683. He stated that ‘it might be argued that there is no rule, or no firm rule, of international law to the effect that for one state to cause damage to another directly is to create a right to reparation in that other’. Ibid. at 683. 130 C. Parry, ‘Of Treaties’, in P. Feuerstein and C. Parry (eds), Multum non multa: Festschrift für Kurt Lipstein aus Anlaß seines 70. Geburtstages (Müller: Heidelberg, 1980) 221 at 238.

Finnish Yearbook of International Law (Vol. XV, 2004) 352 __________________________________________________________________ without hesitation – confirmed by the International Law Commission in Article 36.131 Furthermore, the case law of the International Court of Justice, even though it is scarce, leaves no doubt that a wrongdoing state is under an obligation to pay compensation at least for the material damage caused directly to the injured state in violation of international law.132 In particular in Gabÿíkovo-Nagymaros the Court noted that both parties were entitled vis-à-vis each other to compensation for the damage caused by the other side but suggested that a ‘zero-sum agreement’ for damages would be appropriate. 133 Likewise, Diplomatic and Consular Staff, Military and Paramilitary Activities and Arrest Warrant involved direct international wrongs and were not concerned, in the first place, with diplomatic protection on behalf of nationals. Lastly, in the Saiga case the Tribunal for the Law of the Sea awarded substantial damages in various categories – all considered by the Tribunal to be ‘direct injuries’.134 Therefore, the extreme position that limits monetary compensation to cases of diplomatic protection on behalf of nationals is not supported by modern practice – if it ever was at all. As to the second question, some writers argue that states may not only claim pecuniary damages for direct wrongs causing material damage, but also for any breach of international law whether or not that breach has caused actual material damage or loss. Fitzmaurice, for instance, stated that ‘under international law a government is always entitled to some damages in respect of breach of international law or treaty, irrespective of whether the breach has caused any actual material damage or pecuniary loss’.135 This opinion is also shared by other writers. 136 On the ILC Commentary to Article 36, supra note 4, paras 8-15 with regard to direct injuries and paras 1620 on indirect injuries to nationals. 132 This is implied in the wording of the respective provisions of the dispositif in Diplomatic and Consular Staff in Tehran and in Military and Paramilitary Activities where the Court referred to the ‘form and amount of [...] reparation [...] will be settled by the Court’. Diplomatic and Consular Staff case, supra note 85, at 45, para. 6 of the dispositif (emphasis added); Military and Paramilitary Activities, supra note 86, at 149, para. 15 of the dispositif. This wording must cover at least the material damage suffered by the United States and Nicaragua as claimants, respectively. Whether this also covers non-material damage is a matter for debate. 133 Case concerning the Gabÿikovo-Nagymaros Project (Slovakia/Hungary), ICJ Reports (1997) 7, at 81 paras 152-153. 134 Saiga case, supra note 49, para. 98 on direct injury and paras 170-177 on reparation. 135 G. Fitzmaurice, ‘The Case of the I’m Alone’, 17 British Yearbook of International Law (1936) 82 at 109 (emphasis in the original). See also footnote 2. 136 L. B. Sohn and R. R. Baxter, ‘Convention on the International Responsibility of States for Injuries to Aliens’, in F. V. García Amador, L. B. Sohn and R. R. Baxter (eds), Recent Codification of the Law of State Responsibility for Injuries to Aliens (Oceana: Dobbs Ferry, 1974) 133 at 148; Greig, International Law, supra note 8, at 459-461; Brownlie, Principles, supra note 112, at 447; E. Riedel, ‘Damages’ in R. 131

Non-Material Damage and Monetary Reparation in International Law 353 __________________________________________________________________ other hand, there are many authors who take a more restricted view according to which monetary reparation – irrespective of its denomination – is confined to material, i.e., financially assessable damage.137 The debate on the availability of damages for non-material damage to the state has been prompted by various reasons. First of all, as so often in the law of state responsibility which largely builds on abstract and indeterminate ‘general principles’, the controversies are due to the wide difference of method in municipal law concerning reparation in general and compensation in particular. 138 The approaches to the topic of non-material damage are diverse and in many states, municipal law still is very restrictive with regard to damages for non-pecuniary losses apart from of personal injury and death cases.139 Furthermore the issue is again pervaded by terminological confusion which is reflected in the use of numerous different terms when monetary payments are involved (pecuniary reparation, monetary compensation, nominal, substantial, punitive and aggravated damages, pecuniary satisfaction). This terminological uncertainty has added a lot to the conceptual bewilderment. Finally, due to the lack of case law on the matter practice has not contributed to the clarification of the problem. In the following three parts the various forms of monetary reparation of nonmaterial damage to the state will be discussed. These remedies are nominal or symbolic damages, substantial damages and punitive or aggravated damages. Nominal or Symbolic Damages In some municipal legal systems nominal damages are requested and awarded in cases where the breach of law is not accompanied by any material or non-material Bernhardt, Encyclopaedia of Public International Law (Elsevier: Amsterdam 1992), vol. I, 929 at 930; M. N. Shaw, International Law (5th edn, Cambridge University Press: Cambridge, 2003) at 718-719; Dupuy, Droit international public, supra note 68, at 459. 137 Reitzer, La réparation, supra note 43, at 175; Personnaz, La réparation, supra note 22, at 157-268; Bollecker-Stern, Le préjudice, supra note 69, at 34; K. Zemanek, ‘The Legal Foundations of the International System’, 266 Recueil des cours (1997) 9 at 270-271; Verdross and Simma, Universelles Völkerrecht, supra note 68, at 874 para. 1295; Jennings and Watts, Oppenheim’s, supra note 79, vol. I, at 529-530; D. Bowett, ‘Treaties and State Responsibility’, in Le droit international au service de la paix, de la justice et du développement: Mélanges Michel Virally (Pedone: Paris, 1991) 137 at 144; Annacker, ‘Part Two’, supra note 63, at 225-228; Dominicé, ‘La satisfaction’, supra note 22, at 110-112; C. Tomuschat, ‘Consequences of a Breach’, supra note 114, at 163; Graefrath, ‘Responsibility and Damages Caused’, supra note 11, at 90-91; Seidl-Hohenveldern/Stein, Völkerrecht, supra note 61, at 328. 138 Gray, ‘Law of Remedies’, supra note 1, at 34-35. 139 See W. V. H. Rogers (ed.), Damages for Non-Pecuniary Loss in a Comparative Perspective (Springer: Vienna, 2001). See in particular W.V.H. Rogers, ‘Comparative Report of a Project Carried Out By the European Centre for Tort and Insurance Law’, in ibid. at 245.

Finnish Yearbook of International Law (Vol. XV, 2004) 354 __________________________________________________________________ damage or where such damage cannot be shown. 140 Thus they serve mere symbolic purposes. However, nominal damages may also have a material aspect, for instance when they are allowed as an award of costs.141 In international arbitral practice awards of nominal damages are rare.142 The most famous example is the award in the Lighthouses case where the tribunal awarded a symbolic sum of 1 franc since the applicant, having sufficiently proved the basis of his claim, could not set in figures the damages requested.143 Yet it is doubtful whether this case really concerned an award of nominal damages directly to the state as distinct from the company. 144 Another award of nominal damages for damage suffered by an individual is the Brower case where the arbitral tribunal held that Great Britain violated international law by not having recognized the claimant’s title to six small ‘islets with a few coconut trees on them’ whose ‘value apparently rested entirely upon a rumour of buried treasure’. The tribunal further doubted that ‘there would be a single bid for them’ if the islands were put to auction and accordingly awarded the nominal sum of one shilling.145 In AGIP v. Congo an ICSID tribunal awarded the symbolic sum of 3 French francs, oddly enough under the title of lucrum cessans.146 These three cases stand by themselves as instances of awards of nominal damages in international arbitral practice. There are also instances of symbolic or nominal damages awarded eo nomine by the European and the Inter-American Courts of Human Rights but the circumstances of the cases and the actual amounts awarded make it doubtful whether the awards were indeed of a mere symbolic nature. Thus in Engel and others v. The Netherlands the European Court of Human Rights awarded the sum of 100 Dutch guilders as a ‘token indemnity’.147 However, in view of the fact that the claimant in that case was unlawfully detained in ‘strict arrest’ that lasted between 22 and 26 hours, this award could also be considered as compensation for non-material damage to the individual. In Gangaram Panday v. Suriname, the Inter-American Court 140 J. Garner (ed.), Black’s Law Dictionary (7th edn, West Group: St. Paul, 1999) at 396. The European Court of Justice, however, held that the applicant may not escape the burden of proof by claiming nominal damages only. See Roquette v. Commission, Case 26/74, [1976] ECR 677, at 687. 141 In such instances nominal damages are ‘a peg to hang costs on’, Beaumont v. Greathand, 2 CB 494, 499 (1846). 142 Gray, Judicial Remedies, supra note 1, at 28-29. 143 Affaire relative à la concession des phares de l’empire Ottoman (France/Greece) (1956), 12 Report of International Arbitral Awards 155, at 216. 144 See however Crawford, Third Report, supra note 123, para. 188 in note 152. 145 Brower case (USA v. Great Britain) (1923), 6 Report of International Arbitral Awards 109, at 112. 146 AGIP Spa v. The Government of the People’s Republic of the Congo (1979), 1 ICSID Reports 306, at 329. 147 Engel and others v. The Netherlands (Article 50), 22 ECHR Ser. A (1976), at 69.

Non-Material Damage and Monetary Reparation in International Law 355 __________________________________________________________________ of Human Rights decided to set a nominal amount as ‘compensation’ because Suriname’s responsibility could not be proved beyond doubt and was only inferred.148 Yet, given the substantial amount of 10,000 US dollars awarded149 one can hardly speak of symbolic damages.150 On the other hand, there is also practice denying any award of trifling sums. Thus the Permanent Court of Arbitration in the Carthage and Manouba cases rejected claims for nominal damages and held a declaratory judgment on the illegality of the conduct as sufficient relief.151 This analysis clearly shows the limited value of nominal damages. If they are intended to allow for the award of costs they will, firstly, be substantial rather than symbolic and, secondly, irrelevant since in international litigation costs are generally borne by each party. Furthermore, in view of the fact that nominal damages must in any event be awarded by a third party, it is not clear, as pointed out by Special Rapporteur Crawford, ‘what they could achieve which could not be achieved by appropriate declaratory relief’ by the court or tribunal.152 Finally it would appear that due to the development of the declaratory judgment as a distinct remedy for the violation of international law nominal damages have become redundant. This is presumably the reason why awards of nominal damages have practically disappeared in modern practice. Substantial Damages: ‘Compensation’ or ‘Pecuniary Satisfaction’? As mentioned above, 153 opinion is divided on the question as to whether substantial monetary payments may be called for to make good non-material damage suffered directly by a state. Again, practice is virtually non-existent. In some earlier cases concerning injuries to aliens, the claimant states requested damages on their own behalf in addition to damages on behalf of the injured individual. In most of these cases the requests were rejected because the arbitrators considered them as wholly Gangaram Panday v. Suriname (Merits), Inter-Am. Ct. H.R. Ser. C (1994), No. 16, para. 70. Ibid., para. 4 of the dispositif. 150 Contrary to this author’s opinion expressed on an earlier occasion, see Wittich, ‘Awe of the Gods’, supra note 26, at 118-20 and at 150 in footnote 220, similar considerations apply to the Arends case (The Netherlands/Venezuela), 10 Report of International Arbitral Awards 729 at 730, where the tribunal awarded 100 US dollars for the brief detention of a vessel, and the Moke case where the claimant was awarded 500 US dollars for 24 hours unlawful imprisonment in 1871, see J. B. Moore, International Arbitrations, (US Government Printing Office: Washington, 1898). Vol. IV, at 3411. See also Crawford, Third Report, supra note 123, para. 188, note 362. 151 (France/Italy) (1912), 11 Report of International Arbitral Awards 449 at 460-461 (Carthage), and 463, at 475 (Manouba). 152 Crawford, Third Report, supra note 123, para. 188. 153 Supra chapter on ‘A Basic Disagreement’. 148

149

Finnish Yearbook of International Law (Vol. XV, 2004) 356 __________________________________________________________________ punitive.154 The Heirs of Jean Maninat case155 appears to be the only case concerning injuries to an individual where it may be inferred from the reasoning that the arbitrator awarded substantial damages to the state that were distinct from and in addition to compensation to the individual. In that case, the umpire held Venezuela responsible for the killing of a French national and for the non-prosecution of the alleged perpetrators. The umpire added that even more important than the moral damage suffered by the sister as the next of kin was the direct injury upon the home state of the individual. Accordingly he awarded 100,000 francs in damages which explicitly covered both aspects of the case.156 International jurisprudence offers two other well-known instances where substantial sums of money were awarded to states presumably in reparation of nonmaterial damage suffered directly by them in violation of international law. In the I’m Alone case that concerned the intentional sinking of a Canadian ship by US coastguard vessels, the two commissioners recommended that the United States pay to Canada 25,000 US dollars ‘as a material amend in respect of the wrong’ done to Canada as the flag state.157 Since the ship was de facto owned, controlled and managed by US citizens, Canada did not suffer any material loss and the award may thus be considered as a payment of monetary compensation to Canada for the mere violation of its rights as flag state and hence for direct non-material damage. However, good reasons may be adduced which render this award rather doubtful as a reliable authority in support of a damages award for non-material damage to a state.158 First, the award was couched in the form of a recommendation which certainly diminishes its value as a legal precedent. Secondly, the recommendation lacks a clear reasoning as to the nature of the award, such as the damage for which the sum was awarded or the basis of calculation. Thirdly, the Canadian Government did not at all request any monetary award, the recommendation hence being only questionably infra petita. Finally, Canada also incurred financial expenses in repatriating the crew and legal expenses amounting to over $ 33,000. Thus the award could also be viewed as constituting compensation for actual material loss.

Stevenson case, supra note 31, at 506; Miliani case, supra note 33, at 591. Heirs of Jean Maninat case, supra note 29. 156 Ibid. at 83. 157 S.S. ‘I’m Alone’ (Canada/USA) (1933/1935), 3 Reports of International Arbitral Awards 1609. 158 See in more detail C. C. Hyde, ‘The Adjustment of the I’m Alone’, 22 American Journal of International Law (1928) at 296-300; Parry, ‘Protection of Individuals’, supra note 129, at 677-678; Wittich, ‘Awe of the Gods’, supra note 26, at 120-123. 154

155

Non-Material Damage and Monetary Reparation in International Law 357 __________________________________________________________________ The second instance cited in doctrine159 as an award of damages for nonmaterial damage suffered directly by a state is the Ruling of the Secretary-General in the Rainbow Warrior affair. The relevant part of the Ruling reads as follows: New Zealand seeks compensation for the wrong done to it and France is ready to pay some compensation. The two sides, however, are some distance apart on quantum. New Zealand has said that the figure should not be less than US $9 million, France that it should not be more than US $4 million. My ruling is that the French Government should pay the sum of US $7 million to the Government of New Zealand as compensation for all the damage it has suffered.160

However, various reasons may be advanced which render the value of this Ruling doubtful as a reliable precedent.161 In particular given the absence of any reasoning it is impossible to ascertain which part of the sum awarded was intended to repair which kind of damage. Taking into account the context and all the circumstances of this very peculiar case, it would appear that the Ruling was a compromise between the conflicting claims of the parties and that the Secretary-General, acting ex aequo et bono, tried to find a solution acceptable to both states rather than to decide by applying legal norms. In contrast, the Tribunal in the second phase of the affair was unequivocal on this point. Although New Zealand did not request monetary compensation the Tribunal devoted no less than five paragraphs to elaborating on the possibility of making such an award.162 In particular it stated: 118. The Tribunal next considers that an order for the payment of monetary compensation can be made in respect of the breach of international obligations involving, as here, serious moral and legal damage, even though there is not material damage. […] It is true that such orders are unusual but one explanation of that is that these requests are relatively rare […]. 119. New Zealand has not however requested the award of monetary compensation – even as a last resort should the Tribunal deny the declarations and orders for the return of the agents. The Tribunal can understand that position in terms of an assessment made by a State of its dignity and its sovereign rights. The fact that New Zealand has not sought an order for compensation also means that France has not addressed this quite distinct remedy in its written pleadings and oral arguments, or even had the opportunity See, e.g., Shaw, International Law, supra note 136, at 718. Rainbow Warrior case I, supra note 99, at 213. 161 See in detail Wittich, ‘Awe of the Gods’, supra note 26, at 123-128. 162 Rainbow Warrior case II, supra note 102, paras 116-120. 159

160

Finnish Yearbook of International Law (Vol. XV, 2004) 358 __________________________________________________________________ to do so. Further, the Tribunal itself has not had the advantage of the argument of the two Parties on the[se] issues […], or on other relevant matters, such as the amount of damages.163

The Tribunal’s consideration that New Zealand did not request an award of damages because it did not want to have its ‘dignity and its sovereign rights’ assessed, is not entirely convincing. Rather it would appear that the reason why New Zealand exclusively sought an order for resuming performance of the primary obligation breached was that it considered this obligation as still being in force. 164 It did not expect the Tribunal to interpret the primary obligation incumbent upon France as being for a fixed term that had already expired. After all, it would seem that reparation by equivalent would have been of no value for New Zealand. 165 Be that as it may, what is important for the present purpose is the clear point the Tribunal made in its dictum to the effect that an award of monetary compensation may be made in principle for non-material damage caused directly to a state. Whether this proposition reflects the existing state of the law is more than doubtful given the lack of clear judicial precedents and the controversial opinions on this issue in doctrine. Diplomatic practice offers more examples of monetary payments for non-material damage to the state. However, as already emphasised earlier, the legal value of these incidents is rather limited, in particular because they do not indicate the legal basis of such payments. It is significant that even where the states involved agree on compensation of direct non-material damage they regularly do so on an ex gratia basis. In any event, examples of monetary payments for non-material damage directly suffered by states are still rare even in diplomatic practice.166 The ILC commentary on the relevant provisions as adopted on first reading was clear on the issue of compensation. Pecuniary compensation was intended to cover not only material damage but also non-material (or moral) damage suffered by

Ibid. at 118-119. See the submission by New Zealand which requested inter alia an ‘order that the French Republic shall promptly return Major Mafart and Captain Prieur to the island of Hao for the balance of their three year periods in accordance with the conditions of the First Agreement’. Ibid. at 222, para. 7. New Zealand also pointed out that any other remedy than an order for return of the two agents ‘would be inappropriate in this case’ since ‘a mere declaration that France was in breach would be simply a statement of the obvious, and would not be satisfactory at all for New Zealand’. Ibid. at 268. 165 See Bowett, ‘Treaties and State Responsibility’, supra note 137, at 144-145. 166 See the review in Arangio-Ruiz, Second Report, supra note 22, at 35-40, paras 119-134 which mainly identifies non-pecuniary remedies. The only contemporary example in diplomatic practice of a monetary payment for non-material damage to the state mentioned by Arangio-Ruiz appears to be the debatable ruling of the Secretary-General in the Rainbow Warrior affair. 163 164

Non-Material Damage and Monetary Reparation in International Law 359 __________________________________________________________________ private individuals or agents of the injured state.167 Both types of damage were considered economically assessable although it is doubtful whether non-material damage to individuals, such as pain and suffering, is indeed ‘economically assessable’.168 But the idea behind that term probably was that in municipal law various criteria have evolved on the basis of which these damages are to be evaluated. On the other hand, reparation of non-material damage to the state was governed exclusively by the remedy of satisfaction which took pecuniary and nonpecuniary forms. Yet with regard to damages, draft Article 45 on satisfaction only allowed either trivial amounts by way of nominal damages or very large amounts by way of aggravated damages, but nothing in between. Thus the International Law Commission clearly rejected the analogy, in terms of monetary compensation, between non-material damage to individuals and that to the state. While the former was considered as forming part of the material damage of the state and hence covered by compensation, the latter was in principle to be remedied by nonpecuniary forms of satisfaction except for aggravated damages in the rare case of gross breach of international obligations. In contrast, the finally adopted text (Article 36 on compensation and Article 37 on satisfaction) is ambiguous not the least because the Commission was still divided on this matter. 169 On the one hand, compensation no longer is restricted to ‘economically assessable damage’ but covers any damage which is ‘financially assessable’. This phrase could either broaden the scope of damages so that in analogy to compensation for non-material damage to the individual Article 36 also allows for compensation for non-material damage to the state. Or it could be argued that the mere replacement of the terms ‘economically assessable’ by ‘financially assessable’ only clarifies that Article 36 also covers certain types of damage, such as moral damage to individuals, which, though not being assessable in strictly economic terms, are generally accepted as susceptible of pecuniary compensation. Special Rapporteur Crawford argued in favour of monetary compensation also in case of mere non-material damage to the state. 170 He also stated that the term ‘financially assessable damage’ was included ‘to indicate that compensable damage is

Yearbook of the International Law Commission 1993, vol. II, part two, commentary to draft Article 8 on compensation, at 71, para. 16, and 72, para. 20; commentary to draft Article 10 on satisfaction, at 76, para. 4. 168 See also Crawford, The Articles on State Responsibility, supra note 20, at 34 in footnote 116. 169 Report of the International Law Commission on the Work of Its Fifty-second Session, UN GAOR, 55th Sess., Supp. No. 10, UN Doc. A/55/10 (2000), para. 211. 170 Crawford, Third Report, supra note 123, para. 191. See also the arguments by Special Rapporteur Crawford in ILC Report 2000, supra note 169, para. 235. 167

Finnish Yearbook of International Law (Vol. XV, 2004) 360 __________________________________________________________________ not limited to that which can be assessed in monetary terms’. 171 But this emerges neither from the final text nor from the commentaries in an unequivocal manner and it is submitted that the mere replacement of these two terms does not solve the basic disagreement as to whether non-material damage to the state is financially assessable or not. This will readily be seen by a careful reading of the commentaries to Articles 36 and 37. The relevant part of the commentary to Article 36 provides as follows: As compared with satisfaction, the function of compensation is to address the actual losses incurred as a result of the internationally wrongful act. […] Compensation corresponds to the financially assessable damage suffered by the injured State or its nationals. […] Thus compensation generally consists of a monetary payment, though it may sometimes take the form, as agreed, of other forms of value. It is true that monetary payments may be called for by way of satisfaction under article 37, but they perform a function distinct from that of compensation. Monetary compensation is intended to offset, as far as may be, the damage suffered by the injured State as a result of the breach. Satisfaction is concerned with non-material injury, specifically non-material injury to the State, on which a monetary value can be put only in a highly approximate and notional way.172

As to satisfaction, the relevant passage in the commentary to Article 37 reads: Material and moral damage resulting from an internationally wrongful act will normally be financially assessable and hence covered by the remedy of compensation. Satisfaction, on the other hand, is the remedy for those injuries, not financially assessable, which amount to an affront to the State.173

If read in their context, these two statements appear to bear the following meaning. In addition to any form of material damage – whether to the individual or to the state – compensation in Article 36 only covers non-material damage suffered by individuals as being financially assessable. This is also evidenced by the fact that the only type of non-material damage discussed in the commentary to Article 36 is that done to individuals,174 while non-material damage to the state is mentioned in the context of satisfaction only.175 By the same token, non-material damage suffered

Crawford, The Articles on State Responsibility, supra note 20, at 34, footnote 116. Commentary to Article 36, supra note 4, para. 4. 173 Commentary to Article 37, supra note 4, para. 3. 174 Commentary to Article 36, supra note 4, para. 16. 175 Commentary to Article 37, supra note 4, paras 3-4.

171 172

Non-Material Damage and Monetary Reparation in International Law 361 __________________________________________________________________ directly by the state is not covered by compensation but by satisfaction which in turn does not take the form of substantial monetary payments. This is supported by the fact that the commentary only mentions two examples of ‘pecuniary satisfaction’, that is, the rather peculiar remedy of a trust fund to manage compensation payments in the interest of the beneficiaries176 and the award of symbolic damages. But no mention is made of substantial damages as ‘pecuniary satisfaction’ for non-material damage to the state as suggested by the Tribunal in Rainbow Warrior. On balance it would appear that the whole dilemma as to whether nonmaterial damage to the state may be repaired by substantial monetary payments (i.e. compensatory damages) hinges upon a solution of the basic disagreement as to the admissibility of the analogy between non-material damage to the individual and nonmaterial damage to the state. 177 As we have seen above,178 the cases of damages being awarded to individuals as damages for non-material damage are different because most municipal legal systems per se recognise similar claims of individuals for specific types of non-material injury. But there is a general reluctance to transfer this ‘principle’ of compensation to the inter-state level, and this reluctance is but a reflection of the cautious approach, to say the least, of international courts and tribunals to the question of compensation for non-material damage to the state. The virtually non-existent practice leaves ample room for conflicting interpretations. To give an example, the declaration by the International Court in the Corfu Channel case on the wrongfulness of the United Kingdom mine-sweeping operation in the territorial waters of Albania179 may be interpreted in different ways. On the one hand, such a declaration is generally considered sufficient to repair the nonmaterial damage of the victim state without any need for the payment of damages. On the other hand, in Corfu Channel the Court observed that its declaration was ‘in accordance with the request made by Albania through her Counsel’ which might be taken to indicate that the Court would have been prepared to award damages had Albania so requested.180 Assuming that, as suggested by the tribunal in the Rainbow The Commission may have been influenced by the practice of the Inter-American Court of Human Rights, see e.g. Aloeboetoe et al.v. Surinam (Reparations), Inter-Am. Ct. H. R., Ser. C (1993), No. 15, para. 2 of the dispositif. For interesting ideas on such a remedy under general international law see Dominicé, ‘Réparation constructive’, supra note 22, passim. 177 See also Bowett, ‘Treaties and State Responsibility’, supra note 137, at 144, note 26. 178 See supra the section ‘Compensation for Non-Material Damage to the Individual’. 179 Corfu Channel case (Merits) (UK v. Albania), ICJ Reports (1949) 15, at 35. 180 This is argued by Brownlie, State Responsibility, supra note 11, at 209; Brownlie, Principles, supra note 112, at 445. See also the Court’s previous observation that ‘[d]uring the oral proceedings, Counsel for Albania discussed the question whether a pecuniary satisfaction was due. As no damage was caused, he 176

Finnish Yearbook of International Law (Vol. XV, 2004) 362 __________________________________________________________________ Warrior case II,181 a monetary award may indeed be made for non-material damage to the state the question arises as to whether such an award is one of nominal damages, compensation, pecuniary satisfaction, aggravated damages, or even punitive damages. It is significant for the existing state of confusion that both the I’m Alone and the Secretary-General’s ruling in Rainbow Warrior I are cited in doctrine as examples for all of the five aforementioned remedies.182 To solve this problem, some authors propose to examine the expressed intent of the court or tribunal but at the same time rightly admit that this is hardly enlightening since most awards do not contain any express reference to the intent or purpose of the award.183 Nominal and aggravated or punitive damages may easily be distinguished from substantial damages by the amounts awarded, being either trivial or excessive. More difficult is the task of drawing a distinction, if any, between compensation and what is called ‘pecuniary satisfaction’.184 Both remedies take the same form, that is, the payment of a substantial sum of money. Generally it is said that compensation is the appropriate remedy for actual losses whereas pecuniary satisfaction is a monetary payment for non-material damage.185 This however is begging the question rather than answering it. It seems that the more general problem behind this question is how to distinguish between compensation and satisfaction. It is sometimes argued that the distinction is to be made according to the different functions these two remedies serve. Thus compensation, as its title indicates, is said to be purely did not claim any sum of money’. Corfu Channel case, supra note 179, at 25-26. See also the dissenting opinion of P.J. Azevedo at 113-114. In fact, it would appear that Counsel for Albania alluded to nominal damages. 181 See the text accompanied by supra note 163. 182 Shaw, International Law, supra note 136, at 718, for instance, considers both cases as examples of monetary compensation for non-material damage. Like Gray (Judicial Remedies, supra note 1, at 43), Arangio-Ruiz in his Second Report, supra note 22, considers the I’m Alone as an example of ‘pecuniary satisfaction’ (ibid. at para. 115, whereas the ruling in Rainbow Warrior I in his view is an example of a punitive damages award (ibid. at paras 138-140). The I’m Alone is considered as an example of an award of punitive (or penal) damages apparently by M. M. Whiteman, Damages in International Law (US Government Printing Office: Washington, 1937), vol. 1, at 717, by the American Law Institute, Restatement of the Law. The Foreign Relations Law of the United States (Third) (American Law Institute: St. Paul, 1987), para. 901, reporters’ note 5, and by Jennings and Watts, Oppenheim’s, supra note 79, vol. I, at 533 in note 4. Brownlie, for his part, considers the award in the I’m Alone as one of compensation (Principles, supra note 112, at 467). Finally the ILC in its commentary to Article 37, supra note 4, para. 5 in footnote 623, incomprehensibly considers both cases as examples of symbolic damages awards although the sums awarded are relatively high. 183 Gray, Judicial Remedies, supra note 1, at 42; N. H. B. Jørgensen, ‘A Reappraisal of Punitive Damages in International Law’, 68 British Yearbook of International Law (1997) 247 at 259-261. 184 See also Brownlie, Principles, supra note 112, at 444; Gray, Judicial Remedies, supra note 1, at 41-42. 185 E.g., Arangio-Ruiz, Second Report, supra note 22, at 31; García Amador, Sixth Report, supra note 7, at 19-20.

Non-Material Damage and Monetary Reparation in International Law 363 __________________________________________________________________ compensatory, whereas satisfaction is said to be of a punitive or afflictive nature.186 But this is highly doubtful and while such an understanding may have been accurate with regard to outdated examples of satisfaction in diplomatic practice,187 it certainly is no longer valid today. In particular if one looks at the most common forms of satisfaction, such as a formal apology or declaratory relief by a court or tribunal, it is hard to see how they could perform any punitive function. It would then seem that the main distinction is that satisfaction is of a subsidiary nature: According to article 37(1) the responsible state must give satisfaction only if the damage caused by the wrongful act cannot be made good by restitution or compensation which will most likely be the case with regard to non-material damage. But the distinction is blurred if ‘pecuniary satisfaction’ denotes a substantial sum of money to repair non-material damage. It seems that the only purpose of this distinction would then be to hide the problem of quantification: Compensation is concerned with damage that can more or less be set in figures, whereas ‘pecuniary satisfaction’ is in place for non-material damage which can hardly be assessed in monetary terms. In order to simplify the matter and to reduce at least the terminological confusion, it is suggested to abandon the term ‘pecuniary satisfaction’ which is unhelpful when substantial – that is, more than merely symbolic but less than excessive – damages are at issue. Whether called pecuniary satisfaction or compensation proper, any award of (non-excessive) damages is, in principle, a form of monetary compensation for some form of damage.188 In other words, once the proposition is admitted that monetary compensation may be awarded also for nonmaterial damage directly suffered by the state, it makes things unnecessarily complicated to distinguish from it pecuniary satisfaction. Whether such monetary payments by way of compensation are available in case of non-material damage to the state is, to be sure, still a matter for debate. Punitive and Aggravated Damages The difficulties we have just encountered in determining the proper function of the payment of a substantial sum of money equally apply in the relation between See e.g. Arangio-Ruiz, Second Report, supra note 22, at 32-33, para. 108, and at 40, para. 136. Also the ILC commentary alludes to that difference in the nature of satisfaction, when it suggests that monetary payments under Article 37 perform a function distinct from that of compensation. See commentary to Article 36, supra note 4, para. 4. The commentary however does not expressly state that this ‘distinct’ nature is an afflictive or punitive one. 187 See again Arangio-Ruiz, Second Report, supra note 22, at 35-39, paras 119-126. See also Wittich, ‘Awe of the Gods’, supra note 26, at 140-142. 188 Cf. G. Schwarzenberger, International Law as Applied by International Courts and Tribunals (3rd edn, Stevens: London, 1957) vol. I, at 658; Riphagen, Second Report, supra note 112, para. 84. 186

Finnish Yearbook of International Law (Vol. XV, 2004) 364 __________________________________________________________________ compensatory and punitive damages. On the face of it, the distinction here is clearer than that between compensation and satisfaction. Compensatory damages are exclusively intended to make good any damage caused by the wrongful act whereas punitive damages – as their title indicates – serve as a measure of punishment for a particularly serious violation. Aggravated damages on the other hand are compensatory in nature and are usually awarded for injury to feelings. They are adapted, on an increased scale, to the seriousness of the breach. But in international law the distinction is far from clear because unless such an award is specifically designated as one of punitive or one of compensatory damages, the object of the award may only be inferred either from the terms of the award itself or from the circumstances of the particular case, such as the extent of the damage incurred or the outrageous conduct of the wrongdoing party. Unfortunately, the whole problem is again worsened in case of non-material damage since the latter is not easily, if at all, assessable in monetary terms; hence the discretionary element involved in assessing damages is exacerbated. However, the fact that an award of a sum of money not in proportion to the material loss sustained does not transform this award into one of punitive damages.189 There is no justification for such an apodictic assumption which ignores any compensatory aspect of such an award. Similarly an award of damages to the individual who has suffered ‘moral’ damage, such as pain or suffering, does in principle not imply any punitive or afflictive aspect. Rather, the sum awarded is usually designed to make up for the non-material damage and thus has an essentially reparative purpose. Therefore it is unhelpful to argue that in international law punitive or aggravated damages correspond to the ‘payment of a sum of money not in proportion to the size of the material loss’.190 Such an understanding is doomed to fail in cases where there is no material but substantial non-material damage. International tribunals have at times rejected requests for an award of damages in the absence of material loss because such an award would be wholly punitive and the constituent instrument or the compromis would not allow the imposition of such a penalty.191 Authors for their part hardly ever have the same concept in mind when they refer to punitive damages. One is faced here again with the general dilemma of identifying the content of certain notions which are used in different ways. This is not really surprising keeping in mind that the concept of punitive Jørgensen, Punitive Damages, supra note 183, at 261. Arangio-Ruiz, Second Report, supra note 22, at 41, para. 139. 191 Stevenson case, supra note 31, at 506; Carthage and Manouba cases, supra note 151, at 460 and 475; Lusitania case, supra note 44, at 41-42. See also the Brook case (1898), in Moore, International Arbitrations, supra note 151, vol. IV, at 4311. For an analysis see Wittich, ‘Awe of the Gods’, supra note 26, at 131139.

189

190

Non-Material Damage and Monetary Reparation in International Law 365 __________________________________________________________________ damages has its origin in common law and is unknown as such in a great many other domestic legal systems, in particular those with a civil law tradition. Therefore it is almost inevitable that scholars not familiar with punitive damages take a different approach than those who are accustomed to this concept. But there is yet another consideration which makes it even more difficult to distinguish between punitive and compensatory damages in international law. Assuming that direct non-material damage to the state may be compensated by way of monetary indemnification even in the absence of any material loss, then the amount of compensation must be adapted to the seriousness of the breach, just like the amount of compensation in case of material damage suffered depends on the extent of the latter. In other words, the more serious the wrongful act, the more serious is the non-material damage suffered by the injured state and, hence, the larger the amount of compensation which would then take the form of aggravated damages. The problem however is that the criteria for assessing the seriousness of the breach will in most cases be identical with those which determine the threshold for the availability of punitive damages. The only way to distinguish between compensatory and punitive damages would then be the purpose of these awards which however will not be easy to determine in most cases. As to the availability of punitive damages in international law, suffice it to state that they are highly disputed.192 There is no judicial or arbitral authority for an award of punitive damages properly so-called and for a number of good reasons doctrine is very repugnant to the idea of introducing them into international law,193 unless there is some special regime for their imposition.194 Aggravated and punitive damages, respectively, have also been under consideration by the ILC. Draft Article 45(2)(c), which dealt with satisfaction, provided ‘in cases of gross infringement of the rights of the injured State’ for the payment of ‘damages reflecting the gravity of the infringement’. Special Rapporteur Arangio-Ruiz clearly envisaged punitive damages,195 and likewise the Commission in commenting on draft Article 45 referred to the synonymous term exemplary

For a detailed analysis of the issue see Wittich, ‘Awe of the Gods’, supra note 26, passim; Wittich, ‘Lusitania v. Rainbow Warrior: Punitive Damages im Rahmen der Staatenverantwortlichkeit’, in H. F. Köck (ed.), Rechtsfragen an der Jahrtausendwende. Akten des 22. Österreichischen Völkerrechtstages (Linde: Vienna, 1998) 247; Jørgensen, ‘Punitive Damages’, supra note 183, passim. See also G. Carella, ‘I punitive damages e la riparazione del danno morale in diritto internazionale’, 67 Rivista di diritto internazionale (1984) 751. 193 Wittich, ‘Awe of the Gods’, supra note 26, at 113-142. 194 Crawford, Third Report, supra note 123, para. 190. 195 See his proposed Article 10, Second Report, supra note 20, at 56, para. 191. See also paras 136-9. 192

Finnish Yearbook of International Law (Vol. XV, 2004) 366 __________________________________________________________________ damages,196 whereas Special Rapporteur Crawford interpreted that provision as providing for aggravated damages.197 Due to the highly controversial nature of punitive damages, Crawford suggested to confine punitive damages to cases of ‘gross breach of community obligations’.198 Alternatively he proposed that if the Commission did not wish to retain damages reflecting the gravity of the breach as provided for by former draft Article 45(2)(c), such a provision as to aggravated damages could be applied to gross breaches. In the final text the Commission could neither agree on punitive nor did it opt for aggravated damages. With regard to such damages as a possible consequence of serious breaches of obligations under peremptory norms of international law, the Commission left the matter for the future development of the law.199 Wise as this decision may be, it is interesting to note that the Commission did not dare to mention punitive or at least aggravated damages as candidates for additional consequences of such serious breaches.

Concluding Remarks The foregoing analysis shows that the concept of non-material damage to the state is elusive and while it forms part of the standard repertoire of international law textbooks it has not played a significant role in international practice. Non-material damage to the state was hardly an issue before international courts and tribunals and, what is more, awards of monetary payments for immediate non-material damage to the state are virtually non-existent. It is often asserted that the main reason for this lack of case law is that states are reluctant to submit cases of direct injuries to courts or tribunals and prefer diplomatic means of settlement without the involvement of a third party.200 As the umpire in the Stevenson case said: To have measured in money by a third and different party the indignity put upon one’s flag or brought upon one’s country is something to which nations do not ordinarily consent. […]. It is one of the cherished attributes of sovereignty which it will not usually or readily yield to arbitrament or award. Herein is found a Commentary to Article 45 [10], Yearbook of the International Law Commission 1993, vol. II, part two, 79 para. 12 and in note 308. See also the report of the Drafting Committee, Summary Records of the 44th Session, Yearbook of the International Law Commission 1993, vol. I, 221 para. 57. 197 Crawford, Third Report, supra note 123, paras 189-190. 198 Ibid. para. 409. 199 Commentary to Article 41, supra note 4, para. 14. 200 Parry, ‘Protection of Individuals’, supra note 129, at 684-685; Brownlie, State Responsibility, supra note 11, at 237-238; Gray, Judicial Remedies, supra note 1, at 87. 196

Non-Material Damage and Monetary Reparation in International Law 367 __________________________________________________________________ reason, if not the reason, why such matters are not usually, if ever, submitted to arbitration.201

While this may have been true in the past, in recent years states have been more willing to submit cases involving direct injuries to judicial or arbitral settlement. The Diplomatic and Consular Staff in Tehran, Military and Paramilitary Activities, GabÿíkovoNagymaros Project, Saiga, LaGrand, Arrest Warrant cases all bear witness of that development which underlines the minor importance that notions such as honour, dignity and prestige of states play in international relations today. And yet, even where states claim to have suffered non-material damage they are very hesitant to claim damages. Rather they generally confine their claims to requests for declaratory relief,202 and even where they request damages for non-material damage, courts and tribunals reject such claims.203 It is of course a matter for speculation what the reasons are for this generally repugnant attitude towards damages for non-material damage but it would seem that where the responsible state has consented to judicial or arbitral dispute settlement, the state having suffered direct non-material damage will usually be content with a declaration of the wrongfulness which it considers sufficient to make good the non-material damage it has suffered. Political reasons may also induce the injured state not to make a claim for damages, or the injured state is simply of the opinion that it is not entitled under international law to make a claim for damages in the absence of material loss. To date, the analogy between moral damage to individuals and non-material damage to states has not been drawn with regard to monetary compensation. Thus, while it is uncontested that moral injury to individuals is to be made good by compensation, the lack of practice and the controversies in doctrine indicate that monetary payments are at present not an available remedy for non-material damage to the state. But at the same time it must be emphasised that the availability of such monetary payments should not be ruled out a priori. Once it is acknowledged that such damages are compensatory and not inflictive because they are meant to make good substantial non-material damage to the state there is no sound reason to discard them as a matter of principle. If payments of substantial damages for nonmaterial damage to the state are considered admissible they should be awarded under the title of compensation rather than satisfaction. The term ‘pecuniary satisfaction’ is misleading and should be abandoned. Whether such damages may

Stevenson case, supra note 31, at 506. As e.g. in the LaGrand Case (Germany v. USA), ICJ Reports (2001), para. 128, and the Arrest Warrant Case, supra note 94, para. 75. 203 As e.g. in the Saiga case, supra note 49, para. 176. 201 202

Finnish Yearbook of International Law (Vol. XV, 2004) 368 __________________________________________________________________ then be called aggravated or compensatory will depend on the circumstances of the particular case as the difference is one of quantification rather than a matter of principle.

Book Reviews & Review Articles

Book Reviews & Review Articles 371 _________________________________________________________________ GREAT POWERS AND OUTLAW STATES: UNEQUAL SOVEREIGNS IN THE INTERNATIONAL LEGAL ORDER. By Gerry Simpson. Cambridge Studies in International and Comparative Law, Cambridge University Press, 2004. 391 pages. ISBN 0-521-82761-2. Whatever the earlier claims of Europe’s international law to universality, the resultant practical challenges which arose as the expansion of Europe’s international system accelerated in the latter nineteenth century required new international legal definitions and broadened concepts of the law’s scope. Almost by definition, the newly emerging world-wide international legal order established the boundaries of international society – those within its purview and those beyond it – in the parlance of the era, the ‘civilized,’ ‘barbarous,’ or ‘savage’ states or entities.1 The expansion of the purview of international law combined with other longstanding dilemmas – issues of sovereign equality, hierarchy, and pluralism among states – to fuel the next stage of debate in what has been called ‘the essence of international law since at least 1815’ (Preface, xiii). Today, while the nomenclature has changed, the interplay of issues regarding sovereign equality and hierarchy, system pluralism and anti-pluralism, continues to challenge our contemporary globalized international legal order. This includes the definitions and identities of those within accepted international society and those considered ‘outlaws.’ To that end, Dr. Gerry Simpson’s Great Powers and Outlaw States seeks ‘to offer a fresh understanding of sovereignty grounded in a complex of norms and ideas in which the competing claims of legalized hegemony, antipluralism and sovereign equality are arranged and ordered’ (Preface, xii). Definitions establish the analytical framework. For Simpson, ‘legalized hegemony’ is the ‘realization through legal forms of Great Power prerogatives’: ‘this tradition, its internal struggles, its external projections and legitimation through law, and its awkward relationship with law’s egalitarian face’ (Preface, x). ‘Anti-pluralism’ is ‘the practice of making legal distinctions between states on the basis of external behaviour or internal characteristics’ (Preface xii). The familiar tension between pluralist, egalitarian aspects and anti-pluralist, hierarchical (or hegemonic) aspects of the international legal order establishes the conditions for what Simpson calls ‘juridical sovereignty’ (Preface, xii). ‘Outlaw states’ are those ‘mad, bad, or dangerous, or all three’ (Preface, xi). Some are ‘incapable of forming the correct attitude towards the international legal order’ (mad). Some are ‘serial violators of the dominant mores of the international legal order’ (bad). Some are subject to ‘internal malfunction or propensity to disorder’ (dangerous). Within this framework, Simpson seeks to take on ‘some of the most controversial matters in law and politics’ (Preface, xiii). For example, ‘to what extent ought the international community to be composed of like-minded states’? Should state diversity be restricted in pursuit of the democratic peace? Ought treatment of Editor’s note: see, for example, Gerrit W. Gong, The Standard of ‘Civilization’ in International Society (Clarendon Press: Oxford, 1984).

1

Finnish Yearbook of International Law (Vol. XV, 2004) 372 _________________________________________________________________ ‘uncivilised’ states in the nineteenth century caution the use of the language of democracy, civilization and decency today? He addresses these and other pertinent issues in 353 pages and five Parts. These Parts include Introduction, Concepts, Great Power Histories, Outlaw States Histories, and Conclusion. Over these pages and parts, Simpson usefully wrestles with the dynamics of equality, hierarchy, and anarchy, including at specific points in particular eras of international law, e.g., at Vienna, The Hague, San Francisco, and during the Kosovo intervention. In his historical analyses, Simpson is open to the reality that the publicists at each historical point likely sought definitions and a legal order expressive of the common values, common institutions, and common modalities which characterize a working international society. This includes the operational realities for those states or entities which participate as full members in good standing and those which are perceived for whatever reason to be outlaws. However, as is so often the case, it is easier to see limitations of such analysis and thinking in retrospect, from the vantage point of a different (later) time and place. For example, from the perspective of the time, the standard of ‘civilization’ which emerged as a central organizing principle in the nineteenth century’s international law was intended to broaden and potentially universalize international legal participation, not to create a ‘liberal anti-pluralist’ barrier to such (at 243). Similarly, whether they consciously trace their intellectual and policy roots to Grotian or realists thinking, subsequent efforts to parse issues of hierarchy or antipluralism in fact discover that ‘exclusion, civilization, culture and difference are as deeply embedded in the system as universality, legality and equality’ (at 315). This means that future international lawyers will also no doubt look with the same advantage of hindsight at current efforts to explain and make legally rational what occurred in Afghanistan and elsewhere as the ‘norms and practices of hegemony and anti-pluralism were, again, brought into relief’ (at 320). This is only to say, as Heisenberg theorists remind us, that it remains difficult to specify location and velocity simultaneously,2 as the very act of analysis adds a layer of interpretation to the international law and its practice at each given instant. Gerrit W. Gong

2 For example, one can see such themes anticipated by, and can imagine them brought under continuing scrutiny in, for example, Ian Brownlie, ‘The Expansion of International Society: The consequences of the Law of Nation,’ in Hedley Bull and Adam Watson (eds.), The Expansion of International Society (Oxford University Press, 1984).

Book Reviews & Review Articles 373 _________________________________________________________________ INTERNATIONAL LEGAL ARGUMENT IN THE PERMANENT INTERNATIONAL COURT OF JUSTICE: THE RISE OF THE INTERNATIONAL JUDICIARY. By Ole Spiermann, Cambridge: Cambridge University Press, 2005. 490 & XLIII pages. ISBN 0-521-83685-9. The signing, in 1998, of the Statute of the International Criminal Court marked more than just the signing of yet another treaty. Its main relevance, and the cause of much anxiety when the US later ‘unsigned’, resided in the promise it carried: with the creation of an international criminal court, international criminal law had finally acquired a figurehead, and international law had finally become complete. Now there was no human activity left which would not, in one way or another, come within the ambit of international law. In roughly a century’s time (a century of two world wars, the Holocaust, and a handful of genocides), international law had moved from a mere law of co-existence to not just a law of co-operation, as Friedmann famously observed, but beyond: a system of law (although all too positivist jurisprudents might still beg to differ) like any other system of law, covering, in principle, everyone and everything. Individual criminal responsibility meant that we could legitimately lock up individuals for crimes committed under international law; and universal jurisdiction (rejected by the drafters of the Rome Statute, but increasingly accepted by domestic courts in criminal cases) meant that people could be prosecuted over crimes committed wherever in the world. Notwithstanding this considerable promise, the world continued to be less than fully paradisiacal. No great eternal peace came down on earth; the guns have not stopped making noise – and victims; states still invade each other under flimsy or downright false pretences; and atrocities are being committed by west and east, north and south, friend and foe, alike. So we now have a complete body of international law, so complete indeed that nothing escapes the scrutiny of international lawyers.1 But what is it good for? What purposes does it serve? Of course, by making a vocabulary available it may facilitate communication on topics such as state succession, but isn't there something more to it? Shouldn’t there be? The move to history is usually a tell-tale sign of a discipline in crisis: a response to anxieties about what exactly the discipline is supposed to be engaged in. It is no surprise then that international law has, over the last decade or two, seen such a move to history: we can’t really figure out what to do with and in international law, so let us consult our predecessors, and see what inspired them, mindful perhaps of Walter Benjamin’s propositions on the links between past and present. 2 Perhaps some of their ideals, or maybe only their ideas, will rub off. Hence, international law 1 An example of the wide scope of international law is the doctoral dissertation of Tapio Puurunen (defended in February 2005), an international lawyer, prepared within the department of international law of the University of Helsinki, and dealing with dispute resolution and consumer protection in electronic commerce. See Tapio Puurunen, Dispute Resolution in International Electronic Commerce (University of Helsinki, 2005). 2 See Walter Benjamin, ‘Theses on the Philosophy of History’, in his Illuminations (Fontana: London, 1992 [1973], Zohn transl.) 245-255.

Finnish Yearbook of International Law (Vol. XV, 2004) 374 _________________________________________________________________ saw the creation of a first journal specialized in its history (and still fittingly, if somewhat anachronistically, bilingual): the Journal of the History of International Law. Old authorities, from various political backgrounds, have found themselves resurrected: Carl Schmitt and Hans Kelsen are probably more in vogue than ever before.3 Law schools are organizing conferences bringing international lawyers and (legal) historians together. Those legal historians have started to publish in nonhistorical legal journals.4 The leading international law journal (the European Journal of International Law) self-consciously explores what it refers to as the European tradition in international law, and some rather brilliant studies have been written (as well as some less good ones) excavating the history of the discipline.5 For, and this is no coincidence either, it is the history of the discipline we have come to be concerned with, not traditional diplomatic history or the history of regimes or institutions.6 *** Ole Spiermann’s recently published work, a revised version of a doctoral dissertation prepared at Cambridge, neatly falls within this stream of intellectual history. His is a lengthy, elegant, generally well-written analysis of the case-law of the first ever standing international tribunal with universal ambitions, the Permanent Court of International Justice. Drawing on painstaking archival research, and using the notes and correspondence of some of the judges, he paints a vivid picture of what the PCIJ did, how its judges connected with each other (or didn’t), how far the 3 See, among many, many others, Christoph Burchard, ‘Puzzles and Solutions: Appreciating Carl Schmitt’s Work on International Law as Answers to the Dilemmas of his Weimar Political Theory’, 14 Finnish Yearbook of International Law (2003) 89-128; Jochen von Bernstorff, Der Glaube an das universale Recht: Zur Völkerrechtstheorie Hans Kelsens und seiner Schuler (Nomos: Baden-Baden, 2001). 4 A prime example would be Randall Lesaffer, a legal historian publishing in such publications as the British Yearbook of International Law and the European Journal of International Law. See Randall Lesaffer, ‘The Grotian Tradition Revisited: Change and Continuity in the History of International Law’, 73 British Yearbook of International Law (2002) 103; Randall Lesaffer, ‘Argument from Roman Law in Current International Law: Occupation and Acquisitive Prescription’, 16 European Journal of International Law (2005) 25-58. 5 A brief selection covering the last decade and various jurisdictions: C.C.A. Voskuil et al., The Moulding of International Law: Ten Dutch Proponents (TMC Asser Instituut: The Hague, 1995); Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (Cambridge University Press, 2002); Mark W. Janis, The American Tradition of International Law: Great Expectations 1789-1914 (Clarendon Press: Oxford, 2004). 6 Lest I be considered the pot calling the kettle black, I should perhaps underline that writing this implies no value judgment, and that I too have undertaken some work in this tradition. See, e.g., Jan Klabbers, ‘The Sociological Jurisprudence of Max Huber: An Introduction’, 43 Austrian Journal of Public and International Law (1992) 197-213; Jan Klabbers, ‘Clinching the Concept of Sovereignty: Wimbledon Redux’, 3 Austrian Review of International and European Law (1998) 345-367; and Jan Klabbers, ‘The Life and Times of the Law of International Organizations’, 70 Nordic Journal of International Law (2001) 287317.

Book Reviews & Review Articles 375 _________________________________________________________________ influence of its first registrar Åke Hammarskjöld went (later briefly elevated to the bench until his untimely death), and other wonderful pieces. All this is based on the intuitively plausible thesis that the years of the PCIJ were the formative years of international law: many of today’s rules and institutions were put in place by the Permanent Court. The Permanent Court was, to Spiermann’s mind, a ‘pioneering institution’ (at 393), and while he cites those who thinks the PCIJ has little relevance for today, he begs to differ, agreeing with Vaughan Lowe that during the Permanent Court’s tenure, international law ‘arguably reached the stage of practical completeness.’ (at 19)7 The Permanent Court, short and good, ‘put international law into practice, and did so within a novel context.’ (at 20) This historical thesis about the pioneering work of the PCIJ would have completely satisfied the present reviewer’s appetites. I thoroughly enjoyed reading about how the Court functioned, and would have happily left it at that. It is this what makes Spiermann’s book, as James Crawford writes in the foreword, quite ‘splendid’ (at XIV). Spiermann writes with authority, and helps to paint a vivid picture of a legal system in development. At its best moments, the book brings the earlier period to life, housing it with real people of flesh and blood, with their own hangups, sympathies and preferences. It is based on impressive archival research, and the selection of materials is done with an eye for detail. In short, as an intellectual history within international law, this is indeed splendid stuff, and important too. It brings the subtitle of the book (‘The Rise of the International Judiciary’) to blossom. Had Spiermann stopped here, he would have written a wonderfully concise work in intellectual history, providing a vivid portrait of the rise of the international judiciary. This would have been enough to satisfy both the history-inclined hoping for a good read, and those with a theoretical interest in the development of international law. Yet Spiermann did not stop here. As the main title of the book suggests, the work is not so much intended as a history (or not only as a history, perhaps), but as a theoretical study on international legal argument. Spiermann’s main ambition is to construct a thesis on international law: how it works, and doesn’t. The historical research, splendid as it is and supportive as it is of its own thesis on the completion of international law, is emphatically placed in the service of yet a bigger and more general argument; yet it is this central argument that is difficult to grasp, and fails to convince. *** Hans Kelsen famously held that states, and their national law, owe their existence to international law, for it is only through international law that statehood can manifest itself. That thesis was always vulnerable to reversal: one might just as easily say (as 7 Spiermann here cites Vaughan Lowe, ‘The Politics of Law-making: Are the Method and Character of Norm Creation Changing?’, in Michael Byers (ed.), The Role of Law in International Politics (Oxford University Press, 2000) 207 at 211.

Finnish Yearbook of International Law (Vol. XV, 2004) 376 _________________________________________________________________ Triepel did) that states came first and that international law, in turn, owes its existence to states. Spiermann sides with Triepel’s camp, and seems to view international law essentially as dealing with the leftovers of domestic law: ‘international law is the response to a need, felt by national lawyers, for law that separates and complements the several national legal systems.’ (at 46) In essence, international law is centred around the state, and of the state there are three possible conceptions: the state as a national sovereign; the state as an international law subject, and the state as an international co-sovereign. In the end, the ‘cardinal dichotomy, national versus international, does not translate as internal versus external but as one national sovereign versus more national sovereigns, or single versus plural.’ (at 46)8 This terminology is Spiermann’s own, and it already hints at some of the difficulties inherent in his theoretical framework. For, if words mean anything at all, there is no particular reason to suppose that the three conceptions of the state are not identical, or can at least be present simultaneously. Surely, many lawyers would feel that the state can be both national sovereign and subject of international law, and international co-sovereign, at the same time: indeed, isn’t that precisely the trick? Isn’t that precisely how international lawyers intuitively reconcile state sovereignty with the very existence of international law, something along the lines of the classic Wimbledon dictum that treaty-making is an attribute of sovereignty? Either way, the distinctions Spiermann makes are not always easy to grasp. Matters are not greatly helped by Spiermann’s simultaneous use of the more accepted terminology of international law being divided between a law of cooperation and a law of co-existence. These roughly coincide with conceptions of the state as subject of international law and as international sovereign (or co-sovereign?) (at 49), and both have their basis in the conception of the state as a national sovereign: ‘because contracts between sovereigns are not suited to be governed by the national legal system of one national sovereign [...] they are allocated to international law.’ (at 49) On top of this, international legal argument comes with a double structure, outlining the relations between the various conceptions of the state. There is first what Spiermann refers to as the ‘basic’ structure of international legal argument, which ‘advances from the conception of the state as a national sovereign to the international law of co-existence.’ (at 78) This then seems to stand for the general, often assumed progressive story of international law: from anarchy to something approximating world order. Second, there is the somewhat unfortunately monikered ‘dynamic’ structure of international legal argument, which seems to be largely regressive (at least when juxtaposed to the dominant progressive story): ‘the dynamic structure advances from the international law of cooperation to the conception of the state as a national sovereign.’ (at 78) And a few pages later he explains that

8 And at 298: ‘The basic conceptual conflict in international legal argument is not the one between sovereignty and bindingness, but that between one national sovereign and more national sovereigns.’

Book Reviews & Review Articles 377 _________________________________________________________________ the dynamic structure has been underpinned by the conception of the state as an international sovereign and the conception of the state as an international law subject, the latter being hierarchically superior to the former. It evolves out from international law and only recognises state freedom, including national lawmaking, as a residual solution if no international law has been made. (at 97)

The two structures are related then in that they are in a sense the opposite of each other: the basic structure advances from the national to the international, the dynamic structure from the international to the national. Each and every issue may be categorised within both structures, often with different results. (at 107)

The question then is what determines the choice between the two structures: is that choice governed by international law? Or is it governed by something else? Spiermann is of the opinion that the choice between the basic and the dynamic structure is ultimately governed by international law. The two structures form a double structure in which they are hierarchically ordered: The questions where in each structure to categorise a specific issue, and which structure to treat as the hierarchically privileged, form a pertinent and sometimes difficult task confronting, for example, the members of an international court. Categorising specific issues within the double structure may be uncertain; obviously, categorisations may also change over time. Nevertheless, it takes a distortion of international law, alienating it from national as well as international lawyers, to conclude that lawyers may choose between the two structures at will as if moving in vicious circles. (at 108)

*** The remark just quoted serves as an explicit rebuttal of the indeterminacy of international law. Indeed, perhaps one may regard Spiermann’s work at large as an attempt to formulate an answer to the charge of the critical legal studies movement that international legal rules are but empty vessels, the filling of which is an inherently political (and therewith ostensibly non-legal) task. The very title of the book, with its reference to international legal argument, brings to mind the key texts delineating the critical position in international law, in particular Martti Koskenniemi’s From Apology to Utopia: The Structure of International Legal Argument.9 The structure identified by Koskennniemi was, in essence, fairly straightforward. International law has to serve two masters at once: it has to be both concrete enough to be aligned to state practice, and normative enough to be able to 9 See Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Finnish Lawyers’ Publishing Company: Helsinki, 1989). See also David Kennedy, International Legal Structures (Nomos: Baden-Baden, 1987).

Finnish Yearbook of International Law (Vol. XV, 2004) 378 _________________________________________________________________ influence state practice. That dual task now is impossible to undertake at any single moment, and as a consequence, international legal argument cannot help but oscillate between appealing to normativity (descending arguments, in Koskenniemi’s terminology) and appealing to concreteness (ascending arguments). As choosing between the two is implausible in the absence of any further guiding principles derived from agreement on the good life, it follows that the best international law can do is defer substantive resolution elsewhere: into further interpretation, into notions of equity, or other essentially political processes. This then is a story that Spiermann (and many with him) finds hard to swallow. While it has sometimes been labelled as nihilistic,10 or lacking faith, or lacking practical relevance, few have taken the trouble to formulate a sustained answer; it is much to Spiermann’s credit that he tries. That said, the ways in which he distances himself from Koskenniemi’s work (and that of David Kennedy and others) are not always terribly convincing. One way of distancing himself is by suggesting that really, he and Koskenniemi are interested in different things: the things that Koskenniemi writes about ‘have mainly to do with the justification of international law and so not [sic] relevant to international legal argument as such.’ (at 107) But surely to distinguish between the justification for international law and specific legal argument in this way is problematic: at least if one takes Koskenniemi’s point at face value, all specific argument is eventually about the justification of international law. Spiermann may obscure things when he suggests that the work of Koskenniemi and Kennedy (and, by extension, others) is part of the critical legal studies movement ‘associated with a particular national legal system.’ (at 107) The footnote he adds, generally referring to Unger’s study of the critical legal studies movement but without further specification, is not of much help either, and it is unclear how the comment relates to the observation that Koskenniemi and Kennedy ground international legal argument ‘on the conception of the state as an international sovereign, as distinct from the conception of the state as a national sovereign’. (at 108) In short, what is clear is that somehow Spiermann sees his work as distinct from Koskenniemi’s, and aims to pick up where, he feels, Koskenniemi left off, but it never really becomes clear how exactly he envisages this. At least in part, the resulting lack of clarity may be a function of the awkward possibility that perhaps there may not be all that much space between them to begin with; the main difference (and as noted, this may not be nearly as much of a difference in the end as Spiermann would like to suggest; he downplays Koskenniemi’s own attempts to overcome nihilism) would seem to be Spiermann’s stated aim of finding international law to have some contents and relevance after all. Yet, on current evidence (and however laudable the attempt), this is asserted rather than carefully argued. That never was a fair charge to begin with, at least not in respect of Koskenniemi. One may debate the success of his attempts to move `beyond objectivism', but his attempts should defuse any charge of nihilism, as does his later work formulating a `culture of formalism'.

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Book Reviews & Review Articles 379 _________________________________________________________________ *** Historical facts are unlikely to speak for themselves; typically, any work in history aims to tell a story or defend a hypothesis about how and why things happened. Spiermann goes further though: his aim, so it would seem, is to explain the structure of international legal argument with the help of historical materials relating to a delimited period of time. That is quite a task in its own right, and may contain a paradox at its heart: by limiting himself to the interbellum, it may have become next to impossible to show that his findings, even if valid for the period under review, would be structural rather than contingent or temporary. In short, an argument about the structure of international law would have to be valid regardless of the precise period of time being studied, unless the argument would contain an explanation for a change in the structure as well. This sort of consideration is largely missing from Spiermann’s work. There are some thoughts about how the Permanent Court pioneered international law (which, charitably, could be seen as a prelude to an explanation for change from the preCourt world to the 1920s), but there is no discussion on whether findings that apply to the Permanent Court continue to be valid. The question whether the structure of international legal argument is still, in 2005, as it was in 1938, is left unaddressed; yet it is precisely that question which a structural argument could have been expected to address. If there is this methodological issue at the heart of the study (how to make an argument on structure by studying only a relatively small epoch), there are also methodological questions on issues of detail. One of those, one which confronts pretty much anyone using historical materials to make a theoretical point, 11 is whether the material is faithfully represented or whether, rather, it is placed at the service of the theoretical argument to such an extent that it would lose plausibility. Here, on occasion, Spiermann’s theoretical ambitions may have gained the upper hand. This relates in particular to his handling of the Wimbledon case, arguably the most important decision of the Permanent Court with respect to the very systematics of international law, and quite possibly the decision most central to Spiermann’s thesis. As hinted at above, he needs to distance himself from the traditional reading of the Wimbledon case as solving, at least for all practical purposes, the tension between sovereignty and the very possibility of international law; otherwise his own idea about how international law works loses whatever credibility it possesses. One way to downplay that tension (and therewith to re-appraise the decision) is to write the notion of sovereignty out of the analysis. What makes Wimbledon interesting and what turned it into an intellectual struggle for the Court, is the circumstance that it dealt with a treaty imposed on one of the parties; but if a treaty can be imposed on a party, then what does that mean with respect to sovereignty? In Spiermann’s rendition this imposition has vanished. There is no mention of the For methodological observations, see George Rodrigo Bandeira Galindo, ‘Martti Koskenniemi and the Historiographical Turn in International Law’, 16 European Journal of International Law (2005) 539-559.

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Finnish Yearbook of International Law (Vol. XV, 2004) 380 _________________________________________________________________ circumstance that Germany had little choice but to accept the Versailles Treaty; there is no indication that the Versailles Treaty was unlike most other treaties. The Wimbledon case is completely decontextualized, and has to be of course, for only this allows Spiermann to distance himself from the more generally accepted reading of Wimbledon which would render his central argument implausible. It is of course the case that historical materials never speak for themselves and will, in a sense, always be polished or retouched: it is the interpreter who decides what and how to interpret. But that is not an unlimited process, as interpreters are generally bound by background conventions and by ideas about what constitute credible arguments12: some interpretations are more plausible than others, and it would seem that a discussion of the Wimbledon case that omits the explosive circumstances surrounding the conclusion of the treaty out of which the conflict sprang, is simply not all that plausible.13 And this, in turn, casts some doubts on the viability of the central argument. *** In the end, Spiermann’s book leaves the reader somewhat in two minds. The historical bits are useful, interesting, and generally wonderfully done, and do illustrate the mini-thesis underlying them about the rise of the international judiciary and the locking in place of many of the legal institutions that are still relevant today. While that mini-thesis is never really spelled out or elaborated in any detail (Spiermann’s attention going, instead, to his more ambitious central thesis), it can nonetheless be deduced from the introductory chapter and finds ample support in the materials Spiermann has unearthed. The central argument about international legal argument, however, is difficult to grasp. It remains unclear, to this reviewer at any rate, what exactly it is that Spiermann wants to say, and how exactly international legal argument went in the Permanent Court and whether the house that Huber and others built still stands. Still, Ole Spiermann has written a memorable study. I cannot be sure that my reading of it does justice to what he intended to say,14 but I am deeply impressed by the audacity of Spiermann’s enterprise, his enormous capacity for work, and the quality of the historical work as it informs the theoretical argument. Jan Klabbers

12 See, e.g., Stanley Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (Clarendon Press: Oxford, 1989). 13 I must divulge that I have a personal interest here: it is my reading of Wimbledon that Spiermann takes issue with and (mistakenly, I think) chides as being uncritical. See Spiermann, at 181-182. 14 Then again, that is always problematic, as Pocock once observed: it is ‘next to impossible to construct any verbal statement in terms such that it could not be refuted or distorted.’ See J.G.A. Pocock, `Verbalizing a Political Act: Towards a Politics of Speech’, as reprinted in Michael Shapiro (ed.), Language and Politics (Oxford University Press, 1984) 25-43 at 25.

Book Reviews & Review Articles 381 __________________________________________________________________ CONFLICTS IN INTERNATIONAL ENVIRONMENTAL LAW. By Rüdiger Wolfrum and Nele Matz. Beiträge zum Ausländischen Öffentlichen Recht und Völkerrecht (Band 164) 2003. Springer. 213 pages. One privilege we enjoy as international lawyers is that we can approach the topic of conflicts between international treaties from a communal perspective: our frame of reference allows us to look at each international treaty as part of a larger normative order, and each treaty is regulated by the customary law of treaties. This perspective can be contrasted with that of International Relations, the discipline that has actually done most of the work in the field of treaty conflict. There, the most normatively oriented schools of thought, e.g. regime theory, have had a hard time seeing anything collective in a specific regime even where regimes are explicitly linked in a treaty. Given an increasing realisation in international environmental law and policy that we should focus more on implementing existing instruments than on creating new ones – implementation clearly highlighting conflicts – I think scholarship in our field has much to contribute to the study of treaty conflict. In this light, the topic of Wolfrum’s and Matz’s work is well chosen and represents an important contribution to the debate on the issues.1 The authors begin by identifying the causes of conflicts in international environmental regulation, more specifically, why it is so difficult to manage international environmental problems without conflicts arising between different regulatory regimes. They see several reasons for this: the interdependence of ecological systems, i.e. the regulation of one environmental problem is difficult because it has implications for other natural processes and their management; conceptual conflicts between different regulatory approaches in different treaties, e.g. an ecosystem approach versus an exploitation-oriented approach; conflicting obligations in treaties, e.g. where one treaty obligation requires different behaviour from the norm-addressee than another; conflicts in the implementation phase of the treaties, i.e. even though the aims of two agreements are compatible, their national implementation can lead to conflicts; and, lastly, political conflicts. The authors cover the main causes of conflicts in international environmental management well, illustrating each cause clearly with interesting examples. They emphasise that the categories of causes they identify are used as analytical tools but that the various causes of conflicts may easily intersect at times, making it hard to draw precise distinctions. The only cause that I think was not covered in these categories was ‘turf wars’ between the international institutions responsible for international environmental management. The authors confine the category of ‘political conflicts’ to problems that arise when the political priorities of nation1 Even though the authors have placed their names at the beginning of each chapter to indicate who is writing which Part, I will refer generally to ‘the authors’, as this is a co-authored book. Nevertheless, I think that it is useful to point out that Nele Matz has written almost three-fourths of the volume. Rüdiger Wolfrum has written the following sections: Part I, Chapter B (III), ‘The Regime Governing Polar Regions in Relation to the Law of the Sea’ and Part I, Chapter C (IV-VI), ‘Conflicts Related to the Regime on Transport and Disposal of Wastes’, ‘Disposal of Disused Offshore Installations’ and ‘The Recycling of Ships’. Two chapters - Chapters B and E of Part II, – have been jointly written.

Finnish Yearbook of International Law (Vol. XV, 2004) 382 __________________________________________________________________ states conflict with the aims of international environmental agreements. Turf wars differ from such conflicts in being instances of international institutions striving to promote their own goals even where this proves detrimental to the management of other environmental problems. The authors use the categories of conflicts they identify to analyse several international conflicts between treaties regulating dumping, the protection and management of the marine environment, the protection and management of Antarctica, the protection of biological diversity, protection against climate change and desertification, and the rules relating to transport of hazardous wastes. They examine these fields within the two broader categories of international environmental law and the law of the sea, as well as in the context of international agreements on global environmental problems. Here, the authors provide very illustrative and useful examples of how different treaties designed to protect the environment conflict with each other for a variety of reasons. The authors go on to examine the two principal approaches to managing treaty conflicts: the law of treaties and active inter-institutional co-operation. They review the rules applicable to the conflict of treaties and quite rightly point out the problems in this area of international law. Perhaps the principal shortcoming they identify is that international law does not provide much guidance on how treaty conflicts are to be resolved unless treaties themselves include specific rules for the purpose. The authors also emphasise the potential of interpretation in avoiding treaty conflicts. They take up dynamic treaty interpretation as outlined by the International Court of Justice (ICJ) in its report on Namibia, which provides that treaties are allowed to change over time and in accordance with relevant rules of international law. Here, I would like to have seen at least a reference to the ICJ decision in the Case Concerning the Gabcíkovo-Nagymaros Project2, the main ‘environmental’ case decided by the Court and a decision in which the Court sets out arguments for dynamic treaty interpretation in the ‘environmental’ context. The authors proceed to analyse existing international processes for actively managing treaty conflicts. The discussion focuses mainly on the universal level and primarily on the work of the United Nations Environment Programme (UNEP) and the Commission on Sustainable Development. The research here is very well done and covers all of the institutional co-operation processes that have sought to coordinate the functions of the various agencies involved in environmental protection. The main international institution dealing with the issue of treaty conflicts in international environmental law is the UN, more specifically, its environmental programme, UNEP, and the authors review the various attempts to co-ordinate treaty conflicts within that programme, which are numerous. However, the reader is left with a nagging feeling that the authors’ optimism regarding these institutional co-ordination exercises might very well be unfounded: there seems to be a need for new management processes to co-ordinate processes that themselves were designed to co-ordinate international environmental treaties. In my view, one can see in this Case Concerning Gabcikovo-Nagymaros Project (Hungary v. Slovakia), ICJ Reports (1997), especially paragraphs 112, 140 and 141.

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Book Reviews & Review Articles 383 __________________________________________________________________ chapter the result of the authors not identifying turf wars between different agencies as one of the major causes of treaty conflicts; they seem to be too optimistic about the prospects of institutional co-ordination providing improvements in the future. On the other hand, in their final recommendations (Chapter E), the authors do caution against embracing this generally optimistic approach towards institutional co-operation. The authors would have done well to take up an example of a set of international environmental treaties that are actively and well co-ordinated within an existing international, albeit regional, environmental process. One such case is the five environmental treaties negotiated and now actively governed by the United Nations Economic Commission for Europe (UN ECE), whose membership includes 55 states spanning North America, Europe and Central Asia. The regime includes an ongoing review of possible overlaps between the five treaties and ways to mitigate the negative consequences of any overlaps. This regional model could have also been cited as an ideal model to be followed on the universal level in the future. In their concluding chapter, the authors provide recommendations that draw on the case studies they have conducted, the relevant law of treaties, and the possibilities available in inter-institutional co-operation. These recommendations are very balanced analytic attempts to introduce at least some improvements in this comparatively undeveloped area of international law and co-operation. The authors first emphasise the need to take up the issue of possible treaty conflict already in the negotiation phase of any treaty or soft-law making process. They also recommend a reform of the law of treaties with respect to treaty conflicts, an improvement that may be more easily recommended than implemented. Finally, they take up the role of UNEP as the primary institution with the expertise and potential for coordinating international environmental treaties. The authors take the very realistic view that UNEP as it presently stands cannot be developed into an international organisation that would administer all environmental treaties. However, they do introduce the interesting question of whether the existing organisations and institutions would be willing to agree on having a new institution, attached to UNEP, that would have co-ordinating functions related to international environmental agreements. The book is a very compact (213 pages) and very well-argued analytical approach to the topic, providing interesting illustrations of treaty conflicts as well as very balanced recommendations drawing on the cases and approaches studied as to how treaty conflicts could be better managed. However, the work would have benefited from a general introduction covering its two component parts: Part I, ‘Conflicts between Environmental Agreements’ and Part II, ‘Approaches to the Coordination of International Environmental Agreements’. Each part has an introduction of its own but there is no introduction to the book as a whole. The reader is thus not informed in the beginning of the book e.g. that it contains recommendations on how to manage treaty conflicts in the future; these recommendations are not mentioned even in the table of contents, as the final chapter of the book is entitled ‘Conclusions and Outlook’.

Finnish Yearbook of International Law (Vol. XV, 2004) 384 __________________________________________________________________ The authors could also have paid more attention to the introduction to Part I in order to give the reader a clearer picture of the aim of that section of the book. The introduction merely states that Part I studies the conflicts between treaties regulating different issue areas; it does not point out that the authors will study these treaty conflicts on the basis of the analytical categories they have defined, although this aim is mentioned later, on page 12. In addition, because of the concise nature of this introduction and the lack of a general introduction to the book, the reader is told only very briefly how the conflicts are understood in the book. There is no explanation why only treaty conflicts are studied when the title of the book is ‘Conflicts in International Environmental Law’. At least I expected a more general introductory chapter setting out the basic concepts and approaches chosen in the study. In all, the book is clearly an important contribution to what has generally been an overlooked area of research, especially in international environmental law studies. The authors research the focal areas with care and provide very balanced and wellargued recommendations. The book is a very compact, easily readable, and wellstructured work, although, as pointed out above, the authors could have provided the reader with more assistance in following their arguments. The book’s greatest merits are perhaps its very interesting and practical illustrations of actual and potential treaty conflicts and its very well-grounded recommendations on how to manage treaty conflicts better in the future. Timo Koivurova

THE DARK SIDES OF VIRTUE. REASSESSING INTERNATIONAL HUMANITARIANISM. By David Kennedy. Princeton University Press, Princeton and Oxford, 2004. ISBN: 0-691-11686-5. 368 pages. I do not open Professor David Kennedy’s1 new book the same way I would open just any book sent by a publisher for review in an academic journal: with a mixture of curiosity, healthy scepticism - and very much aware of how many pages there are still left to read. With The Dark Sides of Virtue, it is all the familiar sentiments but also a feeling of being on a mission: I am quite consciously seeking answers to questions relating to my own identity as an international humanitarian. As someone grown interested in David Kennedy’s work only during the past couple of years, his new book comes on my path at a point in life when I find myself reconsidering my relationship with the international human rights movement; wondering whether it is acceptable to believe in the objectives of the humanitarian mission, while simultaneously questioning the means it uses and the processes through which humanitarian goals are sought; the language, the frame of reference, the worldview 1 The author of the book is the Henry Shattuck Professor of International Law at the Harvard Law School.

Book Reviews & Review Articles 385 __________________________________________________________________ that seems to paint everything either black or white. The most serious of my concerns is whether expressing scepticism is already a human rights violation in itself.2 While I see plenty of good in human rights as an aspiration, I have problems placing my faith in the current language of international humanitarianism. At the same time, however, I am ashamed of my own lack of belief, feeling awkward about my own role, and looking for tools to address my own uneasiness. Before embarking on a more detailed exploration of the ideas and thoughts stimulated by The Dark Sides of Virtue, I wish to state my overall conclusion: for anyone with questions and concerns similar to my own, Professor Kennedy’s new book is much-recommended reading. The book consists of nine Chapters relating to what Kennedy defines as ‘international humanitarianism’: an umbrella concept that he uses to refer: very generally to people who aspire to make the world more just, to the projects they have launched over the past century in pursuit of that goal, and to the professional vocabularies which have sprung up to defend and elaborate these projects. (at 236)

The objective of the book is thus to discuss ‘international humanitarianism’ at large, in the same way as Kennedy has earlier discussed international law as a ‘group of people sharing professional tools and expertise, as well as a sensibility, viewpoint, and mission’.3 What we are now exploring are the sensibility and mission of the international humanitarians. As most of the Chapters in this book have been published earlier, during the past almost 20 years, the question arises whether there has been any value added by putting these works together. Is there a reason to publish updated versions of them at this point in time? The Dark Sides of Virtue begins with an exploration of the international human rights movement (‘The International Human Rights Movement: Part of the Problem?), in which the author expresses his concerns and worries about whether ‘the human rights idea and movement themselves are causing harm’ (at 8). The main idea is this: the objectives that we believe to be good are not necessarily good when implemented in practice: It is not that our good works have sometimes been overcome by dark forces – it is that our good work, however principled, however savvy, has itself also had dark sides, has contributed to the very evils we set to redress. (at 342)

2 Or, as Douzinas has argued, when tackling similar questions, ‘for many, to question human rights is to side with the inhuman, the anti-human and the evil.’ See Costas Douzinas, The End of Human Rights (Hart Publishing: Oxford and Portland, Oregon, 2000) at 8. For further discussion, see also my own Particularity as Universality. The Politics of Human Rights in the European Union (The Erik Castrén Institute Research reports 15/2005: Helsinki, 2005) esp. at 31-37. 3 See David Kennedy, ‘My Talk at the ASIL: What Is New Thinking in International Law?’ 94 Proceedings of the American Society of International Law (2000) 104 at 104.

Finnish Yearbook of International Law (Vol. XV, 2004) 386 __________________________________________________________________ No matter how hard we try to do good, sometimes our intentions create bad outcomes. The mission that legitimates itself with reference to humanitarian objectives is no exception; however, it often escapes closer scrutiny, thanks to the noble intentions laying underneath. Therefore, Kennedy argues, even the humanitarian mission should be placed under scrutiny: As a profession, we would do ourselves good by opening conversation about worries of this sort, and thinking further about how they should affect our understanding of the human rights project as a whole.(at 35)

What, however, still remains somewhat unclear for this reader is Kennedy’s relationship with the criticism he is presenting, and its objective: does he consider himself part of the international human rights movement; is he ‘inside’ or ‘outside’ the discussion? Is he one of ‘them’ or is he not? Chapters 2 (‘Spring Break: The Activist Individual’) and 3 (‘Autumn Weekend: The Activist Community) seem to be there to explain the author’s own identity: they define David Kennedy as a human rights activist who is not only sitting in his chambers in Cambridge, Massachusetts, but also participates in field work. Therefore, I believe, the reflections that follow are not to be seen only as criticism but also as self-criticism: the book aims at inspiring a discussion, and encouraging Kennedy himself as well as others to question their own methods of functioning. When originally published, in addition to the personal quest presented, these papers also represented a remarkable methodological innovation that profoundly influenced many young scholars. At the request of the original publishers of the ‘Spring Break’, Kennedy also wrote an appendix to his piece, elaborating on some of the methodological objectives of his article, and providing further references.4 In the appendix, Kennedy described his views on indeterminacy and determinacy, clarifying that his original motivation for writing the ‘Spring Break’ was to challenge the way in which ‘indeterminacy’ was asserted as an attack on the normative discourse of liberalism. Demonstrating indeterminacy through an interplay of openness and closure was, however, not enough. Instead, Kennedy attempted to go one step further and show the difficulties involved in choosing between a rationalist indeterminacy analysis and a full-scale deconstructive operation. While Kennedy’s appendix has not been included in the current book (and perhaps sadly so, because not all things obvious to the author are equally obvious to the reader – or at least the number of sufficiently enlightened readers may be unduly limited), it provides the background against which one ought to read the concluding section of the book which is now being reviewed. In observing ‘the shift to governance by experts,’ Kennedy underlines the indeterminacy of the language of decision-making, but does not stop there. Due to its indeterminacy, this language, the language of experts, brings with it a structural bias underlining the power of these experts. And as the results of any process of deliberation are determined by those who have the power

4

Published in 63 Texas Law Review (1984-1985) 1417-1423.

Book Reviews & Review Articles 387 __________________________________________________________________ to take decisions, as Kennedy reminds us, this power is something that ought to be exercised with responsibility, care and awareness of its political consequences. Chapter 4 (‘Humanitarian Policy Making: Pragmatism without Politics?’) is a strong section arguing that the idea of professional knowledge as something politically dispassionate should be rejected because international governance is not ‘outside’ but ‘inside’ policy-making. As such it is not neutral and cannot be justified with reference to the politically dispassionate character of professional knowledge. International governance is about making political choices, because it ‘distributes, makes some outcomes more likely and some less’ (at 125). Kennedy thus challenges us to question the outcomes of the choices made: Where the results are humanitarian, we should applaud, and where they are not, we should contest them. Doing so places us in the process, governing, ruling, no longer standing outside lamenting its ‘capture’. (at 125)

Instead of being an independent non-political venture, humanitarian policy should be regarded as a part of foreign policy. This brings with it the need to discuss, debate and contest different alternatives. Chapter 6 (‘Bringing Market Democracy to Eastern and Central Europe’) is one that I am perhaps most familiar with.5 Its special value, especially considering that it was originally published already in the spring of 1991, is in the foresight it offers to what kind of patterns the market reforms promoted by the European Economic Community (‘EEC’), and later its successors, the European Community (‘EC’) and the European Union (‘EU’), would lead to. After 1989, new criteria of legitimate governance were introduced with human rights at the core. For Kennedy, 1989 was treated as the great break; an opportunity for renewal. And indeed, for a short time after 1989 ‘Europe seemed […] to stand for human rights, for multilateralism, for the soft peace of open markets, and for a foreign policy of benign humanitarianism’ (at 170). But the idea of a break fits ill with the idea of continuity within the Community, which treated 1992 as a symbol of the process of European integration that was launched after World War II. Conflict was only believed to take place outside the Community; the process in Western Europe was not to be hindered by the events in the Central and Eastern European States. Therefore, Kennedy writes, the ‘humanitarian project would require an intense effort to speed the East forward without slowing process in the West’ (at 173). But while in reality there would have been multiple paths of legal reform that the Eastern European countries could have chosen, after 1989 it seemed that their options were limited to one: ‘free trade for the East, industrial policy for the West’. This approach did away with the need to assess and contest the components of the regime and its distributional consequences. In fact, no analysis of policy alternatives was possible (at 175-176, 196-197). The idea of political contestation was equally lost within the Community, which had a ‘political culture with a technocratic and 5 On a related topic, see also David Kennedy and David E. Webb, ‘The Limits of Integration: Eastern Europe and the European Communities’, 30 Common Market Law Review (1993) 1095-1117.

Finnish Yearbook of International Law (Vol. XV, 2004) 388 __________________________________________________________________ legal face, in which politics is treated as having somehow already happened elsewhere – in the Treaty, or the European Summit, or in the Member States, or in the Council’. While there have been attempts to reform the system, ‘waves of institutional reform aimed to cure the problem have only confirmed the transformation of political struggle into a process of technocratic management’ (at 183). This is, of course, equally true of the EU of today, where reform is not really about reform, but about re-describing the old setting in a new language.6 In relation to the Central and Eastern European States, the paradox thus was this (at 184): Deviant neighbours, who must ‘democratize’ before being considered for participation, face a European Union which has transcended the necessity for democratic self-organization, replacing democratic institutions with the rhetoric of continuing democratization.

Much of what Kennedy writes has in fact been proven correct during the 13 years that have followed the publication of this article, underlining the merits of Kennedy’s work. However, to be honest, I perhaps preferred the paper in its original form: with the up-dates inserted for the purpose of publishing the article in this book, it has perhaps lost some of its earlier focus. Moreover, it is in this Chapter that I found some of the issues that I disagreed most strongly with, to which I will return later. Chapter 7 (‘The International Protection of Refugees’) is the only one of the original papers that I had not read before, but when studying it now, it suddenly turns into a great favourite. Here Kennedy argues that the careful analyses made by the humanitarian policy makers at the United Nations High Commission for Refugees (UNHCR) that he met in 1984, avoided the difficult topics concerning the causes and consequences of refugee flows, and treated the strengthening of the UNHCR as an objective in itself. In this Chapter, Kennedy shows through a study of arguments how, at the end of the day, the one great loser in the process is the refugee - the rights of whom the process was initially meant to protect; how the choice of terms, conditions, or definitions affects the range of available solutions. While the status of refugees is generally acknowledged as something of a weak spot in realising the general objective of an ever higher standard of international human rights protection, I have seldom seen the matter demonstrated so convincingly. According to Kennedy, too much emphasis is based on defining terms that do not really address any of the real problems. As a consequence, asylum becomes an issue for policy-making expertise, not for refugees. At the same time, however, the chapter on refugees makes the reader long for a similar chapter on human rights: many of the strong concerns and arguments that Kennedy presents in Chapter 1 are simply declared without being really discussed or demonstrated. It is not that I would necessarily object to those concerns; it is just that arguments tend to sound more convincing if the one making them also demonstrates why this is so by 6 For further discussion, see Päivi Leino, ‘Particularity as Universality: The Politics of Human Rights in the European Union’ in this volume.

Book Reviews & Review Articles 389 __________________________________________________________________ engaging in arguments and counter-arguments. This is something that is seldom done as brilliantly as Kennedy does in Chapter 7 – and seldom left so completely undone as he does in Chapter 1. For this reader, the most puzzling part of Kennedy’s book is Chapter 8 (‘Humanitarianism and Force’). There is no doubt that the Chapter makes various insightful arguments based on the looseness of international humanitarian law (which has also been demonstrated by others). Kennedy argues that the ‘modern law of force offers a vocabulary for disputation, rather than an external point of judgment.’ (at 266). The languages of the humanitarian and the military are increasingly converging: ‘The strategic choices faced by humanitarian policy makers struggling to promote their vocabulary are strikingly similar to those faced by military planners.’ But while there is a ‘vocabulary for judging the long-term military objective’ – the justifications for the use of force included in the Charter of the United Nations – ‘there is no similar vocabulary for judging the longer-term humanitarian objective – nothing to weigh against humanitarian institutions and ideas.’ (280) As a result, ‘humanitarians and military planners are divided by a common language’: ‘We can hear the voice of victory and the voice of virtue.’ (282) Kennedy returns to this in the final Chapter of the book (‘Humanitarian Power’) in which he offers a number of visions for what international humanitarianism should become. Kennedy calls on us to think of international humanitarianism as being located inside power, ‘speaking to power and as power’ (at 343). The need for renewal is apparent in the tension between the two voices – the ‘voice of principle, of rules, of the traditional law, of ethical commitment, of rights’ and a ‘voice of strategy, of standards, cost-benefit calculations, and shrewd participation in statecraft’ (at 343). According to Kennedy, these two voices exist even within international humanitarianism. What is needed is the understanding that these voices and arguments are components of a political struggle, which is attached to the exercise of power and the uncertainty over truth. Then humanitarianism becomes a ‘network for criticizing the pretences of justice’ and an acknowledgement of the fact that we do not know what is right or correct (at 353-354). However, one cannot leave unmentioned the part of Chapter 8 that is clearly the most troublesome part of the whole book. I have read and re-read this part, trying to conceive it (and especially the section on ‘Humanitarianism in the War Machine’ in which Kennedy describes his experiences onboard the aircraft carrier USS Independence in the Gulf) as something else than praise for the US military force. But for a girl who has never been interested in the wonders of war machinery, this proves to be an impossible task, especially as the book, quite naturally perhaps, conveys a positive and quite ‘pro-American’ picture of the US military. In short, it is difficult to make a distinction between what seems to be a boyish fascination with weaponry (something that always seems odd for a girl) and between Kennedy’s own political convictions. Kennedy starts by arguing how ‘[i]t is not exaggerating to say that in the American military today no ship moves, no weapon is fired, no target selected without review for compliance with regulations. But it is more than that.’ (at 285) For Kennedy,

Finnish Yearbook of International Law (Vol. XV, 2004) 390 __________________________________________________________________ there is no question that international legal norms have been metabolized into the U.S. Navy patrolling the Gulf. Of course, it is not all submission and rule. There is opportunity for individual judgment and leadership, error, and even rebellion. (at 289)

Still, Kennedy goes on to argue that ‘the actions of the U.S. Navy in the Persian Gulf suggest what war would look like were humanitarian policy making fully successful’ (at 296). While the beginning of the Chapter emphasised the looseness of the humanitarian language, here Kennedy seems to be talking about something else: he is not only concerned about our ability to speak the humanitarian language, but also about humanitarian objectives (however imprecise); concerns that Kennedy seems to declare the US army most willing to uphold. Of course, this book was written before the US intervention in Iraq in 2003 – and it is perhaps fair to say that the world has learned something from that experience. Post-Iraq, and especially after the scandals involving the treatment of prisoners in Abu Ghraib and Guantanamo Bay by the US military, these sections make less than convincing reading.7 This impression was not improved by news headlines during the time I was reading the book, describing how Iraqi ‘ghost detainees’ had been moved around in order to hide them from a visiting Red Cross survey team and routinely kept unregistered.8 While Kennedy’s argument about the great intermixing of the two languages is intriguing, and probably correct, I would have been much more impressed by the Chapter had I been saved from Kennedy’s apparent praise to the US military in today’s world in which its merits really seem quite limited. Professor Kennedy’s style of writing has changed over the years. While his early work is heavily footnoted, with notes taking up entire pages, his more recent works are written following a more personal style. For those that like his current style of writing, it probably appears as essayistic and light; free from the heavy footnote apparatus generally attached to academic writing. For those that do not like it, it is the very same characteristics that lead to the negative impression. It is true that occasionally it is difficult to treat The Dark Sides of Virtue as genuinely ‘academic’: it is more like a collection of ‘enlightened essays’, presenting the author’s impressions and reflections, thus without any apparent need to back them up by presenting solid evidence – perhaps justified with the assumption that the author’s merits are a sufficient guarantee for the accuracy of the information presented. If this indeed is the case, then this cannot but give a slightly arrogant impression, even 7 See e.g. ‘Iraq abuse “ordered from the top”’, BBC news world edition 15 June 2004, visited on 16 September 2004, available at . For a recent discussion of the effect of the war on terrorism on the implementation of the Geneva Conventions, see Philippe Sands, Lawless World. America and the Making and Breaking of Global Rules (Allen Lane / Penguin Books: London, 2005) esp. at 143-173. 8 See ‘Jailed Iraqis hidden from Red Cross, says US army’, The Guardian, Special Report on Iraq of 5 May 2004, visited on 8 October 2004, available at <www.guardian.co.uk/Iraq/Story/ 0,2763,1209681,00.html> ; ‘Rumsfeld ordered prisoner held off the books. Iraqi terror suspect hidden from International Red Cross’, 16 June 2004, last visited 8 October 2004, available at <www.msnbc.msn.com/id/5226957/>.

Book Reviews & Review Articles 391 __________________________________________________________________ when the general tone of writing seems genuine and even humble. It is true that for example Chapters 2 (‘Spring Break: The Activist Individual’) and 3 (‘Autumn Weekend: The Activist Community’) are very much essays to their style, which seems to justify the lack of any footnotes: they offer personal reflections, and should be judged as such. But footnotes can be used for different purposes, and the backing-up of arguments to give them authority is but one of them. In other cases using references could be fair to other authors: at some points I note that Kennedy makes arguments that to my knowledge have also been made by others, and I wonder who should be given credit for making them first. At other points references might contribute to further sharpening the criticism: to name one example, Kennedy criticises ‘rule of law literature’ (at 157), but gives no examples of such literature. Moreover, as the Chapters follow different styles, they are technically uneven. There are even some internal discrepancies within the chapters. For example, Chapter 7 is generally more ‘academic’ in its style and includes footnotes to old documents, but in those respects that the paper has been updated, references to new documents are missing (cf at 206, 212, 216). As a result of Kennedy’s essayistic style his arguments also remain quite general and are thus hard to contradict. For example, in ‘Pragmatism without Politics’ Kennedy criticizes humanitarian policy makers for their settled expectations. But I repeatedly wonder what actual projects and problems Kennedy is writing about. It is commonly accepted that one should always attempt to present the object of one’s criticism at its strongest – but what if the object is presented so vaguely that it remains quite unclear what exactly is being criticized? It is clear that Kennedy is describing patterns, tendencies and attitudes; and that such patterns indeed exist and should be criticized is indeed not at doubt. But his writing is so general and unspecified that also his observations seem superficial: When the object of one’s concerns remains abstract, then, ironically, even the concerns themselves remain equally abstract. There is, however, one point where I clearly disagree with Kennedy, and that is when he describes the European Free Trade Area (EFTA) states and the arrangements they had with the EEC (at 194). As is widely known the EEC concluded in 1972-73 bilateral industrial free trade agreements with Austria, Finland, Iceland, Norway, Portugal, Sweden, and Switzerland, but the attractiveness of the arrangement weakened greatly when, in 1985, the Community launched its Single Market programme.9 The idea of an European Economic Area (EEA, which Kennedy calls the European Economic Space, EES) was introduced in 1989, with the objective of incorporating the EFTA countries into the Single Market (through implementing ‘the four freedoms,’ the free movement of goods, persons, services and capital), an arrangement that finally entered into force in January 1994. The idea was a

9 For a brief overview, see e.g. Sir William Nicoll and Trevor C. Salmon, Understanding the European Union (Longman / Pearson Education: Dorchester, 2001) 206-207.

Finnish Yearbook of International Law (Vol. XV, 2004) 392 __________________________________________________________________ continuous and permanent process of consultation and information during all the stages of the preparation of Community acts, the aim of which is to facilitate the adoption at EEA level of new Community legislation.10

Kennedy highlights the flexibility and other positive aspects of the EEA arrangement in order to criticise the approach that the EU, applied to the former communist countries in Central and Eastern Europe, discouraging them from pursuing their own reforms independently but simply adopting EC legislation as it stood. However, the setting, as presented by Kennedy, is inaccurate. While there were calls to include also the Central and Eastern European States in the EEA in order to enable them to prepare for full membership,11 this alternative was never offered them. There seemed to be good grounds for the differentiated treatment 12 – including the reluctance of the Central and Eastern European States themselves, and their fear that ‘any intermediate agreement between an E[urope] A[greement] and an Act of Accession would serve as an “anti-chambre” with no definite time limit’.13 In other words, while there is no doubt that the negotiation settings and arrangements later offered to the Central and Eastern European States were problematic, it might be misguided to use the EFTA states as an example of good EU practice. Kennedy gives the impression that the EC and EFTA states cooperated as equals, illustrated by the participation of the EFTA states in the development of the EU’s internal market regulatory structure and common policies (at 194-195). From the perspective of the former EFTA states, however, the arrangement was not functioning well.14 The EEA initially required its members to adopt the acquis, i.e. thirty years of Community legislation, and once the arrangement became operational, the EEA countries had very little influence on the new EC regulations that they were obliged to adopt. 15 Against this background, it would Council Press Release 5944/92 of 2 May 1992. See e.g. Steve Peers, ‘An Ever Closer Waiting Room?: The Case for Eastern European Accession to the European Economic Area’, 32 Common Market Law Review (1995) 187-213 at 189, 211. 12 There were many reasons for this, a central one being that EFTA states all had very developed economies and a high level of prosperity, both of which were missing in the Central and Eastern European States. The arrangements offered to the Western European states included from the perspective of the Central and Eastern European States ‘all the wrong bits’ like the internal market, which they were not ready to implement, and excluded the membership bits, which the EFTA states were at that stage not interested in. As Kennedy himself quotes at 175, what sense would it make to offer a Mercedes to someone not yet able to drive a Fiat? 13 Marc Maresceau and Elisabetta Montaguti, ‘The Relations between the European Union and Central and Eastern Europe: A Legal Appraisal’, 32 Common Market Law Review (1995) 1327-1367 at 1337. 14 For example, the risks of marginalization and satellization made them adjust their own regimes after the EEC directives and regulations, which constituted a difficult dilemma for those that did not aspire closer integration with the EEC. See Philippe G. Nell, ‘EFTA in the 1990s: The Search for a New Identity’, XXVIII Journal of Common Market Studies (1990) 328-358 at 352. 15 Nicoll and Salmon, Understanding the European Union, supra note 9, 207. While the EEA arrangement included institutions to guarantee the incorporation of EC legislation by the EEA states, this was more or less a ‘take it or leave it’ type of consultation process – especially when compared with the EEA 10 11

Book Reviews & Review Articles 393 __________________________________________________________________ seem quite incorrect to treat the EC and EEA states as equals in the process. This is also why most EEA states left the arrangement in order to join the EU only a couple of years later16 – after all, this guaranteed them a full voice in the development of the system and a seat at the negotiating table. The point I wish to make here is this: even though the EFTA/EEA states were not quite as excluded from the EC/EU decision-making as the Central and Eastern European States were, the role allocated to them was so insignificant that it does not really convincingly demonstrate Kennedy’s point – this said without in any way objecting to the criticisms that Kennedy has concerning the EU’s approach to the latter. 17 While the issue at hand (the functioning of the EEA and EFTA arrangements) perhaps concerns a rather minor point in Kennedy’s book, it serves to demonstrate a more major concern that I have – namely that it is tempting to reject the more general and fundamentally important arguments that Kennedy makes if sufficient attention and care is not given to handling minor details, as well. On the whole then, did the book give answers to the questions that this reader had in mind? I feel that I received less answers than a general direction. David Kennedy’s answer seemed to be that questioning humanitarianism is ok; in fact, questioning makes human rights stronger. What is more, Kennedy seems to say that questioning is in no way incompatible with the belief that ‘the international human rights movement has done a great deal of good.’ (at 3). This is especially important keeping in mind that the international human rights movement is not generally very good at self-criticism – instead, it seems to believe that more human rights, more monitoring agencies can never do any harm; the word ‘human rights’ can never be said too often. Similarly, the human rights movement has generally treated politics as threatening and something that should not intrude in the sphere of human rights law. After all, decision-making in the human rights committees, courts and panels convening in New York, Geneva and Strasbourg – which can be seen as true ‘governance by experts,’ is greeted and presented as ‘neutral’, as if it involved no political deliberation or political choices. Kennedy’s solution lies in not trying to exclude politics, but in understanding the political implications of, and responsibility attached to, international humanitarianism. There is not enough discussion and analysis of alternative (and perhaps equally ‘humanitarian’) solutions and there is not enough room for political contestation, because humanitarian objectives are believed to be unequivocally good and thus escape the need for debate that should always be at heart of any endeavour states’ original objective of having a seat in the Council, which would have given them a stronger voice in the law-making process. 16 Switzerland is still within the EFTA arrangement; Norway and Iceland in the EEA. Austria, Finland, Portugal and Sweden have joined the EU. 17 However, a comparison between the EFTA/EEA states and the Central and Eastern European states might support Kennedy’s argument in case one would only observe their membership processes. While the latter were placed under membership criteria and years of monitoring, enlargement to the former was ‘swift, smooth and […] relatively painless’ due to their EEA membership, their relative and balanced prosperity and medium size. See Dierk Booss and John Forman, ’Enlargement: Legal and Procedural Aspects’, 32 Common Market Law Review (1995) 95-130 at 95, 129.

Finnish Yearbook of International Law (Vol. XV, 2004) 394 __________________________________________________________________ inspired by democratic principles. One can only hope that in one way or the other, The Dark Sides of Virtue could be perceived as constructive criticism and thus have an effect on the international human rights movement – quite a challenge considering that Kennedy’s earlier work has hardly addressed and spoken to the human rights advocates in their own language. In this sense, I fear, Kennedy might still be placed ‘outside’ the discussion. Still, the greatest value of The Dark Sides of Virtue lies in its role as opening a discussion, as an invitation to ‘think outside the box’. As such, the book is muchneeded and very welcome. Days after I had finished reading the book, I found myself thinking about it. I needed to return to The Dark Sides of Virtue, read sections of it again, reflecting, taking distance and returning to it again. While I was not always quite sure whether I agreed with its author, or whether Kennedy actually meant what I thought he meant, at the end of the day this did not matter. If a good book is meant to make you think things over from your own personal angle (instead of feeding you with ready-thought solutions) then this indeed is a good book – which is not a surprise, as Kennedy has always been good at inspiring discussion: If you find yourself with an exiting project of criticism and innovation or if you see the light on far off some road and think something great might be going on, call me. I’ve got my dancing shoes polished, and I’d love to come along.18

When international humanitarianism is treated as a political exercise, we see that it is in an equal need of political contestation as any other field of politics. If the human rights project is strong, well-justified and serves its noble purposes correctly, then it is likely to survive the attack, become stronger and continue its mission. This kind of re-examination should be an on-going process. If international humanitarianism does not, however, survive discussion, then it is not worthy of its position, and the time is probably ripe for it to be replaced. Päivi Leino

David Kennedy, ‘When Renewal Repeats: Thinking against the Box’, 32 New York University Journal of International Law and Politics (1999-2000) 335, 500.

18

Book Reviews & Review Articles 395 __________________________________________________________________ A NEW WORLD ORDER. By Anne-Marie Slaughter. Princeton University Press, 2004. ISBN: 0691123977. 368 pages; THE NEW MANDARINS OF AMERICAN POWER. THE BUSH ADMINISTRATION’S PLANS FOR THE WORLD. By Alex Callinicos. Polity Press, 2003. ISBN: 0745632742. 176 pages; THE UNITED STATES AND THE RULE OF LAW IN INTERNATIONAL AFFAIRS. By John F. Murphy. Cambridge University Press, 2004. ISBN: 0521822564. 378 pages; D.C. CONFIDENTIAL. By Christopher Meyer. Weidenfeld & Nicolson, 2005. ISBN: 0297851144. 288 pages.

WHAT IS TO BE DONE, WHO IS TO DO IT? Three Plans Malcolm Bull, in a discussion of Hardt and Negri, remarks on an apparent gap in contemporary reformist and radical thought: …there are a lot of questions to which there are many possible answers, and one question to which there is none. There are innumerable blueprints for utopian futures that are, in varying degree, egalitarian, cosmopolitan, ecologically sustainable, and locally responsive, but no solution to the most intractable problem of all: who is going to make it happen.1

The books under review here reverse this equation. In her important and, likely to be, influential, new book, Anne-Marie Slaughter is unabashed about naming the potential reformers. Government networks of regulators, legislators and judges will make it happen. They will do it by harmonising, converging, and cooperating. They will form networks of networks. These will be linked vertically, horizontally and laterally through inter-governmental bureaux and secretariats, through informal agreements, through treaties and through concerts of powerful actors. This is the New World Order, but one created not by fiat (á la George Bush Senior’s New World Order of 1991, following the UN-authorised expulsion of Iraqi forces from Kuwait) but by stealth. Put unkindly, this new world order advocates a sort of rule by committee or, phrased more generously, a realistic utopia. It is clear that these networks can make it happen. What is it that will be made to happen, though? It is, perhaps, a weakness of this book, that I cannot find a clear answer. The two other books are no better in this regard, though. Alex Callinicos’s is a passionate and muscular indictment of American imperialism but entirely lacks a prescription for change. Instead, what we have is a depressingly unconvincing reference to the ‘gigantic international movement’ that opposed the Iraq War. What that movement ought to do and how it might be re-mobilised is not discussed. John F. Murphy,

1

Malcolm Bull, ‘The Limits of Multitude’, 35 New Left Review (September-October 2005) 19.

Finnish Yearbook of International Law (Vol. XV, 2004) 396 __________________________________________________________________ meanwhile, in an intelligent and doctrinally impressive book, is left hoping for a revival of the rule of law (assumed as a good) through renewed U.S leadership.2 Know them by their dust-cover blurbs. In Slaughter’s case, we have encomiums from the Prime Minister of Canada, the former U.S. Secretary of State, George Shultz and from Fareed Zakaria, editor of Newsweek International. These quotes announce Slaughter’s proximity to power, and promise a magic alchemy of intellectual vision and practical relevance. Here is a book about international law that prefers to break out of that field altogether (no international lawyer appears on the back-cover). Slaughter is a public intellectual who happens to be an international lawyer. The New Mandarins of American Power, meanwhile, prides itself in a rebellious distance from power. The recommendations come from Noam Chomsky (the title is borrowed from him, after all) and John Pilger, the unreconstructed Left’s evergreen poster-boys. This book contains powerful analysis, but the point is to criticise and change not simply to philosophise. We can expect the enemy to be identified and named. John Murphy’s book occupies a sort of middle-position (though closer to Slaughter in style and inclination, one suspects). Here is a sober account of international law, nodding to Slaughter’s networks and transgovernmentalism but firmly embedded in a more traditional style of international law scholarship concerned with states and ‘sources’. But the book, like Callinicos’s, is about the United States and its relationship to the rule of law and international society. Unlike The New Mandarins, this is no searing indictment of high-level fraud but instead a self-consciously balanced assessment of America’s engagement with international law (applauded for its legalism in some areas, scolded for its unilateralism in others). Accordingly, the recommendations all come from respected lawyers. If Callinicos offers ‘eloquent warnings’, and Slaughter ‘vision’ and ‘ingenuity’ then Murphy’s book is ‘free of polemic’ and ‘objective’. Know them also by their cover designs. Murphy and Callinicos each feature photographs of President Bush. In Murphy’s, Bush is speaking at the United Nations. Sitting above him as he speaks is Kofi Annan. On one hand, the image seems to be saying: ‘American power constrained by multi-lateral institutionalism’. But this effect is diminished by the blurriness of Annan’s image and the detached look on the Secretary-General’s face. Bush is all clarity and action, the head of the United Nations is pensive, passive and worried: soft multilateralism’s anxieties in the face of raw power? Callinicos, meanwhile, has the leading figures of the Bush Administration (Bush, Cheney, Rumsfeld and Rice) poring over documents. These papers perhaps contain their ‘Plans for the World’ as the old-fashioned sub-title of the book has it. But if these two books are about predatory executive government (Callinicos) and the unequal struggle between the hegemon and the rule of law (Murphy), Slaughter’s book has no truck with these sorts of images of international 2 The rule of law is subject to no critical analysis at all. There is a quote from Morton Horowitz on the first page dissecting the rule of law (‘...it ratifies and legitimates an adversarial, competitive and atomistic conception of legal relations’) but this followed by Murphy saying ‘For my part I join the nearly universal support for the rule of law as an ideal, even if the ideal, is seldom realised in practice’ (at 1). For a book about the rule of law, and given the critical and neo-conservative assaults on the rule of law over the past two decades, more is required here.

Book Reviews & Review Articles 397 __________________________________________________________________ politics. What Bush does or doesn’t do is far from central to Slaughter’s thesis. Her world is not planned by men in dark rooms nor is it a struggle between isolationists and multilateralists, instead, this is a world of global law, of criss-crossing, intersecting levels of legality and governance. There is no there, there. There is everywhere. Her cover is a globe enclosed in circles. Weber once wrote: ‘Politics is a strong and slow boring of hard boards. It takes both passion and perspective.’3 Clearly, humans possess these qualities in different degrees. So we have Weber’s division of political personality between those who have a passionate devotion to cause, those who have a commitment to reason and those with a sense of responsibility. In reading these books, one is forced to consider the sorts of worlds the writers desire and the world they now see. Much of this may well be temperamental. Slaughter’s book is imbued with a sort of Wilsonian American optimism (she admits as much at one point, at 257). This is a world in the making and a world to come, and the news, if we keep our heads and move forward, is largely good. The dream of world government has been superseded by an embryonic reality of world governance. This is manifesto and diagnosis at the same time. What makes Slaughter’s work so attractive is that she takes an existing set of relationships, encompassing everything from international conferences of judges to ad hoc mechanisms for economic management to regulatory cooperation across borders, and translates them into a theory of global governance or world law. Then she calls for the deepening of these relationships and offers some prescriptions for making this incipient system both just and effective. Little wonder policy-makers and politicians drool. For all the apparent cynicism of politics, politicians like their intellectuals to be grounded but sanguine. This is why George Schultz is unlikely to read Alex Callinicos, far less recommend him to policy-makers. Callinicos has the classic temperament of the radical left, a passionate devotion to cause. The book is unremittingly downbeat. All around is a world of oil-mania, poverty and military misadventure wrought by a combination of White House cabals and the underlying pathologies and contradictions of global capitalism. As with Slaughter, there is immanence and there is agency. The capitalist system has cataclysm built into it, but, alongside this there are Bush’s plans for the world. ‘It is hard not to believe this is a world heading for catastrophe’, he pronounces, grim-faced, at one point (at 129). But there is the inevitability of the alternative, too. As with, say, Chomsky, Callinicos, too, is contractually-bound to see hope in the anti-war movement or the forces of anticapitalism (perhaps some conjunction of the two). But it is not at all clear how this alternative is to be realised (far less realised in the absence of the sort of convulsions that would pose a dire existential threat to those who live in the Western democracies). Alongside, Slaughter’s sunny networks of right-thinking technocrats, judges and legislators building a sustainable global order, and Callinicos’s bleak representations of capitalism on the rocks and the suicidal viciousness of the H.H. Gerth and C. Wright Mills (Translated and edited), From Max Weber: Essays in Sociology , (Oxford University Press, New York: 1946) at 128.

3

Finnish Yearbook of International Law (Vol. XV, 2004) 398 __________________________________________________________________ corporate Masters in Washington D.C., John Murphy’s book can seem a little grey in its sense of proportion. Indeed, for Murphy, the prize of a new world order would be greater adherence on the part of the U.S. to the rule of law and maybe even a world ‘along the lines...envisaged by the drafters of the UN Charter’ (at 359). This may be appealing but it is not exciting. Indeed, Murphy’s legalistic solutions to problems of international order seem strangely subdued after Slaughter and Callinicos. Even the UN itself hardly seems wedded to the vision of the UN’s founders. From The Agenda for Peace4 to In Larger Freedom5 to the 2005 World Summit Report,6 much of the talk has been about radically refashioning the legacy of San Francisco. The International Association of Insurance Supervisors and World Order Anne-Marie Slaughter is former Professor of International Law at Harvard University, one time President of the American Society of International Law, and now Dean of the School of International Affairs at Princeton. This is the book that sets out, comprehensively, a powerful agenda for a global legal order. Slaughter is best known for her work bringing international lawyers and international relations scholars together, and for her liberal theories of international law, but throughout her career the lodestar has been the governance networks or the collaboration and cooperation of governmental, non-governmental and sub-governmental across state boundaries. What should lawyers and policy-makers make of globalisation? According to Slaughter, governments at all levels have had to respond to the globalisation of threats (whether they be from networks of terrorists, or traders in endangered species, or from changes in climate, or depletion in fossil fuels). The response, sometimes haphazard, sometimes impressive, has been a sort of globalisation of good practices (judges, regulators, legislators engaging in transgovernmental cooperation and learning from each other). The first half of the book is a description of this transgovernmentalism. What are the government networks that make up this transgovernmentalism? Christopher Meyer, the former British Ambassador to the United States, has recently published DC Confidential, his memoirs of the period in which he took up residence in Washington D.C. on behalf of the Blair Government. The published extracts, when they are not about the various social events he attended, are largely about negotiations (over Iraq, over Europe) conducted at the highest levels: phone calls from Blair to Bush, representations made by Jack Straw to his counterpart Colin Powell, conversations, lacking personal warmth, between Geoff Hoon (U.K. Defence Minster) and Donald Rumsfeld (U.S. Secretary of Defence). This is international affairs as we know it. If international law has usually been understood 4 An Agenda for Peace. Preventive Diplomacy, Peacemaking and Peace-Keeping. Report of the Secretary-General of the United Nations. Available at . 5 In Larger Freedom. Towards Security, Development and Human Rights for All. Report of the Secretary-General of the United Nations. Available at . 6 Available at .

Book Reviews & Review Articles 399 __________________________________________________________________ as an adjunct to inter-state diplomacy, and if that diplomacy is conducted at the level of the executive in each state, then, on this understanding, international law is conducted, largely, by ministerial level members of the executive. Thus, international law is composed of custom (the practice and beliefs of states) and treaties (contracts between states). This is what we have tended to study as international law students over the past two centuries. For Slaughter, this picture is seriously under-developed and anachronistic. Her book is largely a corrective to this dominant view. It is not that law and politics do not continue to be managed and developed at these executive levels, rather, Slaughter’s argument goes, it gets done in many other places as well. While we remain fixated on Bush, Blair and Chirac, the stuff of global law is being moulded and transformed in other places, by other people – by the Bank for International Settlements, by the International Association of Insurance Supervisors, by the Committee on International Judicial Relations and by the Global Parliamentarians. You will look hard for such bodies in the average international law or international relations textbook but, for Slaughter, they represent a ticket to a new world order. This is apiece with Slaughter’s career-long commitment to demolishing ‘the billiard ball view’ of states as monolithic unitary actors (as in ‘the United States is opposed to the International Criminal Court’) or organised around the preferences of great men (as in ‘Blair and Bush have plans for the international order’). What we have here are not billiard balls but ‘regulatory, judicial and legislative channels’ through which parts of states engage with each other transnationally. In this way, Slaughter purports to solve a paradox of global relations: we need more government but we want less. The answer is to move from government (hierarchical, sometimes sclerotic, inflexible and inattentive) to governance (multiple, lateral, adaptable, permeable), and from the unitary state (‘Blair’, the ‘United Kingdom’) to the disaggregated state (Britain’s regulators, legislators and judges (amongst others)). At the same time, the book seeks to dislodge an influential view of the world in which the hegemony of the Great Powers or rapacity of global capital is tempered only by civil, non-governmental society. This view merely opposes the ‘passion’ (of NGOs) to the interests (of Governments) and ‘profit-motive’ (of corporate actors). What is required to keep all these elements in check is the neutral expertise of transnational actors; a technocratic turn, in other words, towards networks of regulators, judges and legislators engaging in three types of behaviour: information or cooperation, enforcement or compliance and harmonisation or convergence. If Christopher Meyer had been reading his embassy logs, he would have seen that dinners with the Bushes (endlessly adverted to in his book) were very much epiphenomenal compared to the comings and goings of ‘diverse actors networking with their foreign counterparts’ (Slaughter at 38). The executive has become increasingly fragmented and differentiated, and one of the consequences of this is that lower-level officials are playing a larger than ever role in the making of the transnational polity. Much of this is done in informally-constituted bodies such as the G7 and G8 (resembling in some respects the European Concert system of the early 19th Century). These networks of epistemic communities boost enforcement (INTERPOL), create fora for educating in best practices (U.S. Environmental

Finnish Yearbook of International Law (Vol. XV, 2004) 400 __________________________________________________________________ Protection Agency and its Mexican counterparts) and harmonise legal rules (the proposed Global Competition Network). Regulators, then, are the new diplomats. Christopher Meyer’s book might be viewed as a valediction to the old style. Judges, meanwhile, have been just as active in establishing by stealth a global legal order (but one very different from that imagined by lawyers in the inter-war years). They cite each other across jurisdictions, they enter into judicial networks, they provide checks on each other, they engage in cooperative, respectful relationships with one another and they negotiate over appropriate fora in bankruptcy proceedings. In short, judicial business is globalising too. Last, and least, are the laggardly legislators. Occasionally, legislators do look beyond the confines of their local commitments (the Global Parliamentarians were influential in Rome, NATO has its Parliamentary Assembly). But too often, with the exception of the directly-elected and sui generis European Parliament, parliamentarians are bound to territorial constituencies, parochial in their outlook, lacking in the ‘professional’ ties enjoyed by regulators and judges, and possessing a potentially shorter life-span as members of parliament than their judicial and regulatory counter-parts. In short, parliamentarians need to raise their game. In the networked world order, this will become easier to do. Regulatory, judicial and legislative networks will spread. Networks of networks, such as the Commonwealth or APEC, will facilitate the business of global interaction while vertical networks make transgovernmentalism more effective and international organisations continue to foster and encourage networks. Slaughter’s book then is a retort to two highly fashionable images of international society: the hegemony of the Great Powers and the power of civil society. At this level, it succeeds. It alerts us to the rise of an international technocracy capable of wielding power or converting soft power into hard power. But an assertive book like this, glowing with apparently pollyannish convictions, and jam-packed with examples of inter-elite collaboration is wide open to criticism. In the reminder of this review, I want to pursue two possible lines of critique. The first involves challenging the picture of the world on offer here. The second demands of the book a better account of what these governmental networks are for.7 The Wrong Picture? The world of war, death, poverty and resistance does not feature large in A New World Order. A visitor from another planet, on reading this book, would get the impression that world society is largely made up of a series of committees engaged in various improvement projects. But if the messy worlds of dirt, death and blood are missing from Slaughter’s book, then they are a focus of that of Callinicos. Where Slaughter emphasises cooperation or legitimate difference or transgovernmentalism, Callinicos sees the depredations of capital, the falsehoods of the Bush and Blair 7 Another line of critique might accept some of the descriptive claims but disparages the work of Slaughter’s networks as elitist, unrepresentative, undemocratic, secretive and so on. Slaughter does a fair job of anticipating and neutralising some of these criticisms so I leave that for another day.

Book Reviews & Review Articles 401 __________________________________________________________________ governments, the uses and abuses of democracy, the rabidity of oil politics and the rhetorical white-washing of the apostates (Hitchins, Ignatieff). Maybe these books are simply about different subjects. Slaughter’s book is about forms of technocratic cooperation at the transnational level whereas Callinicos’s book is about the politics of hyperpower and resistance. Books cannot be about everything after all. And yet these books have the same subject: international society and its future. For instance, they each talk about Iraq. In Slaughter’s case, Iraq is a concrete example of how government networks could rebuild a society. Networks of foreign judges could offer technical training to Iraqi judges, regulators could rebuild banking systems and legislators could teach democracy (at 26). According to Callinicos, Iraq is an outstanding example of American imperialism combined with aggressive capitalism (privatisation is much more central than, say, due process or legislative integrity). Whether one agrees with Callinicos or not, his book certainly raises questions missing from Slaughter’s account. It does seem strange not to comment on the way in which the new world order is so congenial to what is often a highly exploitative capitalist class or the way in which extreme poverty is viewed as largely acceptable by the political classes by whom Slaughter sets so much store. One startling omission in A New World Order is any consideration of Guantanamo Bay. Slaughter cannot have known of the network of camps now run by or on behalf of the U.S. across the globe, but she will have known about Guantanamo Bay. It seems strange that this potent symbol of at least one aspect of the new world order is unmentioned in the text. This is a peculiar blindness in itself but it is doubly surprising given that Guantanamo Bay and the detention without trial of those incarcerated there is not without relevance to Slaughter’s thesis. In particular, the four aspects of judicial comity described by Slaughter (deference, localism, rights and engagement) (at 87) each seem relevant to the way judges have approached the detention of nationals in Cuba. In the English Appeal Court decision of Abbasi, for example, the Court was critical of the United States for breaching fundamental norms of human rights law, engaged with U.S. Courts over the appropriate norms to be applied and deferred to these bettersituated courts in the hope that they would provide resolution.8 It is interesting to contrast Slaughter and Callinicos with someone who is interested in war, crime and law yet who takes a very different view from that of Callincos. John Murphy’s book is an examination of the United State’s record of compliance with international law. As a preface to this discussion he uses the same quote from Samuel Huntingdon that we find in the Callinicos book. It begins: On issue after issue, the United States has found itself increasingly alone, with one or few partners, opposing most of the world’s states and peoples. (at 4)9

Abbasi v Secretary of State for Commonwealth and Foreign Affairs (2002), available at . 9 Samuel Huntington, ‘The Lonely Superpower’, Foreign Affairs (March-April 1999) at 35, 36 (quoted in Murphy at 4). 8

Finnish Yearbook of International Law (Vol. XV, 2004) 402 __________________________________________________________________ Callinicos concludes from this that the United States has become an outlaw state (Huntingdon is more cautious saying only that ‘in the eyes of many states’ it has become a rogue superpower). It is an outlaw state because of the rapacious nature of international capitalism, and because of the radical unilateralism of the Bush Administration. Murphy’s book offers a different, and sometimes more technical, explanation for the lack of American adherence to the rule of law. According to him, the U.S. is reacting to the increasing scope and range of international law, and the proliferation of new actors in international law-making. International norms have begin to contaminate areas of policy, such as environmental protection or criminal law, that were thought to be immune from international oversight. The U.S. reaction has taken the form of a dangerous ‘provincialism’ (see, for example, the response of state courts to World Court rulings on consular rights, and the ‘Torture Memos’ wherein the Justice Department officials have sought, by reference to Executive discretion, to exempt U.S. officials from responsibilities under the Torture Convention, a provocative exceptionalism (Article 98 immunity agreements in relation to the International Criminal Court, Security Council resolutions exempting peace-keepers from the jurisdiction of the ICC), and, finally, an attitude of triumphalism (the war on Iraq and the project to remake the Middle-East). Against this, Murphy offers hope of a U.S. re- engagement with international legal norms (he points to the decision to pay UN dues, the support for international antiterrorist conventions and the backing for ad hoc international criminal tribunals). If Slaughter’s United States is the disaggregated state, and Callinicos’s the rogue state, then Murphy’s America is the schizophrenic state. Murphy’s book, then, offers an alternative to Callinicos’s, sometimes, monocular, if compelling, pessimism and to Slaughter’s sunny, and attractive, prescriptions. But its picture of the world, while nuanced in parts, seems normatively empty. It is not clear why the rule of law is worth preserving; or why the United States should re-engage with international law (given the sorts of democratic deficits many scholars have pointed, too); or why we should recover the San Francisco compact (the neo-conservatives might be right, it is 60 years old after all); or why the top-down international law referred to here is more central to understanding international society than Slaughter’s transgovernmentalism, which despite its telling ellipses, offers a more compelling picture of a possible world to come. What is to be Done? …the content of these specific principles is less important in many ways than the simple fact that there be principles (A New World Order at 260).

Of the three books under review, Slaughter’s book is likely to be the most influential. A New World Order promises novelty, change and prescription. It appears to combine the descriptive (‘here is the new order, systematically identified for the first time’) with the normative (‘this ought to be a just world order’). And, as well as this, it tells us where, and by whom, this new order is being created. The

Book Reviews & Review Articles 403 __________________________________________________________________ revolutionary class is the technocratic class. To put it as Callinicos and other critics might put it, unelected judges, shadowy bureaucrats and bourgeois legislators turn out to be our best hope for the future. But even if they are, what is it that these networks are trying, or ought to be trying to create? What is the content of the new world order? No doubt, it is ‘a deeply human creation motivated by human aspiration’ (at 133) but what is it being created for? When the underlying assumptions are that people want to work together to build a decent world order, then the underlying normative commitments surely have to be quite thin since the deep-seated conflicts about the specifics are, inevitably, elided. The UN Secretary-General’s Global Compact is a case in point. This is commended as ‘collective learning in action’ (at 192). The image is of corporate actors working with civil society, labour and the UN to offer the global market ‘a human face’.10 The emphasis is on solutions and learning. But solutions to what? Judged by the conduct of corporations in the early 21st century we would have to say that, often, what corporations want and what the market demands is buying and selling in the absence of a human face. We see this everywhere from grasping corporate behaviour in South-East Asia to the destruction of both small towns in the United States and distinctive high streets in the United Kingdom to the devastating consequences of the arms trade to the relentless pursuit of low-wages and high profits in most sectors of society. If corporations are psychopathic 11 then the Global Compact is likely to be hugely helpful to them in presenting a human face to the world (human faces are after all marketable) while continuing with business as usual. But, Anne-Marie Slaughter is at the vanguard of a liberal internationalism that views itself as progressive and humanitarian: for better ‘stewardship’ of the earth, in favour of human dignity (and human rights), hostile to the death penalty, worried about the ‘excesses’ of capitalism, and multilateralist (in the broadest sense). Her just world order is as ‘inclusive, tolerant, respectful and decentralised as possible’ (at 217). Yet one wonders if her vision of networks is thick enough to sustain her own normative preferences. Even the chapter on norms is largely about procedure – more transparency, deliberative equality, legitimate difference – there is not enough by way of substantive commitments. To be sure, inclusiveness, as a procedural norm, has certain substantive implications. It may be that the Montreal Consensus with its emphasis on permitting ‘…developing countries and poor countries [to] share in the benefits of the global economy’ (at 246) is something to support, but if this is so we want to know more about which networks will encourage this sort of policy, who the opposition is and what sort of sacrifices we might need to make. Perhaps this is all too Calvinist for Slaughter but I fear that her ‘global transgovernmental constitution’ (self-consciously mimicking the principles of Madison et al) will allow the reproduction of many of those hierarchies, oppressions and substantive inequalities that she wants to resist. Gerry Simpson 10 11

The UN Secretary-General’s Davos Address 1999 quoted in Slaughter at 192. Joel Bakan, The Corporation (Free Press: New York, 2004) at 2.

Finnish Yearbook of International Law (Vol. XV, 2004) 404 __________________________________________________________________

New Finnish Doctoral Dissertations in International Law THE IDEA OF THE PEOPLE: THE RIGHT OF SELF-DETERMINATION, NATIONALISM AND THE LEGITIMACY OF INTERNATIONAL LAW James Summers* Mr. Custos, Madam Opponent, ladies and gentlemen, my thesis, ‘The Idea of the People: The Right of Self-Determination, Nationalism and the Legitimacy of International Law’, is intended as an in-depth study of the right of peoples to selfdetermination in international law. Now, I am sure that some you are asking, what is the right of self-determination? Self-determination, quite simply, is considered to be the right of peoples or nations to freely determine their political status. What it means is that if you are lucky enough to be considered to be a nation or a people you should, potentially, be entitled to create any political institution, and this could include your own independent state. It is quite obvious, then, that nations and peoples (I make no distinction between the two) are a source of considerable power. And this power is reflected in some of the most important instruments in international law. The United Nations Charter, perhaps the closest thing to a constitution for international society, in its very first article, declares that friendly relations between nations are based on selfdetermination. The Twin Human Rights Covenants, also known as the International Bill of Rights, position self-determination as the first human right ahead of all the others. So self-determination is extremely powerful – the basis for the state and international society, the foundation for individual freedom. But, here’s the catch, no one has been able to come up with a generally accepted definition of who the nations and peoples entitled to exercise the right actually are. And no doubt this power and ambiguity makes for a dangerous combination. The origins of selfdetermination lie in war and revolution – from the blood stained guillotines of the French Revolution and the trenches of the First World War. The right helped start the Second World War and has played a major role in many conflicts since then. It is hotly contested around the globe – from Tibet up in the Himalayas or Chechnya in the Caucasus down to small islands like New Caledonia or the Falklands – from the sands of Western Sahara or Palestine up to indigenous peoples in the Arctic – and in numerous points in between.

* Lectio Praecursoria, held at the public examination of the doctoral dissertation at the University of Helsinki, 11 December 2004. Professor Karen Knop from the Faculty of Law, University of Toronto acted as the opponent.

New Finnish Doctoral Dissertations in International Law 405 __________________________________________________________________ Not surprisingly, an enormous amount has been written on self-determination. Waiting for a new book on the subject is a bit like waiting for the next bus. So what can I add to this pile of books that’s new? I would start with the fairly obvious statement that the right of selfdetermination in international law is the product of the interaction between the doctrine of self-determination and international law. I would also add that the right of self-determination, a right of peoples to freely determine their political status, is, in fact, very similar to the doctrine of nationalism. Now, what do I mean by nationalism? Well, what I do not mean is the general way that nationalism is understood – racism, hating foreigners, my country is better than yours. When I am talking about nationalism I am talking about it in the way that many political scientists do – and this is a political doctrine, which is quite recent – a little over two hundred years old – and basically boils down to two core beliefs: first, that the world is divided into nations and peoples, and, second, that the nation or people is the basis for the state. It may be that some nationalists are xenophobes and thugs, but there is no reason why they have to be. Yes, Hitler was a nationalist, but then so undoubtedly was Gandhi. All they have to believe is that the world is divided into nations and peoples, and the nation or people is the basis for the state – and that is what I mean by nationalism. What else people believe – what they add to this – that really depends on them. Saying that the law of self-determination is shaped by nationalism is not all that revolutionary either. Nationalism in international law has been looked at in a number of articles or sections of books. Indeed, it seems to be rather fashionable these days for international lawyers to season their works on self-determination with a sprinkling of the literature on nationalism. Perhaps a dash of Gellner, maybe throw in a few phrases of Hobsbawm or a spoonful of Smith. But, oddly enough that’s where most of them stop. No one, at least to my knowledge, has taken what I would say is the next logical step of examining in a systematic way what nationalism actually means for international law – and this is what I attempt to do. This work looks at the interaction between nationalism and international law: first, in theory; second, in the historical context in which international law developed; third, in the drafting of treaties and other international instruments; fourth, in cases decided by courts and other similar bodies; and fifth, in legal obligations. Nationalism in international law? It may be objected at this point that international law is really the opposite of nationalism – it is about bringing the world together. International lawyers are good cosmopolitan types. They are not really into that sort of thing. I would argue, on the contrary, that international law is, in fact, institutionally orientated towards nationalism. Nationalism and international law in some ways go hand in hand. Both have common origins in late medieval Europe and both share a common development. The great classical writers on international law, Grotius, Vattel, Montesquieu, Bentham, all considered aspects of nationalism in their works. International law and nationalism have a common focus in the state. Nationalism provides the basic legitimacy for the state. The normal state is today seen to be the nation-state. And the state is the basic unit of international law.

Finnish Yearbook of International Law (Vol. XV, 2004) 406 __________________________________________________________________ Considering this, it is, in fact, quite likely that states would use nationalist arguments in their relations with each other and that this would extend into international law. International bodies might also use this language of nations and peoples to support their decisions. And it is argued here that this is exactly what can be seen. If you look at the law of self-determination from a purely legal or cosmopolitan perspective, you may well miss something quite important. So, how does nationalism work in international law? Well, one of the first things to note is that the forums for international law are not really popular organizations. It may be that we are hearing appeals to nations and peoples, but what we are essentially looking at is the behaviour of elite international bodies. The diplomats in the various committees in the UN or the judges in the International Court of Justice are not really ‘of the people’ – and yet they can appeal to peoples’ rights and make various claims about the wishes and characteristics of certain peoples. Indeed, not only may these individuals be not ‘of the people’, they might actually know little about them. Representatives in the UN in New York or the International Court in the Hague may make determinations about peoples on the other side of the world. Judge de Castro, for example, complained in the International Court’s Western Sahara Advisory Opinion that the Court was given, ‘nothing to go on… except vivid and touching descriptions of desert life – but no concrete facts… which would fulfil the conditions required for evidence to be submitted to a court.’ 1 However, this lack of evidence did not stop the Court from making various assertions about the nature of the peoples in that region. It may be that ignorance is just as powerful as knowledge in shaping national rights. The point I would like to make is that when we are looking at selfdetermination and nationalism in international law – although we are hearing ‘people this’ and ‘people that’ – what we are looking at first of all is the behaviour of elites. What we are looking at is how Western Sahara, for example, was seen by sixteen judges in the Netherlands, not what the country was really like for the people who actually lived there. And hence the reason for the title of this work. It is the idea of a people – peoples being used as a political idea to justify and support particular decisions – the people as a rhetoric, which is the key here. So having outlined the basic context for nationalism in international law, what effect does it have on that law? The first thing to note is that nationalism and international law create two distinct pressures on the law of self-determination. On one side, we have nationalism. This is focussed on peoples and against states, and demands self-determination for those peoples – it does not say how you define those peoples and in practice it becomes a mass of competing claims – but the peoples must be real, not artificial or contrived, there must be no restrictions on their rights. On the other side, there is positive international law. This is based on states and ultimately it derives the law from the intentions of those states. What it really wants is to find some degree of clarity and consistency in the intentions of states, which would allow the establishment of particular principles or rules. Thus, we have two standards, and they are, in fact, quite different standards, with no stable middle ground between them. The problem is that more you narrow self1

Judge de Castro, Separate Opinion, Western Sahara (Advisory Opinion), ICJ Reports (1975) 172.

New Finnish Doctoral Dissertations in International Law 407 __________________________________________________________________ determination into particular categories, the more it looks like you are artificially restricting it. But, the more you broaden it, the more it seems to disintegrate into a mess of competing claims. How do you solve this problem? Well, to a large extent you can’t. Another feature of the interaction between nationalism and international law is the relationship between national ties and legal principles. National ties are the ties used to identify a nation – language, politics, religion, race, history, territory, identity – and they form the cornerstone of nationalism. Nationalism proposes that the nation is the source of political life, so how you identify a nation, defines how you think of politics. These ties can also relate quite readily to certain legal principles. The principle of self-determination associates particularly well with ties of identity, but it can also work with political ties or ethnic ties, like language. The principle of territorial integrity, emphasizes territory but can also express political or ethnic ties. Sovereignty connects well with political and territorial ties. And this has important implications for how we see the law of self-determination. Usually, this law is presented as a series of balances of principles: self-determination v. territorial integrity, self-determination v. sovereignty. But are these actually competing principles, or do they just represent different interpretations of nationality and how national ties are being weighed in the concept of a nation? All too often when you actually look at these balances of principles they simply boil down to different ideas about what it means to be a ‘people’ or a ‘country’. This is the theory of the interaction between nationalism and international law – a tension between nationalist and legal perspectives, and a close relationship between national ties and legal principles. But, how does this work out in practice? The first thing we can look at is the drafting of instruments. Here international bodies deal with the tensions in the law with a technique which can be called ‘balancing’. This is the same balance of principles that we have just seen, and what its means is that you proclaim the right of self-determination in one article of a treaty and then later on add another article, which restricts it, usually with principles like territorial integrity or state sovereignty. The advantage is that you can actually proclaim self-determination as a right of all peoples (satisfying nationalism), while, at the same time, effectively limiting it to certain categories (satisfying positive international law). However, there are two problems with this method. First, although you are proclaiming self-determination as a right of all peoples, it is still pretty obvious that what you are trying to restrict it to just some of them, and this looks quite arbitrary. This particular problem has arguably lead drafters to create more sensitive balances, which restrict self-determination by satisfaction rather than arbitrary limitation. The prime example is the Friendly Relations Declaration, GA Res. 2625(XXV), of 19702 which provides that self-determination should not effect the territorial integrity of those states that possess a representative government – the argument being that peoples with a representative government already enjoy some form of selfdetermination, so there is no need for them to push the right any further. Thus, the Declaration doesn’t limit the right of self-determination, it satisfies it. And you may 2

GA Res. 2625(XXV), 24th October 1970.

Finnish Yearbook of International Law (Vol. XV, 2004) 408 __________________________________________________________________ or may not find this convincing. The second problem is, as I have just said, that, while these balances may look superficially like legal ones, they can easily boil down to competing interpretations of a nation. This brings us on to the practice of courts. Now these balances are actually being applied to particular cases – and this where the tensions really start to show. If you are arguing that a particular group does or does not have a right to selfdetermination, it really does matter whether that group is seen as a people. A balance of abstract principles really doesn’t do the trick. Its better to meet nationalist objections head on – so that a particular balance of principles is just seen to be a reflection of the character of the groups in question. And this is arguably what can be seen in the following cases. Take, for example, the Commission of Rapporteurs’ 1921 decision in the Åland Islands dispute. In this case the Rapporteurs established a balance between self-determination and state sovereignty and this prevented the Ålanders leaving Finland to join Sweden. However, they also supported this balance by systematically demolishing the idea that the Ålanders were a separate people from Finland. So, 96% had voted in a referendum to join Sweden – this didn’t mean that they were Swedes. Ålanders had an, ‘insular mentality’ and ‘an essentially local patriotism’.3 They were just a rather isolated group looking for security in a threatening and uncertain time with a country with which they had a lot in common. Yes, they were almost entirely Swedish speaking, but then so were a lot of people on the Finnish mainland and they considered themselves Finns. So the Ålanders should not be considered a distinct ethnicity either. The Rapporteurs’ supported their balance by pulling apart the idea of an Åland people piece by piece. The Canadian Supreme Court’s 1997 decision in Re. Secession of Quebec also set up a balance, this time between self-determination and territorial integrity, which prevented Quebec from unilaterally seceding from Canada. And again it supported this balance by defusing the issue that Quebec was a separate people. Yes, Quebec may have some of the characteristics of a people, but Canada was built up as a people of peoples, a political nation which reconciled diversity with unity regardless of ethnicity or origin. Moreover, it had grown out of long evolutionary historical tradition, in which countless rights and obligations had been interwoven into ‘the fabric of a nation’.4 You couldn’t just throw that all away with a single vote. We can also look at the Western Sahara Opinion of 1975. In this case, the Court found that Morocco and Mauritania had some ties to Western Sahara, but that these were not the sort of ties that effected self-determination. This particular decision was widely seen as a diplomatic compromise. The UN had planned a referendum in Western Sahara, and this could now go ahead, while Morocco and Mauritania, which had claims over the territory, could save face. What is significant, though, is that each point of the decision was supported by the supposed character of the peoples of the region. The Court found Morocco had ties to Western Sahara, but only to one of its tribes, the Tekna, who as one tribe among many in the territory, did not The Aaland Islands Question, Report Submitted to the Council of the League of Nations by the Commission of Rapporteurs, B7 [C] 21/68/106 at 26. 4 Re Secession of Quebec, 161 Dominion Law Reports (1998) 4th Series, 428, para. 96. 3

New Finnish Doctoral Dissertations in International Law 409 __________________________________________________________________ effect the population as a whole. The Court disposed of Mauritania’s claim to full sovereignty by undermining the idea that Mauritania was a nation distinct from its various tribes. Finally, the Court supported Western Saharan self-determination by finding a ‘prominent’, ‘autonomous and independent people in the region’ 5, the Regheibat – who seemed to be the Western Saharan people – even though the Court’s information was that 173 tribes lived in the territory.6 The important point is that these statements are not simply objective descriptions, or just filling in the facts of the case, but highly subjective interpretations of peoples, whose characteristics are shaped to legitimize a particular position. What we see are Courts supporting their balances using specifically nationalist rhetoric. So where does all this leave the law of self-determination? Should it be seen as a failure? You can make this criticism, but the fact is that it also works – international instruments are drafted, decisions are made by courts. There are particular problems and tensions and rather interesting solutions, but this really underscores that the law of self-determination is a rather peculiar blend of law and politics – and perhaps all the more interesting for being so. My aim in highlighting these various tensions and problems in self-determination is not to discredit the law, but merely to better understand it. And, to conclude, I would argue that the only way that you can really understand the law of self-determination is within the framework of the interaction between nationalism and international law.

5 6

Western Sahara (Advisory Opinion), ICJ Reports (1975) 67, para. 159. Judge Gros, Declaration, Ibid. at 76.

Finnish Yearbook of International Law (Vol. XV, 2004) 410 __________________________________________________________________ THE IDEA OF THE PEOPLE: THE RIGHT OF SELF-DETERMINATION, NATIONALISM AND THE LEGITIMACY OF INTERNATIONAL LAW. By James Summers. Doctoral Dissertation, University of Helsinki, 2004. 346 pages. In international law, the right of self-determination of peoples is often referred to simply as ‘the right of self-determination’. The essence of James Summers’s study is that without meaning to be, this shorthand is telling. It unwittingly signals international lawyers’ preference for sidestepping the vexed question who is a ‘people’.1 Summers argues that we have to engage the question if we want to establish the legitimacy of a particular rule or application of self-determination in international law, and we can best do so by understanding the origins of the idea of the people in the tradition of nationalist political thought and the sorts of arguments and counter-arguments that the tradition offers. Summers arrives at this argument by positing a broader process of legitimation. The components of the process are nationalism, the right of self-determination and international law. Summers uses ‘nationalism’ to refer to the political, pre-legal idea and ‘self-determination’ when he means the expression of that idea in international law. By equating nationalism with the belief that the world is divided into nations and the nation is the basis for the state, 2 Summers’s definition encompasses the full array of ideas of the nation or people (the two terms are employed interchangeably3). In contrast to nationalism, international law is portrayed as statecentred rather than nation-centred; and positivist and procedural rather than substantive.4 As these definitions anticipate, nationalism has the potential to revitalize international law by injecting it with substantive legitimacy: every state that is a nation-state is made legitimate and thus entitled to a right of non-intervention. But nationalism also has the potential to revolutionize the international legal order because it makes illegitimate any legal entity that is not a nation-state and any legal norm that impedes or is inconsistent with nation-statehood. 5 Summers is concerned with nationalism at its most demanding and not with softer expressions that might be satisfied with arrangements such as autonomy, self-government or group rights. The process that Summers describes is therefore one of striving to harness yet contain nationalism in international law and to legitimize that containment. The political doctrine of nationalism enters international law as the right of selfdetermination of peoples, instantiated in legal rules and decisions about the application of those rules. The rules and decisions on self-determination are therefore referable to their origins in the doctrine of nationalism and to the framework of international law in which they are embedded.6 Since the rules and decisions all place some limit, although not necessarily the same limit, on 1 James Summers, The Idea of the People: The Right of Self-Determination, Nationalism and the Legitimacy of International Law (Doctoral Dissertation, University of Helsinki, 2004) at 1. 2 Ibid. at 15. 3 Ibid. at 11. 4 Ibid. at 24-25, 28. 5 Ibid. at 24, 42. 6 Ibid. at 2.

New Finnish Doctoral Dissertations in International Law 411 __________________________________________________________________ nationalism and all involve different factual contexts, each calls for justification in terms of both nationalism and international law. Here we return to Summers’s formal definitions of nationalism and international law. He maintains that the justification of a rule or decision on selfdetermination is produced by filling in a specific idea of the nation and national ties and a specific principle or principles of international law. Although his slate of international legal principles favours the status quo – for example, sovereignty, territorial integrity, uti possidetis – the principles may themselves encode an idea of the nation or national ties.7 And, for Summers, the more successful justifications are those where the balance struck can appeal to this or some other alternative idea of the nation.8 Thus, the three aspects of Summers’s analysis are the politics-into-law story of self-determination; the meaning of self-determination, and especially peoples, as a terrain of contestation and political management; and the hypothesis about the better justification. Relative to the international legal literature on selfdetermination, the first aspect fits with the main types of scholarship, the second resembles alternative types and the third hovers in between. The Politics-Into-Law Story The politics-into-law story is a feature of most treatments of self-determination, yet, Summers maintains, it is seldom scrupulously told.9 He therefore aims to provide a fuller discussion of the authors whose ideas of the nation are consciously or unconsciously taken up by international law, and a more comprehensive account of the sources of law that do so.10 In this, Summers is clearly successful. His narration of the history of nationalist thought and the succession of efforts to contain the impact of nationalism on international law is remarkable for the extensiveness of the research. Notably, Summers is not content with the usual roster of thinkers, and we encounter neglected figures like Edmund Burke,11 whose perspective Summers later refreshingly applies12 to the Quebec Secession reference.13 In the bulk of the study, which analyses the effect of nationalism on international law through the progression of international texts, cases and norms on self-determination, Summers’s rigourous treatment of the primary sources also sets a new benchmark. This is evident from the footnotes alone, which bristle with references to the travaux preparatoires and United Nations debates and resolutions on specific issues and thus go far beyond the usual sprinkling of negotiating positions and phrases discarded in the drafting process. A related merit is Summers’s inclusion of aspects of self-determination that have fallen by the wayside in the Ibid. at 42-45. Ibid. at 201, 207. 9 Ibid. at 1. 10 Ibid. 11 Ibid. at 91-93. 12 Ibid. at 219-225. 13 Reference Re Secession of Quebec, [1998] 2 S.C.R. 217. 7 8

Finnish Yearbook of International Law (Vol. XV, 2004) 412 __________________________________________________________________ literature; in particular, economic self-determination and the relationship between self-determination and the use of force. As a project of refinement, Summer’s study does not disturb the basic plot of the politics-into-law story found in much of the scholarship on self-determination. Like the familiar story, Summers’s is general and sequential: politics ends where law begins. Whereas he discusses in some detail the historical conditions and combination of ideas that produced the paradigm of the nation-state in Europe, his analysis of the sources of law that establish a right of self-determination implies that drafters and interpreters are working only with this pre-1918 stock of political ideas or, at least, is confined to this inquiry. Moreover, he does not discuss any nonEuropean authors on nationalism because he takes for granted that any such work would simply reflect the export of European ideas through colonialism and other forms of influence. In contrast, some alternative scholars of self-determination (‘alternative’ to be defined shortly) have undertaken a more specific, contemporaneous analysis of the relationship between theories of the nation and theories of international law. A Terrain of Contestation and Political Management While Summers’s politics-into-law story seeks to improve on the mainstream – he takes Antonio Cassesse’s Self-Determination of Peoples: A Legal Reappraisal14 as the state of the art15 - his point in telling the story and the way that he tells it separate him from the mainstream. I have argued elsewhere that the usual enterprise of international lawyers is either to catalogue the limits on the right of selfdetermination in user-friendly fashion, or to anticipate or advocate the coherence of the limited right in one way or another. 16 Summers does neither. Instead, he explores how the circle is squared. He writes of the balance struck variously by drafters, adjudicators and decision-makers between a right of self-determination of peoples and other principles in international law: First, these balances, however they are expressed, are intended to restrict selfdetermination and may appear arbitrary and restrictive. Second, as legal principles can be closely associated with national ties, any balance between them may depend on the interpretation of nationalist concepts, like ‘people’ and ‘country’. What superficially seems to be a balance of legal principles becomes inseparable from the politics of an underlying nationalism.17

Summers thus proceeds from the notion that there is no determinate balance or set of balances between the right of self-determination and other principles in international law, nor does any given balance have a determinate justification. In

Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal (Cambridge University Press, 1995). Summers, The Idea of the People, supra note 1, at 1, 2. 16 Karen Knop, Diversity and Self-Determination in International Law (Cambridge University Press, 2002) at c.2. 17 Summers, The Idea of the People, supra note 1, at 201. 14

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New Finnish Doctoral Dissertations in International Law 413 __________________________________________________________________ each instance, it is for the interpreter to justify the balance. Furthermore, that legal justification may appeal effectively to a particular political idea of the people. Summers’s acceptance of legal indeterminacy, his view of the relationship between politics and law and his interest in the nature of persuasion all place him in the company of alternative scholars on self-determination such as James Crawford,18 Nathaniel Berman,19 Ed Morgan20 and Martti Koskenniemi.21 There is now a range of alternative scholarship on self-determination, by which I mean roughly scholarship that is critical of or stands in contrast to the preoccupations, assumptions or methods of the majority of writing in the field. While I will touch on certain analyses by Crawford, Berman, Morgan and Koskenniemi, it should be emphasized that theirs are only some of the sorts of critique that have been developed. Without attempting to be comprehensive, I would also group as alternative, work by Antony Anghie,22 Philip Allott,23 Christine Chinkin and Shelley Wright,24 Catriona Drew,25 Siba Grovogui,26 Benedict Kingsbury,27 Jan Klabbers and René Lefeber,28 and Obiora Okafor.29 Although I am thinking here specifically of James Crawford, ‘The General Assembly, the International Court and Self-Determination’ in Vaughan Lowe & Malgosia Fitzmaurice, eds., Fifty Years of the International Court of Justice. Essays in Honour of Sir Robert Jennings (Grotius Publications: Cambridge, 1996) 585. 19 Nathaniel Berman, ‘“But the Alternative is Despair”: Nationalism and the Modernist Renewal of International Law’, 106 Harvard Law Review (1993) 1792; Nathaniel Berman, ‘The International Law of Nationalism: Group Identity and Legal History’ in David Wippman, ed., International Law and Ethnic Conflict (Cornell University Press: Ithaca, 1998) 25; Nathaniel Berman, ‘Legalizing Jerusalem or, Of Law, Fantasy, and Faith’, 45 Catholic University Law Review (1996) 823; Nathaniel Berman, ‘Modernism, Nationalism, and the Rhetoric of Reconstruction’, 4 Yale J. L. & Hum. (1992) 351; Nathaniel Berman, ‘A Perilous Ambivalence: Nationalist Desire, Legal Autonomy, and the Limits of the Interwar Framework’, 33 Harvard International Law Journal (1992) 353; Nathaniel Berman, ‘Sovereignty in Abeyance: Self-Determination in International Law’, 7 Wisconsin International Law Journal (1988) 51. 20 Edward M. Morgan, ‘The Imagery and Meaning of Self-Determination’, 20 New York University Journal of International Law & Politics (1988) 355. 21 Martti Koskenniemi, ‘National Self-Determination Today: Problems of Legal Theory and Practice’, 43 International & Comparative Law Quarterly (1994) 241. 22 Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press, 2005) at c. 3, 4. 23 Philip Allott, ‘Self-Determination – Absolute Right or Social Poetry?’ in Christian Tomuschat, ed., Modern Law of Self-Determination (Martinus Nijhoff: Dordrecht, 1993) 177. 24 Christine Chinkin & Shelley Wright, ‘The Hunger Trap: Women, Food, and Self-Determination’, 14 Michigan Journal of International Law (1993) 262. 25 Catriona Drew, Population Transfer: The Untold Story of Self-Determination (doctoral thesis in progress, University of London). 26 Siba N’Zatioula Grovogui, Sovereigns, Quasi-Sovereigns, and Africans: Race and Self-Determination in International Law (University of Minnesota Press: Minneapolis, 1996). 27 Benedict Kingsbury, ‘Reconciling Five Competing Conceptual Structures of Indigenous Peoples’ Claims in International and Comparative Law’ in Philip Alston, ed., Peoples’ Rights (Oxford University Press, 2001) 69. 28 Jan Klabbers & René Lefeber, ‘Africa: Lost Between Self-Determination and Uti Possidetis’ in Catherine Brölmann, René Lefeber & Marjoleine Zieck, eds., Peoples and Minorities in International Law (Martinus Nijhoff: Dordrecht, 1993) 37. 29 Obiora Chinedu Okafor, Re-Defining Legitimate Statehood: International Law and State Fragmentation in Africa (Martinus Nijhoff: The Hague, 2000). 18

Finnish Yearbook of International Law (Vol. XV, 2004) 414 __________________________________________________________________ Summers includes writing by a number of members of this (loose) group in his bibliography, it neither frames nor figures much in his analysis. We may wish that it had, not because of a desire for the often dreary pro forma ‘literature review’ chapter or an insistence that he show his colours or honour his debts, but because the discipline of the comparison would serve both to focus the originality of Summers’s contribution and to challenge certain aspects of it. In the introduction, to give a general instance, Summers seeks to distinguish his approach to the ‘people’ as a political idea from the treatment of the people as a sociological entity.30 While it is true that some alternative authors are interested in the sociological question how the sense of being a people is constructed on the ground, their interest is often in the question what sociological assumptions about ‘people-ness’ animate a given political theory of nationalism or legal interpretation of self-determination. The latter inquiry may be wider than Summers’s, which concentrates on the sociological assumptions contained in the set of received political ideas he calls ‘nationalism,’ but the approach resembles his. Hence a comparison with this type of alternative scholarship on self-determination would both identify and strengthen the distinctiveness of Summers’s perspective. In the remainder of this review, I outline some of the more specific similarities and differences and indicate the issues that the differences might raise. As already mentioned, what unites Summers’s approach to the interpretation of self-determination with those of Crawford,31 Berman32 and Morgan33 is an interest in how the circle is squared. Instead of stringing together the ratios decidendi of successive International Court of Justice decisions on self-determination, Crawford relates the reasoning in each to the politics of colonialism on the Court. Using a methodology reminiscent of historian Modris Eksteins’s in Rites of Spring,34 Berman links currents in international law’s approach to nationalism in the inter-war period with artistic currents of the time. Morgan argues that the contradiction between the right of self-determination of colonial peoples and uti possidetis is resolved in the case of Kenya if we look to the work of the prominent East African novelist Ngugi Wa Thiong’o, who depicts Kenya’s independence as a return to sovereignty despite the fact that there was no Kenya as such before British colonization. In my work,35 I have suggested that the leading cases on selfdetermination reflect attempts by judges and other institutional interpreters to craft a response to even deeper challenges to international law embedded in claims to self-determination; namely, those of cultural and gender bias. Unlike these writers, however, Summers insists on a positivist and proceduralist view of international law. Working in smaller compass, they explore relationships between ideas of the nation and nationalism and ideas of international law. Summers multiplies the former while holding the latter fixed. Admittedly, Summers, The Idea of the People, supra note 1, at 4-8. Crawford, ‘The General Assembly’, supra note 18. 32 Berman, ‘Modernism, Nationalism, and the Rhetoric of Reconstruction’, supra note 19. 33 Morgan, ‘The Imagery and Meaning’, supra note 20. 34 Modris Eksteins, Rites of Spring: The Great War and the Birth of the Modern Age (Lester & Orpen Dennys: Toronto, 1994). 35 Knop, Diversity and Self-Determination, supra note 16. 30

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New Finnish Doctoral Dissertations in International Law 415 __________________________________________________________________ Summers’s interest is in what nationalism brings to international law, but any discussion of the resistance it encounters and the legitimation of this resistance would seem to require some recognition that the idea of international law too is contested and potentially more robust. Because Summers takes a positivist and proceduralist view of international law, the only substantive counter-weights to nationalism that he identifies in international law are whatever alternative assumptions about nationhood might be encoded in international law’s preference for existing borders. International law seemingly contains no meaningful idea of peace or justice that might pull convincingly against nationalism and thereby justify a limited right of selfdetermination. In addition, although Summers’s political chapter treats liberalism and nationalism as separate, his legal chapters funnel all varieties of nationalism into one conception (nation=state) and trace its influence on international law. In the process, liberalism is essentially compressed into liberal nationalism and any independent relevance it might have in international law is neglected. Finally, as the debate over a right of secession illustrates, the limits that Summers discusses under ‘the law of self-determination’ – colonial self-determination, peoples under foreign or alien domination, remedial secession by minorities – may be referable to something other than positivism and something other than nationalism. For example, peoples under foreign or alien domination as a category of right-holder can call on ideas of corrective justice that also resonate in the laws on territory and force.36 Yet, Summers is interested in the limits of self-determination primarily as a high-water mark for the ambiguous influence of nationalism on international lawmaking and does not investigate such rationales. The Better Justification The third and final aspect of Summers’s analysis is the hypothesis that given the need to justify legally any balance between the right of self-determination of peoples and other principles in international law, the better justification is one that appeals to some political idea of the people. He writes, for instance, It will be shown with the Badinter Opinions, in particular, that limiting selfdetermination with principles, while basically sitting on the fence as to whether these groups are peoples or not, is an extremely insecure and unstable position. A better approach may be to address these nationalist concerns head on and support a legal balance with a legitimising nationalist rhetoric.37

As regards the Badinter opinions on self-determination, my own view is that if we consider ideas of nationalism developed in the context of the European Union (compare my earlier point about the pre-1918 stock of political ideas), it is possible to read the opinions as trying to do precisely what Summers advocates and more; See e.g. Lea Brilmayer, ‘Secession and Self-Determination: A Territorial Interpretation’, 16 Yale Journal of International Law (1991) 177. 37 Summers, The Idea of the People, supra note 1, at 201. 36

Finnish Yearbook of International Law (Vol. XV, 2004) 416 __________________________________________________________________ that is, to propose a particular understanding of national identity and one that would persuade all of the implicated groups.38 The main questions, however, are what Summers means when he says that ‘a better approach may be to … support a legal balance with a legitimising nationalist rhetoric’ and how this prescription sits with his analysis of the meaning of selfdetermination and especially peoples as a terrain of contestation and political management. Summers does not address these questions, and it is for this reason that the third, prescriptive aspect of his study may differentiate him from alternative scholars of self-determination, most notably, Martti Koskenniemi.39 Like Summers after him, Koskenniemi demonstrates the legal indeterminacy of self-determination rooted in opposing political traditions and examines the forms that arguments about self-determination therefore take in international law. Unlike Summers, though, Koskenniemi proposes that because nations are conceptualised in conflicting and overlapping ways[, t]he law’s task is not to rule on the relative worth of such concepts but to establish a workable political structure between divided loyalties and conflicting identifications (without seeking to do away with them). In the Yugoslavian situation, and in a number of existing situations worldwide, this requires a greater openness towards locally and regionally idiosyncratic arrangements than is probably allowed under the conceptualisation of these conflicts from the perspective of existing sovereignties.40

Both Koskenniemi and Summers are arguing for a turn to politics, but Koskenniemi advocates the improvisation of a solution that would attempt to incorporate contradictory and compatible layers of identity, whereas Summers insists that a decision-maker or adjudicator commit to a single idea of the people. Perhaps all that separates Summers from Koskenniemi is a prediction about what works. If Summers indeed approaches the legal formulation and interpretation of self-determination as a task of practical politics, then by ‘better’ justification he presumably means one that is more legitimate to those involved and hence more effective at settling the dispute. Then again, in the conclusion, Summers follows the summary of his prescription for ‘balancing with nationalist construction’ 41 with a brief normative discussion of the need to combine liberalism and nationalism. This implies that ‘better’ may mean something other than simply legitimate in nationalist eyes, but he does not discuss this tension. There is also the sense that ‘better’ signifies truer to Summers’s view of law as inseparable from politics and the right of self-determination as inseparable from nationalist politics. Without being sure in what sense Summers thinks a judge is better served by grasping the nettle and adopting an idea of the people, I want to address one possibility. This is the intuition that to appear legitimate and hence to be effective, the legal response to nationalist claims cannot be in a non-nationalist register. Some See Knop, Diversity and Self-Determination, supra note 16. Koskenniemi, ‘National Self-Determination Today’, supra note 21. 40 Ibid. at 269. 41 Summers, The Idea of the People, supra note 1, at 303. 38

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New Finnish Doctoral Dissertations in International Law 417 __________________________________________________________________ separatists might vote ‘no’ to independence because of the possible economic downside, but such risk aversion does not translate into a lessening of their longing for their own state. Passion must be met with passion. But on precisely this same intuition, we might wonder why in some cases the judge is not wiser to decide on another basis and leave room in the judgment for the groups involved to fill in or develop their own images of their identity. While I can imagine various responses, Summers’s study does not readily yield any. *** In conclusion, James Summers’s lively and sweeping work is a welcome contribution to the literature. It is a resource for and also a challenge to the standard types of scholarship on self-determination. At the same time, it both furthers and questions alternative analyses of the right by tracing a central and productive ambiguity – the idea of the right-holder – yet advocating against ambiguity in any given interpretation. As such, Summers’s treatment of self-determination is sure to attract interest in many quarters. Karen Knop Faculty of Law, University of Toronto

Finnish Yearbook of International Law (Vol. XV, 2004) 418 __________________________________________________________________ PARTICULARITY AS UNIVERSALITY THE POLITICS OF HUMAN RIGHTS IN THE EUROPEAN UNION

Päivi Leino* Mr Custos, Madam Opponent, ladies and gentlemen. Much in the world changed around the time when the Berlin Wall fell. The Cold war had involved two competing conceptions of the political: both of them deadly serious; and both fundamentally incompatible with each other. 1 Even human rights, described as ‘universal’ in the main international human rights instruments, were caught up in the ideological battles of the cold war. They turned into a tool in power politics, with the Western camp speaking for the implementation of civil and political rights; and with the Eastern block underlining the importance of economic and social rights. The developing States, again, if anyone cared to listen to them, attempted to speak for collective rights and their own right to development. The views and actions of the West were balanced by Soviet counteractions; as a result there was no clear, universally accepted idea of the ‘right’ or of the ‘good’. The world after the fall of the Berlin Wall was a different one, with Western ideas of rights and individuals now coming to occupy the centre of international legal debates. The language of universal human rights flourished – after all, now it had no clear competitors. The new era carried a promise of freedom, democracy, human rights, rule of law and free markets, all defined along Western lines. It was especially the European Union and the United States, but also a number of other institutions like the World Bank, that embraced this new universal language. But the problem is this: the absence of the ‘other’ to contest Western policies does not necessarily imply that they would now be universally accepted and embraced, or that no alternatives or discussion would be needed. For us Europeans, the universality of human rights has generally meant this: Human rights values were our discovery. We invented them during centuries of struggle, through revolutions, through oppression, wars and misery. And now we know from our own experience that these values are good. Because these values are good, and because we wish to do good, then everyone else should have those values, too. We embark on universalist adventures, climb on horses, ships and airplanes with the idea of doing good (and a bit of trade and investment on the side). Nothing in the universalist ideas of today is new: in the universalism that is actually closely attached to our own personal and cultural understanding of morals or values.2

Lectio praecursoria, held at the public examination of the doctoral dissertation at the University of Helsinki, 23 April 2005. Professor Marise Cremona from University of London acted as the opponent. 1 On this, see e.g. Paul W. Kahn, ‘American Hegemony and International Law. Speaking Law to Power: Popular Sovereignty, Human Rights, and the New International Order’, 1 Chicago Journal of International Law (Spring 2000) 1-18 at 7-8. 2 Benedict Kingsbury, ‘Confronting Difference: The Puzzling Durability of Gentili’s Combination of Pragmatic Pluralism and Normative Judgment’, 92(4) American Journal of International Law (1998) 713723 at 723. *

New Finnish Doctoral Dissertations in International Law 419 __________________________________________________________________ Earlier this mission was carried out by the great imperial powers; in today’s world politics the EU has assumed much the same role. For the Union, the universality of rights has always been central and formed the basis of its human rights policies. Europe’s universalist tradition is, for instance, clearly continued in the recent EU Fundamental Rights Charter, which proclaims that ‘conscious of its spiritual and moral heritage, the Union is based on indivisible and universal values’. Our moral heritage – universal values. In this way, the Charter also reflects the dual role that human rights play in European policies. First, human rights values are believed to belong to everyone, and thus be universal. But secondly, as Commissioner Olli Rehn has recently stated, ‘it is values that make the borders of Europe. Enlargement is a matter of extending the zone of European values, the most fundamental of which are liberty and solidarity, tolerance and human rights, democracy and the rule of law’.3 So while speaking about values as something universal and good, we speak of values as something that describes the true essence of Europe. This paradox is at the heart of the current study. *** The promise of universal human rights is a beautiful one: that all human beings are equal to their value and no one should suffer from grave human rights violations. But universality is not only a beautiful idea; it is a difficult one, and can be taken too far. In 1998 the Finnish musical group Ultra Bra wrote a song on universality for a Telia commercial, bringing back flash-backs from the leftist rallies and the political song culture of the 1970s, from around the time when I was born. Many of the old concerns seem to be becoming topical again in the (perhaps less intense) rallies of my own generation: being anti-globalization, anti-WTO, anti-EU, anti-US intervention in Iraq. The Ultra Bra song ‘Me yhtenäistämme’ starts with a quote from the Universal Declaration of Human Rights concerning human rights, freedom, equality, brotherhood and solidarity, and then continues with the practical implications of such equality. Everyone should be given an equal share of everything; everyone should be guaranteed the same quality of life. They sing: All girls should have a similar manually operated curler, All boys should have a hammer and nails for brick wall and plenty of electronic equipment [...] Each home should have an illustrated encyclopaedia and a crystal chandelier, a lovely evening by an open fireplace, two children and a dog.[…] Everyone should get a lane of his own on the motorway to Lahti, and have the right to stay up until two a.m.4

3 Olli Rehn, European Commissioner responsible for enlargement, ‘Values define Europe, not borders’, published in the Financial Times, 4 January 2005. 4 ’Me yhtenäistämme’ by Kerkko Koskinen, lyrics by Hasan & Partners (unofficial translation by author).

Finnish Yearbook of International Law (Vol. XV, 2004) 420 __________________________________________________________________ What is reflected in this song is the way in which the idea of universal and equal rights has proved difficult to implement. There is always the question as to what should happen to those who do not care for an illustrated encyclopaedia or a crystal chandelier, as in the song I just quoted, but would see quality of life as something different. What happens to the motorway construction plans if you don’t live in the Helsinki area, or if your summer house is placed somewhere else than in Lahti? My doctoral thesis discusses the difficulties that emerge when trying to live out the idea of universal human rights in practice. I study these difficulties in the context of the European Union – an organization which with its increasing competencies plays a bigger and bigger role in our daily lives. In the first part, I studied the universality of rights ‘at home’ in Europe, in four EU Member States and noted both that there was no single human rights tradition in Europe, but also that rights had very little automatic contents. The meaning given to human rights depended on their context, and required political decisions for their implementation in practice. Rights were universal in Europe only at the level of abstraction. In the second and third parts I discussed the limits of the discussion on human rights within the EU in relation to the EU Charter of Fundamental Rights and the practice of the European Court of Justice. In the fourth part, I explored the limits of the discussion on universal rights in the context of EU enlargement, and in the final part, in its relationship to third states in the context of trade and development policies. I argue that even if we Europeans embark on our journeys in order to speak about the beauties of living in a democratic society, we forget about the difficulties of democracy; we forget the need to discuss priorities, debate and contest. We see ourselves as experts who know what is good. We know – and still, we forget. In other words, it is not the idea of universalism that is the problem, but the way in which we use this argument. What I have discussed in my thesis is what happens when our values are turned into a yardstick for measuring the performance of others. The question thus is not about whether Europe should promote ideas like ‘liberty’ or ‘solidarity’ both within and outside its borders – of course, Europe should do both. But this approach is not without problems: None of these ideas is detailed enough to provide any substantive indication about its contents. This also applies to the conception of rights in the European Union Member States themselves. For example, even if we all are for ‘equality’ and ‘solidarity’, we disagree on whether health care should be defined in terms of an individual right or simply as a general policy objective; we agree on the principle that everyone should have the right to a ‘freedom of expression’, but disagree on how people should be entitled to exercise that right and where its limits should be drawn. In other words, the openness and abstraction of human rights is the key to their general acceptance. But this abstraction hides from sight the degree to what we disagree on how these values should be turned into political practice. In general, we solve such disagreements by pushing human rights to be decided in administrative processes by administrators and bureaucrats or judges. The abstraction of rights turns human rights into a matter of institutional politics, and their interpretation becomes dependent on who has the power to implement them. In fact, in the cases that I have studied in my thesis, it has seemed that quite often, the idea of

New Finnish Doctoral Dissertations in International Law 421 __________________________________________________________________ universalism makes us speaking the language of universal human rights strong, and those whose rights we are claiming to protect, weak. Quite often, defending your own economic and commercial interests is difficult to combine with the interests of others. For example, it is difficult to find solutions that would be equally beneficial for an EU based company and a developing state. You need to choose. For European politicians this means balancing between the wishes of their own voters, and those of people far far away. Suddenly, it is no longer easy to be unselfish. Despite these problems, Europe is today speaking about human rights and about the ‘good’ more clearly than perhaps ever before. For example, the Constitution for Europe, now waiting for ratification by each EU Member State, defines Europe as ‘a special area of human hope’ and underlines that the Union should ‘safeguard its values [and] fundamental interests’, ‘guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world’. The EU Security Strategy, adopted after the September 11 attacks, underlines the role of the Union and the United States as ‘a formidable force for good in the world’. It is argued that Europe needs to have a strong role in world politics, and to define itself specifically as the messenger of good and beautiful values. 5 *** The story of the European Union is, of course, well-known. We know how Europe rose from ruins after the Second World War and was united under the flag of two things; the wish to prevent war from ever taking place in Europe again, and the idea of trade uniting peoples. Until then the peoples of Europe had seen war as an oftenrepeated phenomenon. But with Europe and its peoples integrating, war would become unthinkable. This is something that Europe has succeeded with. Meanwhile, the European Communities have grown into a great bureaucratic machinery, which despite affecting the citizens in most areas of life, does not really succeed in speaking to the majority of them. Despite ‘many years of high-sounding Treaty preambles and general declarations about peace and prosperity, the legitimacy and relevance of the European Union as a polity is not felt by large sections of the public’, as professor De Búrca has described. 6 This is because much of the Community law affecting peoples’ lives seems either trivial or irritating, or is perhaps important, but at ‘such a level of remoteness that there seems little prospect of any influence over the policy and little understanding of why it ought to be decided at a European rather than at any other level’.7 The EU is very much a project for the elite; it has a political culture 5 As the Commission recently put it, the EU’s main interest lies in ‘the human aspects of international relations, such as solidarity, human rights and democracy’. ‘A world player. The European Union’s external relations.’ Booklet issued by the European Commission, Directorate-General for Press and Communications. 6 Gráinne De Búrca, ‘The Quest for Legitimacy in the European Union’, 59(3) Modern Law Review (1996) 349-376. 7 Ibid., at 374-375.

Finnish Yearbook of International Law (Vol. XV, 2004) 422 __________________________________________________________________ in which discussion openings are often rejected with reference to them simply being ‘in the wrong’, and justified with the evaluator’s expertise. In fact, because of the technical nature of the EU, expertise is a pre-condition for participation in debates; thus, debates become a domain for those that have it: the political elite, the bureaucrats and the academics. As a result, the role of politics diminishes, because ‘politics’ is treated as if already happened somewhere else: in a Council meeting, or in the European Council Summit, or in the Commission. 8 The decisions have already been made – it is too late to discuss now. In this culture, even the role of human rights changes. They cease to challenge and provoke change, and instead start to legitimize existing practices; they turn into something for bureaucrats instead of being something for the people. The newest attempt to address the issue, the much-celebrated Constitution for Europe, seems to follow much the same pattern – which is no surprise considering that it is about 300 pages long, includes 448 articles, 36 protocols and 22 annexes. In a recent poll,9 33% of EU citizens said they had never heard of the Constitution; another 56% said they had heard of it, but knew very little about its substance. Only 11% said they had an overall knowledge of its contents. When asked what they saw as the main function of the new Constitution, 38% named its importance in pursuing the European construction. Only 14% saw the Constitution in terms of a European citizenship; 13% saw that the Constitution somehow strengthened democracy in the Union. In this way, European integration has become something that feeds itself; where reform is not really about change but about re-describing the old setting in a new language – and now it is the turn of the language of constitutionalism. My thesis argues that we should give more room for change, for politics, for debates, for different opinions and values, both within the European Union and in its relations to third states. Political problems or disagreement cannot be solved by simply referring to common values or universalist principles. This theme has been highlighted in all five articles that form the substance of this study. The EU is capable of doing many things, perhaps better than a nation State. But today, many of its policies seem arrogant, badly managed, and ill-justified. In relation to human rights, this finding entails re-evaluating our understanding of what universality means in practice – without necessarily forgetting the objective. This means that if we believe in human rights, democracy, and other related values, then we should keep talking about them, but by simultaneously keeping in mind that there is little automatic or generally accepted in these values. In relation to other states, this means that our understanding can (and will) be challenged by other equally valid understandings. And we should also keep in mind that we ourselves could be wrong, and change accordingly. Within the Union, this emphasizes the need of a new political culture that gives much more room for debate; an understanding that criticising and contesting things is not bad. ‘Europe’ is not so much about chasing after a pre-existing identity based on ‘common values’ than about what we wish to become; how to build further on 8 On this, see also David Kennedy, The Dark Sides of Virtue. Reassessing International Humanitarianism (Princeton University Press: Princeton and Oxford, 2004). 9 ‘The Future Constitutional Treaty. First Results’, Special Eurobarometer 214/Wave 62.1, published in January 2005.

New Finnish Doctoral Dissertations in International Law 423 __________________________________________________________________ whatever it is that has brought us together while still tolerating the differences that we have. This debate presumes courage to reformulate the EU quite radically, if need be, contributing to us having a better and more easily justifiable European Union than the one we have today. It is with this debate in mind that the present study has been written, and it is to this debate that this study wishes to make its greatest contribution.

Finnish Yearbook of International Law (Vol. XV, 2004) 424 __________________________________________________________________ PARTICULARITY AS UNIVERSALITY: THE POLITICS OF HUMAN RIGHTS IN THE EUROPEAN UNION. By Päivi Leino-Sandberg. Doctoral Dissertation, University of Helsinki, 2005. This thesis, which makes a significant contribution to the literature on the nature of the European Union and its international identity, is perhaps even more relevant than it was when the thesis project was first outlined five years ago. There are a number of reasons for this, among them the heightened profile given to the Union’s values, including respect for human rights, found in the Constitutional Treaty and in the deliberations leading to its adoption; as well as the ‘enlargement debate’, still ongoing, about what it means to be ‘European’, to qualify for membership of the Union. We could also point to the way in which the Union is seeking to build an enhanced relationship with its non-candidate neighbours to the East and the South upon declarations of ‘common values’, and the way in which such values represent – and are used to justify – the type of ‘civilian power’ wielded by the Union.1 The need to define the nature of that power increases as the Union becomes increasingly concerned with issues beyond its traditional spheres of action (trade and development for example), issues such as security and defence. In 1995 the Commission argued that ‘[i]n an international environment in which the universal nature of human rights is increasingly emphasized, the European Union has gradually come to define itself in terms of the promotion of those rights and democratic freedoms.’ 2 Over the last decade, the identification of the European Union with a set of common values – not always fully articulated but with human rights and democracy at their heart – has become an increasingly important part of EU policy-making, both internally and externally. Although it is right to see this espousal of values as in some sense replacing a more difficult debate as to the Union’s identity, the idea of common values has emerged as part of the Union’s constitutional development and a representation of that collective identity. 3 The Commission recently asserted that ‘The European Union is ultimately a union of values’4 and this idea is also reflected in the Laeken Declaration by which the European Council launched the Convention on the Future of Europe.5 The perception of values as constitutive of a European identity is - not coincidentally - reflected in the Commission’s highly influential paper, ‘The Challenge of Enlargement’, prepared for the Lisbon European Council in 1992. The Commission reflects on what it means to be European, and develops its ideas on 1 Karen E. Smith, European Union Foreign Policy in a Changing World (Polity Press 2003) pp.15, 21-22, citing Hedley Bull, ‘Civilian Power Europe: a contradiction in terms?’ 21 Journal of Common Market Studies, 1 (1982), and Christopher Hill, ‘European Foreign policy: power bloc, civilian model – or flop?’ in Reinhardt Rummel (ed.) The Evolution of an International Actor (Westview Press 1990). 2 Commission Communication, ‘The External Dimension of the EU’s Human Rights Policy: From Rome to Maastricht and Beyond’, COM(1995) 567, p.3. 3 J.H.H. Weiler, ‘A Constitution for Europe? Some Hard Choices’ 40 Journal of Common Market Studies (2002) 563 at 569. 4 Commission’s Second Annual Report on the Stabilization and Association Process for South East Europe, COM(2003)139 final, 26 March 2003, p.3. 5 Laeken Declaration on the Future of the Union, European Council, 14-15 December 2001.

New Finnish Doctoral Dissertations in International Law 425 __________________________________________________________________ conditions for membership, ideas which were to evolve into the ‘Copenhagen criteria’ of June 1993. Starting from what was then a simple statement in both the EEC and Maastricht Treaties that ‘any European State’ may apply for membership, the Commission recognised that the term ‘European’ has not been officially defined: It combines geographical, historical and cultural elements which all contribute to European identity. The shared experience of proximity, ideas, values, and historical interaction cannot be condensed into a simple formula, and is subject to review by each succeeding generation.

The Commission turns to the references to democracy and respect for fundamental human rights in Article F of the Maastricht Treaty (now Article 6 TEU) as essential characteristics of the Union (although not at the time formally linked to Union membership) and comes up with a three-fold set of conditions for membership: European identity (encompassing shared values), democratic status and respect for human rights. Since then, of course, the ‘Copenhagen criteria’ have formalized these conditions (and added to them) and the membership clause (Article 49 TEU) has been revised to include an express cross-reference to the Article 6 principles. As the European Council declared at Helsinki in December 1999, ‘The candidate States … must share the values and objectives of the European Union as set out in the Treaties.’6 The Constitutional Treaty signed in October 2004 preserves this link between Union membership and respect for the values on which the Union is said to be founded.7 Common values as constitutive of identity, both of a ‘European’ State, and of the European Union, in this way enable accession criteria to be applied which can be characterised as open (the Union is not a closed club) and which do not foreclose membership or establish immutable frontiers. As the European Council claimed in the Laeken Declaration, ‘The European Union’s one boundary is democracy and human rights. The Union is open only to countries which uphold basic values such as free elections, respect for minorities and respect for the rule of law.’ The aim is to assert a Union identity which is based on inclusion (sharing common values) rather than exclusion. It is in this sense that Article III-292 of the Constitutional Treaty declares that the Union’s foundational principles have inspired its enlargement as well as its creation. This thesis rightly challenges the easy assumption that the Member States do indeed possess a set of agreed ‘common values’ – and makes the case that it is only possible to identify such common values if we adopt such a high level of abstraction as to make the exercise almost meaningless. Against that background it questions 6 Conclusions of the European Council, Helsinki, 10-11 December 1999, para 4. The Millennium Declaration adopted at Helsinki also claimed that ‘The Union's citizens are bound together by common values such as freedom, tolerance, equality, solidarity and cultural diversity.’ 7 Article I-58 CT; Article I-2 CT identifies these values: ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.’

Finnish Yearbook of International Law (Vol. XV, 2004) 426 __________________________________________________________________ the emphasis on human rights and values which are claimed to be both universal and somehow especially ‘European’ as common to the EU Member States, and their use not only as a condition of membership, but also as a basis for external policy. The author describes this work as ‘an international law study of how commonly invoked human rights principles actually work when they are used as tools for particular policies and objectives in the EU context.’ (p.22) More specifically, its aim is to critique the reliance by the European Union on the rhetoric of universal human rights, especially in its external and enlargement policies, while at the same time claiming that these universal human rights and values form the foundation for a distinctive ‘European’ identity. The theoretical focus of the thesis is on two issues. First, an enquiry into the claim of universality in respect of fundamental human rights and values; the meaning of universality, as applied by the EU, by human rights theoreticians and by other international actors; the significance of universality for the development of EU policy; and an examination of what kind of universality can be attributed to rights and values which are claimed to be distinctively European. Second, the basis for and the nature of European Union competence in the human rights field, especially in external policy; the role of the European Court of Justice, other institutional actors and the Member States themselves in determining and delimiting competence; and the impact of the ‘competence debate’ between these actors with their competing interests on the effective development and implementation of policy. Linking these themes, the thesis mounts a challenge at a theoretical as well as a practical level to the claim that the European Union can and should define itself in terms of its adherence to human rights and values, and that this self-definition is at the core of the EU’s identity. What does such a claim really entail, in terms of competence, policy choices and processes? Methodologically, the thesis combines theoretical enquiry with substantive legal analysis. It includes some detailed analysis of the case law of the European Court of Justice on human rights and external competence, and of the legal status of the Charter of Fundamental Rights, an examination of pre-accession conditionality through (inter alia) Commission Reports, the operation of the human rights or ‘essential elements’ clauses in Community agreements and the practical linkages made by the EU between trade, development and human rights. However, the author’s aim is not only to assess how well – or not – the EU’s policies are working, the extent to which they are achieving their objectives and associated competence or procedural issues. She sets herself the task of questioning the theoretical basis for these policies: the extent to which it is possible to build an identity for the Union on values which are claimed to have universal validity; the assumption that fundamental human rights are indeed universal and capable of objective application; the place of politics in human rights discourse; the argument that fundamental rights and other values such as democracy, the rule of law and good governance are a necessary precondition for the right to development. The result illuminates the constitutional structure of the EU and the place of values, principles and rights within that structure. As the author acknowledges, three different legal disciplines are involved (international law, human rights law and EU law), each with their own favoured

New Finnish Doctoral Dissertations in International Law 427 __________________________________________________________________ methodologies, discourse and familiar but complex landscapes. She aims in particular to use the techniques of international law to interrogate the claims of EU law in the human rights field. She also intends to move beyond the theoretical discussion of the meaning of universalism in EU and human rights law, and to examine ‘how principles actually work’ as tools and instruments to further specific policy objectives – enlargement, for example, or development policy. It was necessary, therefore, to avoid the pitfalls of on the one side, an over-generalized and abstracted approach which would lack real substantive content, and on the other too narrow a focus on the particulars of specific policy areas with the distortions of perspective that might result. She succeeds admirably in keeping this balance between what one might call the universal and the particular. Perhaps surprisingly, this is in part the result of the format in which the thesis is presented. It takes the form of five separate, already published, articles, together with a lengthy introductory section which draws out the themes and introduces the theoretical and methodological underpinning for the overall thesis. The dangers of this approach are obvious: the risks of incoherence, of repetition, of self-contradiction; the difficulty of presenting a sustained argument, of bringing together five papers written over a five year period as they were published and without revisions. These dangers and difficulties are largely overcome: there is no sense of incoherence and little repetition; the overall argument is sustained, with the help of the introduction, across all five papers, and although it takes a less linear form than is usual in a thesis, this operates as an advantage rather than otherwise. Each of the five sections, as it has had to stand alone as a separate publication, combines a theoretical approach with a practical analysis, as it seeks to draw out wider conclusions from the examination of specific legal issues or policy developments. In this way the argument is built up incrementally and from a variety of perspectives. Following the Introduction which both sets out these themes and charts the development of the author’s thought (the sense of following an intellectual journey is strongly conveyed), the first paper is a critique of the Union’s claim to possess common, European, values. It is based on a series of case studies of differing constitutional models of human rights protection in four Member States (France, Germany, the UK and Finland), followed by an examination of the divergent views taken by different Member States as to the implementation of a number of fundamental human rights, including the right to life, freedom of expression, and approaches to economic and social rights. The author concludes that although ‘one of the most visible protagonists of the language of universal human rights in international fora is the EU … the experience of Europe shows that the key to the success of this language is indeterminacy.’ (p.110). She concludes, ‘it is hard to see the slogan of Europe being built on common traditions and values as something other than false …’ (p.111). The paper constructs a solid and defensible argument to the effect that the attempt ‘to construct a distinctive identity for the Union through the rhetoric of universal human rights’ (p.19) risks the creation of a damaging gap between rhetoric and reality, the reality being the contested and necessarily particularly ‘European’ nature of our shared values. By claiming a universality and a commonality which is at best unrealistic and incoherent and at worst false, the EU

Finnish Yearbook of International Law (Vol. XV, 2004) 428 __________________________________________________________________ damages its credibility and hinders its policy priorities as well as, in the end, failing to tell a convincing story of its identity. The link between common values and uniformity is not quite as inevitable as this paper claims, however. Is it not possible to aspire to common values but accept that they will be interpreted differently in different cultural contexts? A claim that the EU is based on common values does not necessarily depend on the Member States taking identical views of (say) abortion or euthanasia. Rather, it implies a specific approach to the EU’s own activities and policies, the particularities of which will need to be hammered out in discussion between the Member States. The second paper turns to the EU Charter of Fundamental Rights. The author is less concerned with the widely commented-on innovatory aspects of the Charter’s drafting process and adoption; instead she focuses on what the Charter actually delivers and is skeptical of the results. The Charter can be examined from a variety of perspectives, and here the author’s main concern is in establishing whether the debate surrounding the Charter continues or breaks loose from earlier human rights discourse within the EU, and whether it might thereby constitute ‘a new human rights era’ in the EU (p.134). The paper examines the non-binding nature of the Charter, its role as a tool of integration, and as a political instrument creating legitimacy, its possibilities as a basis for a human rights competence, and its potential in the process of constitutionalization within the Union. The conclusion is that progress has been very limited: ‘the Charter is a ‘strategy of deferral’, as it defers all substantive policy decisions into further debate within existing institutions. … [it] purchases its overall acceptability only at the cost of giving up the aim of becoming a substantive constitution.’ (p.160). One of the most interesting sections of this paper concerns competence: since human rights is not so much a delimited field of action as ‘a criterion or a preference that may be relevant in any of the substantive fields of EU action’ (p.155), it would be very difficult to determine in advance, or to limit, any express human rights competence that might be granted by the Member States to the Union; hence the careful wording of Articles II-111 and 112 of the Constitutional Treaty. Leino-Sandberg examines the implications for the balance of power of granting a legislative human rights competence to the EU institutions; it would, she rightly says, have far-reaching consequences ‘as there are in reality very few questions that cannot be linked to human rights in one way or another’ (p.158). One only has to think of the history of harmonization in the internal market to see the truth of this. As competence-boundary questions turn into institutional power battles, the European Court plays and would play a central role. In fact, the third paper turns specifically to the question of external human rights competence, as worked out through the case law of the Court of Justice and in particular Opinion 2/94. The case law is examined from three perspectives: the relevance of external judicial dispute mechanisms; the distinction between negative and positive rights; and the link between competence (especially implied powers) and Community objectives. As she argues, ultimately one of the most fundamental problems with an external human rights competence for the Union (particularly a competence based on parallelism or complementarity) is the absence of a general internal human rights competence; and yet, as the previous paper demonstrated, the basis for such an internal competence is lacking at both the legal and the political level.

New Finnish Doctoral Dissertations in International Law 429 __________________________________________________________________ This paper provides a foundation for the more detailed examinations in the following two longer papers on different aspects of EU external human rights action, and in particular, its policy of human rights conditionality. The fourth paper focuses on conditionality as it applies in the context of enlargement, whereas the fifth turns to the broader application of the principle through ‘human rights’ or ‘essential elements’ clauses in Community agreements, and the incorporation of human rights and other universal or common values into EU development policy. Both papers illuminate the tension, when the EU seeks to apply human rights standards in the context of conditionality, between flexibility and the openendedness of the criteria applied on the one hand, and certainty and transparency on the other. This is particularly acute in the enlargement context, where commitments to inclusivity tend to favour flexibility and thus indeterminacy of the standards being applied. Although the tension is no doubt real, I am not wholly convinced that ‘the principle of a Union open to European States was fundamentally incompatible with the idea of making enlargement conditional …’ (p.30). A position of openness does not necessarily guarantee entry, but involves a commitment by the EU to assist candidate States in meeting the criteria it sets. One might indeed argue that true openness requires conditionality, at least of a certain kind. There are a number of critiques of enlargement conditionality.8 The problems are well-recognized: the very process of applying conditionality creates a clientalist relationship, one that is not based on the mutuality and equality that is a fundamental basis of EU membership. A highly directive conditionality, by substituting EU policy objectives for domestic policy goals, may undermine domestic legitimacy, and in the absence of real internalization of standards or goals have the effect of undermining the capacity for autonomous policy development. These critiques, I think, the author would largely share; however this thesis does not set out to analyze exhaustively either enlargement or conditionality and she does not discuss the broader aspects of either here. The paper’s originality lies in integrating this debate into an impressive study of the use of rights and values as a basis for European (Union) identity. The candidate states are required to conform to certain standards as part of their induction into the European Union, characterized as a system of ‘common values.’ What, though, are these values? Taking in turn human rights, democracy and the rule of law (including in this concept issues of legal approximation and good governance), the author demonstrates the indeterminacy of the Copenhagen political criteria (p.229). They are ‘too general, indeterminate and contested to provide identity or control’ (p.231). However, Leino-Sandberg recognizes the uses of indeterminacy: it avoids both exclusion and open conflict between different For example, ‘Report on Political Dimensions of the Accession Criteria’, No 1 in a Series of Workshops ‘Assessing the Accession Criteria’ (European Research Institute, the University of Birmingham, 30 November 2002), available on: <www.eri.bham.ac.uk/Phare/reports/Workshop1 report.pdf>. For a discussion of conditionality in the accession context, see further M.A. Vachudova, ‘The Leverage of International Institutions on Democratizing States: the Eastern Europe and the European Union, EUI Working Paper RSC No. 2001/33, IUE, Florence; C. Hillion, ‘Enlargement of the European Union: A Legal Analysis’ in A. Arnull and D. Wincott (eds) Accountability and Legitimacy in the European Union (Oxford University Press 2003); K.E. Smith, ‘The Evolution and Application of EU Membership Conditionality’ in M. Cremona (ed.) The Enlargement of the EU (Oxford University Press 2003).

8

Finnish Yearbook of International Law (Vol. XV, 2004) 430 __________________________________________________________________ interests, and it enables consensus. The price that is paid is that of an ambiguous identity, an enlargement process where the goals are vague and the overall aim or vision of the future of the Union does not move beyond abstract and generalized ideals. The key lies in achieving a balance between unity and diversity and this is ultimately a question of politics; indeed, incoherence as to the basis of European identity is ‘another name for the recognition of diversity,’ and uncertainty or indeterminacy is the basis for political debate (p.233). Human rights and the common values of the Copenhagen criteria are thus of limited use in managing the enlargement process, which is an essentially political process. However LeinoSandberg does not repudiate this conclusion: ‘After all, the European Union is not about creating an identity but about politics’ (p.235). The role of politics is one to which she will return in the final paper. In the fifth and final paper the thesis turns again to the issue of universality: this time examining it as a justification for the EU’s application of human rights conditionality to third countries. The overall approach of EU external human rights policy is outlined, and then its implementation, first in the development context, especially towards the ACP states in the Lomé and Cotonou Conventions, and second in relation to ‘strong states’ such as Australia, the USA and Japan. At one level these differences can be justified in terms of the different types of contractual relations involved (the EU does not conclude preferential agreements with the USA or Japan) but of course that does not really explain why the EU expects developing and transition states to adhere to values which it claims are simultaneously universal, common and peculiarly European. Leino-Sandberg explores the relationship in EU policy between human rights and the right to development; as she points out, while the right to development might have originated as an argument justifying development assistance, it has become a justification for requiring developing countries to espouse specific domestic policies, human rights being seen as a precondition for development (p.276). As this illustrates, although the argument presented here – that the EU’s policy of human rights conditionality is theoretically based on universality – can certainly be sustained, conditionality is really much more instrumentalist in origin, based on what the Union sees are the necessary conditions for successfully achieving its objectives, including economic, social and political development of its partners and stability and security in its neighbourhood. For this reason, more attention could have been paid to comparing the different contexts in which conditionality operates, especially the differences between enlargement and development-based conditionality. This is a probably inevitable casualty of the article-based format of the thesis. Conditionality seems to work best when there is a close relationship, either existing or desired, between the EU and its partners (for example, the candidate states, the Western Balkans, and possibly the European Neighbourhood Policy). This is not only because the incentives towards compliance are strong (although that surely plays a part) but also because the environment is one in which the ongoing dialogue necessary to underpin effective conditionality can be created and sustained. From the difficult question of the right to development it seems to be a short step to the ‘civilizing mission’ of Europe, with all the ambiguities that entails. It becomes clear that we need to identify what we mean by universalism and to

New Finnish Doctoral Dissertations in International Law 431 __________________________________________________________________ discriminate between false and genuine universals: ‘to the extent a universal concept of ‘human rights’ exists, finding agreement on its content requires genuine discussion and a fair process … Human rights are no substitute for political debate but require discussion, because their contents are contested.’ (p.296). This, it seems to me, is the true crux of the thesis. Values, Leino-Sandberg convincingly argues, cannot control political discretion or provide policy content, they cannot show either the goal or the route towards it; at best they can only ‘set a direction’ (p.70). More positively, values may provide a framework or context for dialogue and debate, as part of the process of creating a political Community. The EU is not the only polity which tries to work out, in its political debates, the relationship between its different values and the rights it espouses and what they mean for specific policy goals. What is (or could be) distinctive about the EU is the way in which it sets about doing this, the attempt to give voice to different levels of governance, and to balance diversity with just sufficient uniformity; the EU is not a static model but a dynamic experiment. True universality requires dialogue, openness, questioning, renegotiation (p.47, p.295). The most distinctive contribution made by the EU is likely to be not so much in formulating substantive rules as in promoting just processes of governance at all levels, both internally and externally, processes which are informed by the principles of inclusiveness, transparency and participation. This is not so much because the EU has been conspicuously successful but rather because it exemplifies the need for such processes. Here I think one could be more positive than Leino-Sandberg suggests: the imperfections and illogicalities in the EU’s position do not completely invalidate its activities. The subtitle of the thesis is important: the politics of human rights in the European Union. The thesis challenges a common assumption, that to speak of the ‘politics of human rights’ is to speak of compromise, of accepting the contingency of human rights, or even of using human rights as a weapon to achieve ulterior objectives, whereas they should be neutral and somehow above politics. In reality, total objectivity and absolute uniformity are impossible (and not even desirable). I find hopeful and heartening the conclusion that in fact, true universalism in human rights policy depends on engaging in political debate, on dialogue and contestation, on openness to differences of view and transparency so that preconceptions and assumptions can be tested. This thesis is, in fact, an object lesson is just such an approach. I have found it thought-provoking, sometimes surprising and always engaging, and have learned a great deal from it. Following my reading of this thesis and the defence that took place on 23 April 2005, I have no hesitation in recommending to the Faculty that this thesis be accepted, and the doctoral degree be granted to the candidate, Paivi Leino-Sandberg. This is an excellent and substantial piece of work that will do honour to the reputation of the Faculty of Law at the University of Helsinki. Marise Cremona University of London

Recent Developments and State Practice

Elements of Finnish State Practice 2003-2004 Juha Rainne*

Introduction This report includes selected parts of the Finnish state practice in the field of international law in 2003 and 2004. As in the previous reports published in this journal,1 treaty relations are illustrated with lists of treaties that have entered into force with respect to Finland during the reporting period. In addition, a review of the objections to reservations to treaties is included. The report also includes examples of Finnish legislation related to international law.

Selection of Finnish Legislation Related to International Law, Enacted in 2003-2004 2 Legislation Adopted by Virtue of the Sanctions Act Sanctions imposed by the UN Security Council and the EU are implemented at the national level by virtue of the Act on the Enforcement of Certain Obligations of Finland as a Member of the United Nations and of the European Union (‘Sanctions Act’, Act No 659/1967 as amended by Act No 824/1990, 705/1997, 191/2000, 882/2001 and 364/2002). The Act provides a basis for prompt implementation of provisions of EC sanctions regulations that are adopted on the basis of Article 60, 301 or 308 of the Treaty establishing the European Community. In situations where the Security Council resolutions are not implemented through EC regulations, the Act provides for a possibility to implement binding Security Council resolutions through a government decree on the enforcement of obligations arising from the applicable * Legal Officer, Unit for Public International Law, Ministry for Foreign Affairs. The selection of the issues as well as the views expressed are made in the author’s personal capacity and do not necessarily reflect those of the Ministry for Foreign Affairs. 1 For Finnish practice in 2002, see Anna Sotaniemi, XIII Finnish Yearbook of International Law (2002) 371-379. For 2001, see Anna Sotaniemi, XII Finnish Yearbook of International Law (2001) 461-467. 2 All translations of legislation are unofficial.

Finnish Yearbook of International Law (Vol. XV, 2004) 436 __________________________________________________________________ resolution. For practical reasons, and in order to avoid undesired parallel legislation, national decrees are not issued if the implementing EC regulation is expected to be adopted. Certain government decrees that had been adopted in the 1990’s by virtue of the Sanctions Act to implement UN Security Council resolutions had since become obsolete due to corresponding EU legislation. Thus, in 2002 and 2003 action was taken to repeal the government decrees concerning sanctions against Liberia, Sierra Leone, Somalia, Angola and Iraq,3 all adopted by virtue of the Sanctions Act. In cases where the EU is considered not to have competence to adopt implementing legislation, national decrees can still be issued by virtue of the Sanctions Act. This was done in 2003, when a government decree 4 was issued to implement at the national level the provisions of the Security Council resolution 1483(2003) concerning the transfer of funds to the Development Fund for Iraq, since the implementation of such an obligation did not fall within the Community competences.

Notifications of the Ministry for Foreign Affairs on Penal Provisions Applicable to Violations of Sanctions Regulations Referred to in Section 2a of the Sanctions Act5 In 2003, the Ministry for Foreign Affairs issued three notifications informing of the entry into force of the following EC regulations on sanctions against third countries or individuals or entities: Council Regulation (EC) No 147/2003 concerning certain restrictive measures in respect of Somalia6; Council Regulation (EC) No 1030/2003 concerning certain restrictive measures in respect of Liberia7; and Council Regulation (EC) No 1210/2003 concerning certain specific restrictions on economic and financial relations with Iraq and repealing Regulation (EC) No 2465/96 8. In 2004, four notifications informing of the entry into force of the following EC regulations were issued: Council Regulation (EC) No 131/2004 concerning 3 The decrees were repealed by the following government decrees: Liberia, decree of 7 November 2002/906; Sierra Leone, decree of 7 November 2002/907; Somalia, decree of 7 November 2002/908; Angola, decree of 19 December 2002/1232 and Iraq, decree of 28 May 2003/414. The government decree concerning Iraq (No 414/2003) was issued after the adoption of the Security Council resolution 1483(2003) that provided for the lifting of the Iraq sanctions (except the arms embargo) and imposed new measures, in particular financial sanctions. 4 Decree of 26 August 2003/757. 5 Information on the entry into force of EC Regulations as to the restrictions on economic relations with third countries and to the penal provisions applicable thereto shall be published through notifications by the Ministry for Foreign Affairs, Act No 705/1997 of 24 July 1997. See Päivi Kaukoranta, 67 Nordic Journal of International Law (1998) 321-333 for more details. 6 OJ No L 24 of 29 January 2003. See notification of the Ministry for Foreign Affairs No 113/2003 of 4 February 2003. 7 OJ No L 150 of 18 June 2003. See notification of the Ministry for Foreign Affairs No 713/2003 of 22 July 2003. 8 OJ No L 169 of 8 July 2003. See notification of the Ministry for Foreign Affairs No 845/2003 of 26 September 2003.

Elements of Finnish State Practice 2003-2004 437 __________________________________________________________________ certain restrictive measures in respect of Sudan9; Council Regulation (EC) No 234/2004 concerning certain restrictive measures in respect of Liberia and repealing Regulation (EC) No 1030/200310; Council Regulation (EC) No 872/2004 concerning further restrictive measures in relation to Liberia11; and Council Regulation (EC) No 1763/2004 imposing certain restrictive measures in support of effective implementation of the mandate of the International Criminal Tribunal for the former Yugoslavia (ICTY)12.

Act on the Exclusive Economic Zone of Finland Act on the Exclusive Economic Zone of Finland (Act of 26 November 2004/1058) entered into force on 1 February 2005. According to the Act, Finland establishes an exclusive economic zone (EEZ) comprising the part of the sea which is immediately adjacent to its territorial waters. The outer limits of the zone are determined by the agreements concluded by Finland with foreign States and the outer limit location of the zone is given by a government decree. The exclusive economic zone replaces the former continental shelf13 and the fishing zone14. In the EEZ the rights belonging to Finland remain mainly the same as before on the continental shelf and fishing zone. Additionally, Finland has the right to other activities aimed at the exploration and economic exploitation of the EEZ. Finland also has in the exclusive economic zone jurisdiction with regard to the protection of the marine environment and marine scientific research as provided for in international law. Further, Finland has an exclusive right to establish and use artificial islands and certain installations and other structures, as well as to authorize and regulate their establishment and use.

Finland’s Position on the War on Iraq In March 2003, the Government of Finland took a position on the war on Iraq considering, in particular, that the use of military force without Security Council authorisation was not acceptable. The press release of the Government Information Unit of 20 March 2003 reads as follows:

9 OJ No L 21 of 28 January 2004. See notification of the Ministry for Foreign Affairs No 80/2004 of 2 February 2004. 10 OJ No L 40 of 12 February 2004. See notification of the Ministry for Foreign Affairs No 197/2004 of 9 March 2004. 11 OJ No L 162 of 30 April 2004. See notification of the Ministry for Foreign Affairs No 414/2004 of 19 May 2004. 12 OJ No L 315 of 14 October 2004. See notification of the Ministry for Foreign Affairs No 1046/2004 of 26 November 2004. 13 Continental Shelf Act, No 149/1965. 14 Act on the Fishing Zone of Finland, No 839/1974.

Finnish Yearbook of International Law (Vol. XV, 2004) 438 __________________________________________________________________ This morning, on 20 March 2003, the meeting of the President of the Republic and the Cabinet Committee on Foreign and Security Policy considered the war that was launched on Iraq in the night. Finland regrets that the US and its allies have begun military action against Iraq. Use of military force without the UN Security Council’s specific authorisation is not acceptable. The ongoing war must not result in the marginalisation of the UN. It is obligatory that the role and responsibility of the UN and its organisations remain central in the drafting and implementation of the forthcoming decisions and measures.15

In her statement at the 59th session of the UN General Assembly, President of the Republic Tarja Halonen pointed out that ‘[t]here was not enough commitment to act within the boundaries of Security Council resolutions. Some nations resorted to use of force, which was not compatible with international law.’16

International Humanitarian Law At the 28th International Conference of the Red Cross and Red Crescent in December 2003 a number of specific humanitarian commitments for the period of 2004-2007 were undertaken voluntarily by the participants in the form of pledges. The Government of Finland together with the Finnish Red Cross undertook to develop effective tracing activities, which will both, prevent persons from going missing and enhance the possibilities to ascertain their fate. Finland undertook jointly with Sweden, Norway and Iceland a pledge that aims at the taking into consideration of international humanitarian law as one of the criteria on which arms transfer decisions are made. Finland also participates together with Sweden and Switzerland in a pledge that concerns the initiation of international discussions aiming to develop a shared understanding of how international humanitarian law should be applied to computer network attacks during armed conflict. In addition, Finland takes part in a number of joint pledges together with other EU member states. 17

Treaty Relations Treaties Brought into Force The compilation of conventions and agreements that entered into force for Finland in 2003 and 2004 is included in the Appendixes to this report. Press release 82/2003 of 20 March 2003 by the Government Information Unit. Statement by President of the Republic of Finland Tarja Halonen at the 59th Session of the UN General Assembly in New York on 21 September 2004. 17 For further information, see , last visited 18 September 2005. 15 16

Elements of Finnish State Practice 2003-2004 439 __________________________________________________________________

Reservations to Treaties Finland acceded on 10 October 1968 to the Convention and the Protocol relating to the Status of Refugees (FTS 77/1968 and 78/1968). At the time of accession the Government of Finland made reservations relating both to the Convention and the Protocol. The reservations concerned, inter alia, Article 7, paragraph 2; Article 8; Article 12, paragraph 1; Article 24, paragraph 1 (b) and paragraph 3; Article 25 and Article 28, paragraph 1. On 7 October 2004, Finland withdrew the said reservations, while the general reservation concerning nationals of Denmark, Iceland, Norway and Sweden and the reservation on Article 24, paragraph 3 remained.18 The reservations were withdrawn since they did not anymore correspond to the Finnish legislation or administrative practice nor were otherwise necessary.

Objections to Reservations to Multilateral Treaties Deposited by the UN Secretary-General Human Rights Conventions On 10 March 2003, Finland objected19 to the reservation made by Qatar to the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography. The relevant parts of the objection read as follows: The Government of Finland notes that the reservation made by Qatar which consists of a general reference to religious law without specifying its contents does not clearly define the extent to which Qatar commits itself to the Protocol and therefore creates serious doubts as to its commitment to fulfil its obligations under the Protocol. Such a reservation is subject to the general principle of treaty interpretation according to which a party may not invoke the provisions of its domestic law as justification for a failure to perform its treaty obligations. The Government of Finland also notes that the reservation of Qatar, being of too general a nature, raises doubts as to the full commitment of Qatar to the object and purpose of the Protocol, and wishes to recall that, according to the customary international law as codified in the Vienna Convention on the Law of the Treaties, a reservation incompatible with the object and purpose of the Convention shall not be permitted. The Government of Finland therefore objects to the reservation made by the Government of Qatar to the Protocol.

On 10 March 2003, Finland objected20 to the reservations made by Bahrain to the Convention on the Elimination of all Forms of Discrimination Against Women (Article 2, paragraph 2 of Article 9, paragraph 4 of Article 15 and Article 16). See notification of the Ministry for Foreign Affairs No 146/2004 of 12 November 2004. Secretary-General’s Depositary Notification C.N.235.2003.TREATIES-8 of 18 March 2003. 20 Secretary-General’s Depositary Notification C.N.238.2003.TREATIES-5 of 19 March 2003. 18 19

Finnish Yearbook of International Law (Vol. XV, 2004) 440 __________________________________________________________________ Similarly, Finland objected21 on 17 June 2003 to the reservations made by Syrian Arab Republic to the same Convention (Article 2, paragraph 2 of Article 9, paragraph 4 of Article 15 and to paragraphs 1(c), (d), (f) and (g) of Article 16). The texts of the two objections are similar to a great extent. The relevant parts of the objection to the reservation of Bahrain read as follows: The Government of Finland notes that a reservation which consists of a general reference to religious or other national law without specifying its contents does not clearly define to other Parties to the Convention the extent to which the reserving State commits itself to the Convention and therefore creates serious doubts as to the commitment of the receiving State to fulfil its obligations under the Convention. Such reservations are subject to the general principle of treaty interpretation according to which a party may not invoke the provisions of its domestic law as justification for a failure to perform its treaty obligations. The Government of Finland further notes that the reservations made by Bahrain, addressing some of the most essential provisions of the Convention, and aiming to exclude some of the fundamental obligations under it, are in contradiction with the object and purpose of the Convention. The Government of Finland also recalls Part VI, Article 28 of the Convention according to which reservations incompatible with the object and purpose of the Convention are not permitted. The Government of Finland therefore objects to the above-mentioned reservations made by the Government of Bahrain to the Convention. This objection does not preclude the entry into force of the Convention between Bahrain and Finland. The Convention will thus become operative between the two states without Bahrain benefiting from its reservations.

On 13 October 2004, Finland communicated statements22 regarding the declarations and reservations made by Turkey to the International Covenant on Civil and Political Rights (Article 27) and to the International Covenant on Economic, Social and Cultural Rights (paragraphs 3 and 4 of Article 13). Where applicable, the two statements communicated by Finland are similar. The relevant parts of the statement regarding the Turkish reservation to the International Covenant on Civil and Political Rights read as follows: The Government of Finland emphasises the great importance of the rights of minorities provided for in Article 27 of the International Covenant on Civil and Political Rights. The reference to the Constitution of the Republic of Turkey is of a general nature and does not clearly specify the content of the reservation. The Government of Finland therefore wishes to declare that it assumes that the Government of the Republic of Turkey will ensure the implementation of the rights of minorities recognised in the Covenant and will do its utmost to bring its national legislation into compliance with the obligations under the Covenant Secretary-General’s Depositary Notification C.N659.2003.TREATIES-13 of 26 June 2003. Secretary-General’s Depositary Notification C.N.1183.2004.TREATIES-15 of 17 November 2004; Secretary-General’s Depositary Notification C.N.1182.2004.TREATIES-6 of 17 November 2004.

21 22

Elements of Finnish State Practice 2003-2004 441 __________________________________________________________________ with a view to withdrawing the reservation. This declaration does not preclude the entry into force of the Covenant between the Republic of Turkey and Finland.

Rome Statute of the International Criminal Court On 8 July 2003, Finland objected23 to the interpretative declarations made by Uruguay to the Rome Statute of the International Criminal Court. The relevant parts of the objection read as follows: The Government of Finland has carefully examined the contents of these interpretative declarations, in particular the statement that ‘as a State party to the Rome Statute, the Eastern Republic of Uruguay shall ensure its application to the full extent of the powers of the State insofar as it is competent in that respect and in strict accordance with the Constitutional provisions of the Republic.’ Such a statement, without further specification, has to be considered in substance as a reservation which raises doubts as to the commitment of Uruguay to the object and purpose of the Statute. The Government of Finland would like to recall Article 120 of the Rome Statute and the general principle relating to internal law and observance of treaties, according to which a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. The Government of Finland therefore objects to the above-mentioned reservation made by the Eastern Republic of Uruguay to the Rome Statute of the International Criminal Court. This objection shall not preclude the entry into force of the Statute between Finland and Uruguay. The Statute will thus become operative between the two states without Uruguay benefiting from its reservation.

Counter Terrorism Conventions On 17 June 2003, Finland objected24 to the declaration made by Pakistan to the International Convention for the Suppression of Terrorist Bombings. Similarly, Finland objected25 on 29 April 2004 to the declaration made by Jordan to the Convention for the Suppression of the Financing of Terrorism (paragraph 1(b) of Article 2). Where applicable, the texts of the two objections are similar. The relevant parts of the objection to the declaration made by Pakistan read as follows: The Government of Finland is of the view that the declaration amounts to a reservation as its purpose is to unilaterally limit the scope of the Convention. The Government of Finland further considers the declaration to be in contradiction with the object and purpose of the Convention, namely the suppression of terrorist bombings wherever and by whomever carried out. Secretary-General’s Depositary Notification C.N.822.2003.TREATIES-11 of 11 August 2003. Secretary-General’s Depositary Notification C.N.658.2003.TREATIES-34 of 26 June 2003. 25 Secretary-General’s Depositary Notification C.N.531.2004.TREATIES-15 of 25 May 2004. 23 24

Finnish Yearbook of International Law (Vol. XV, 2004) 442 __________________________________________________________________ The declaration is, furthermore, contrary to the terms of Article 5 of the Convention according to which State Parties commit themselves to adopt measures as may be necessary to ensure that criminal acts within the scope of the Convention are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or similar nature and are punished by penalties consistent with their grave nature. The Government of Finland wishes to recall that, according to the customary international law as codified in the Vienna Convention on the Law of Treaties, a reservation incompatible with the object and purpose of the Convention shall not be permitted. It is in the common interest of states that treaties to which they have chosen to become parties are respected as to their object and purpose and that states are prepared to undertake any legislative changes necessary to comply with their obligations under the treaties. The Government of Finland therefore objects to the above-mentioned interpretative declaration made by the Government of the Islamic Republic of Pakistan to the Convention. This objection does not preclude the entry into force of the Convention between the Islamic Republic of Pakistan and Finland. The Convention will thus become operative between the two states without the Islamic Republic of Pakistan benefiting from its declaration.

Appendix I: International Treaties which Entered into Force for Finland in 200326 Multilateral Treaties Amendments to the International Convention for the Safety of Life at Sea, 1974, as amended, and International Code of Safety for High-Speed Craft, 2000, and International Fire Safety Systems Code, 5 December 2000 (FTS 5-6/2003)27 Agreement between the Kingdom of Denmark, the Republic of Finland, the Kingdom of Norway and the Kingdom of Sweden concerning support for industry cooperation in the defence materiel area, 9 June 2001 (FTS 12-13/2003) Amendment to article 43(2) of the Convention on the Rights of the Child, 12 December 1995 (FTS 16/2003)

The lists in the appendixes include the conventions and agreements published in the Finnish Treaty Series (FTS). Information on the agreements not published in the FTS is to be found in the FTS in the form of ‘Notifications of the Ministry for Foreign Affairs’. 27 The date indicates the time of signature or adoption of the agreement and the number in parenthesis refers to the numbering of the FTS. 26

Elements of Finnish State Practice 2003-2004 443 __________________________________________________________________ Amendments to Annex I to the Agreement on the International Carriage of Perishable Foodstuffs and on the Special Equipment to be used for such a Carriage (ATP), 15 May 2002 (FTS 17/2003) Treaty of Nice amending the Treaty on European Union, the treaties establishing the European Communities and certain related acts, 26 February 2001 (FTS 1819/2003) Amendments of the limitation amounts in the Protocol of 1992 to amend the International Convention on Civil Liability for Oil Pollution Damage, 1969, 18 October 2000 (FTS 21-22/2003) Amendments of the limits of compensation in the Protocol of 1992 to amend the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971, 18 October 2000 (FTS 23-24/2003) Convention No 184 concerning Safety and Health in Agriculture. Recommendation No 192 concerning Safety and Health in Agriculture, 21 June 2001 (FTS 2526/2003) Treaty on Open Skies, 24 March 1992 (FTS 39-40/2003) Annex IV to the Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships, 1973, as amended, 17 February 1978 (FTS 53/2003) Agreement between Denmark, Finland, Iceland, Norway and Sweden on the implementation of certain provisions concerning nationality, 14 January 2002 (FTS 60-61/2003)28 Protocol to the 1979 Convention on Long-range Transboundary Air Pollution on Persistent Organic Pollutants, 24 June 1998 (FTS 68/2003) Amendments to the International Regulations for Preventing Collisions at Sea, 1972, 29 November 2001, (FTS 71/2003) Amendments to the Protocol of 1988 relating to the International Convention for the Safety of Life at Sea, 1974, 24 May 2002 (FTS 73/2003) Amendments to the Guidelines on the enhanced programme of inspections during surveys of bulk carriers and oil tankers relating to the International Convention for the Safety of Life at Sea, 1974, 24 May 2002 (FTS 74/2003) Amendments to the International Convention for the of Life at Sea, 1974, 24 May 2002 (FTS 75/2003) Protocol to the 1979 Convention on Long-range Transboundary Air Pollution on Heavy Metals, 24 June 1998 (FTS 78/2003)

28

Unofficial translation.

Finnish Yearbook of International Law (Vol. XV, 2004) 444 __________________________________________________________________

Bilateral Treaties Exchange of notes constituting changes in the location of the frontier line as agreed upon in the re-examination of the demarcation of the State frontier between Finland and Norway carried out in 2000 (FTS 3/2003) Agreement between the Government of the Republic of Finland and the Government of the Republic of El Salvador on the Promotion and Protection of Investments, 20 May 2002 (FTS 10-11/2003) Agreement between the Government of the Republic of Finland and the Government of the Republic of Hungary for the employment of dependants of members of diplomatic mission, consular office or mission to an international organisation, 8 February 2003 (FTS 20/2003) Agreement between the Government of the Republic of Finland and the Government of the Republic of Morocco on the Promotion and Reciprocal Protection of Investments, 1 October 2001 (27-28/2003) Agreement between the Government of the Republic of Finland and the Government of the Republic of India on the Promotion and Protection of Investments, 7 November 2002 (FTS 29-30/2003) Agreement between the Government of the Republic of Finland and the Government of the State of Qatar on the Promotion and Protection of Investments, 12 November 2001 (FTS 36-37/2003) Agreement between the Government of the Republic of Finland and the Government of the Republic of Peru on the co-operation in the Environmental Project, Phase II, 21 April 2003 (FTS 44/2003) Agreement between the Government of the Republic of Finland and the Government of the Republic of Malawi on the co-operation in the Support to Forestry College Curriculum revision in Malawi, Tanzania and Zambia, 23 May 2003, 4 June 2003 (FTS 48/2003) Agreement between the Government of the Republic of Finland and the Government of the Russian Federation on the Settlement of Part of the Claims of Finland to Payments due by the Former Union of Soviet Socialist Republics, 28 March 2003 (FTS 49/2003) 29 Agreement between the Government of the Republic of Finland and the Government of the Republic of Tunisia on the promotion and protection of investments, 4 October 2001 (FTS 51-52/2003) Agreement between the Government of the Republic of Finland and the Government of the Kyrgyz Republic on Finnish assistance to environmental monitoring and management capacity building in Kyrgyz Republic, 4 December 2002 (FTS 54/2003) 29

Unofficial translation.

Elements of Finnish State Practice 2003-2004 445 __________________________________________________________________ Agreement between the Government of the Republic of Finland and the Government of Bosnia and Herzegovina on the co-operation in the education sector, 4 September 2003 (FTS 57-58/2003) Agreement on economic, commercial and technical cooperation between the Government of the Republic of Finland and the Government of the State of Qatar, 10 June 2002 (FTS 59/2003) Agreement between the Government of the Republic of Finland and the Government of the Kyrgyz Republic on Finnish assistance to a Lung Health Program in the Kyrgyz Republic, 4 December 2002 (FTS 62/2003) Project Agreement between the Government of the Republic of Finland and the Government of the Republic of Estonia concerning Paide Bioenergy JI Project, 10 October 2003 (FTS 65/2003) Agreement between the Government of the Republic of Finland and the Government of the Republic of Hungary on Co-operation in Prevention of and Combating Crime, in particular Organised Crime, 24 October 2002 (FTS 66/2003) Temporary agreement between the Republic of Finland and the Kingdom of Sweden to implement the obligations set forth in Directive 2000/60/EC of the European Parliament and the Council, 3 October 2003 (FTS 67/2003)30 Agreement between the Government of the Republic of Finland and the Government of the Republic of Poland on co-operation in prevention of and combating against organised crime and other crimes, 4 November 1999 (FTS 70/2003) Agreement between the Government of the Republic of Finland and the Government of Lao People’s Democratic Republic on the Co-operation in the Sustainable Forestry and Rural Development Project, 3 July 2003 (FTS 72/2003)

Agreements with International Organizations Memorandum of Understanding between the United Nations and the Government of Finland Contributing Resources to the United Nations Mission in Ethiopia/Eritrea (UNMEE), 9 May 2003 (FTS 46-47/2003) Grant Agreement between the Government of the Republic of Finland and the Eastern Nile Technical Regional Office, 15 September 2003 (FTS 58/2003) Agreement between the Republic of Finland and the Nordic Environment Finance Corporation on Baltic Sea Region Testing Ground Facility (temporary application), 22 December 2003 (FTS 79/2003)

30

Unofficial translation.

Finnish Yearbook of International Law (Vol. XV, 2004) 446 __________________________________________________________________

Appendix II: International Treaties which Entered into Force for Finland in 2004 Multilateral Treaties Agreement between Denmark, Finland, Norway and Sweden on the abolition of control documents in temporary coach and bus transport in accordance with Article 18 (1) of Council Regulation (EEC) No 684/92 of 16 March 1992 on common rules for the international carriage of passengers by coach and bus, 2 September 2003 (FTS 3/2004)31 Agreement on a Testing Ground for Application of the Kyoto Mechanisms on Energy Projects in the Baltic Sea Region, 29 September 2003 (FTS 4/2004) Agreement Establishing the International Organisation of Vine and Wine, 3 April 2001 (FTS 5-6/2004) Framework Agreement between the Nordic Countries on Health Care, 14 June 2002 (FTS 8/2004)32 Convention on the recognition of qualifications concerning higher education in the European region, 14 June 2002 (FTS 9-10/2004) Agreement between Finland, Norway and Sweden on the Educational Fund for the Arctic Area of the Nordic Countries, 20 December 2002 (FTS 15/2004)33 United Nations Convention against Transnational Organized Crime, 15 November 2000 (FTS 18,20/2004) Agreement between Denmark, Finland, Iceland, Norway and Sweden amending the Agreement of 12 June 1975 on a Nordic Cultural Fund, 5 April 2002 (FTS 2425/2004) Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the former Yugoslav Republic of Macedonia, of the other part, 9 April 2001 (FTS 27-28/2004) Protocol of 1996 to Amend the Convention on Limitation of Liability for Maritime Claims, 1976, 2 May 1996 (FTS 31-32/2004) Stockholm Convention on Persistent Organic Pollutants, 22 May 2001(FTS 34/2004) Treaty concerning the accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic

Unofficial translation. Unofficial translation. 33 Unofficial translation. 31 32

Elements of Finnish State Practice 2003-2004 447 __________________________________________________________________ of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union, 16 April 2003 (FTS 41-42/2004) 34 Additional Protocol to the Agreement between the Republic of Austria, the Kingdom of Belgium, the Kingdom of Denmark, the Republic of Finland, the Federal Republic of Germany, the Hellenic Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Portuguese Republic, the Kingdom of Spain, the Kingdom of Sweden, the European Atomic Energy Community and the International Atomic Energy Agency in implementation of Article III (1) and (4) of the Treaty on the Non-proliferation of Nuclear weapons, 22 September 1998 (FTS 52-53/2004) Protocol of 2002 to the Occupational Safety and Health Convention, 1981. Recommendation No 194 concerning the List of Occupational Diseases and the Recording and Notification of Occupational Accidents and Diseases, 20 June 2002 (FTS 54-55/2004) Convention, established by the Council in accordance with Article 34 of the Treaty on European Union, on Mutual Assistance in Criminal Matters between the Member States of the European Union, 29 May 2000 (FTS 56-57/2004) Decision of the Council, meeting in the composition of the Heads of State or Government of 21 March 2003 on an amendment to Article 10.2 of the Statute of the European System of Central Banks and of the ECB (2003/223/EC), 21 March 2003 (FTS 61-62/2004) Civil Law Convention on Corruption, 4 November 1999 (FTS 64-65/2004) Agreement on Trade, Development and Cooperation between the European Community and its Member States, on the one part, and the Republic of South Africa, on the other part, 11 October 1999 (FTS 67-68/2004) Convention for the Unification of Certain Rules for International Carriage by Air, 28 May 1999 (FTS 76,78/2004) Amendments to the Annex to the International Convention for the Safety of Life at Sea, 1974, 12 December 2002 (FTS 79-80/2004) Amendments to the International Convention for the Safety of Life at Sea, 1974, and the INF Code, 16 December 2002 (FTS 85/2004) International Treaty on Plant Genetic Resources for Food and Agriculture, 3 November 2001 (FTS 89-90/2004) Euro-Mediterranean Agreement establishing an Association between the European Communities and their Member States, of the one part, and the Arab Republic of Egypt, of the other part, 25 June 2001 (FTS 91-92/2004)

34

The original title of the Treaty includes the names of the 25 contracting parties.

Finnish Yearbook of International Law (Vol. XV, 2004) 448 __________________________________________________________________ Agreement between the States Parties to the Convention for the Establishment of a European Space Agency and the European Space Agency for the Protection and the Exchange of Classified Information, 19 August 2002 (FTS 94-95/2004) Protocol relating to an amendment to the Convention on International Civil Aviation, Montreal, 6 October 1980 (FTS 99-100/2004) Amendment to Article I of the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (CCW), 21 December 2001 (FTS 102103/2004) Convention Defining the Statute of the European Schools, 21 June 1994 (FTS 105106/2004) Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, 10 September 1998 (FTS 107-108,112/2004) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, 25 June 1998 (FTS 121-122/2004) Cartagena Protocol on Biosafety to the Convention on Biological Diversity, 29 January 2000 (FTS 129-130/2004) Protocol relating to an amendment to the Convention on International Civil Aviation, 30 September 1977 (FTS 134/2004) Nordic Convention on social security, 18 August 2003 (FTS 135-136/2004) Additional Protocol to the European Agreement on the Transmission of Applications for Legal Aid, 4 October 2001 (FTS 137/2004) Convention, drawn up on the basis of article K.3 of the Treaty on European Union, on mutual assistance and cooperation between customs administrations, 18 December 1997 (FTS 147-148/2004) Second Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, 26 March 1999 (FTS 151-152/2004) Agreement Relating to the International Telecommunications Satellite Organization, Amendment to the Operating Agreement, 13-17 November 2000 (FTS 153154/2004) Amendments to the Constitution of the International Telecommunication Union and the Convention of the International Telecommunication Union, 18 October 2002 (FTS 155/2004) Amendments to the Protocol of 1988 relating to the International Convention on Load Lines, 1966, 5 June 2003 (FTS 156/2004)

Elements of Finnish State Practice 2003-2004 449 __________________________________________________________________ Amendments to the Guidelines on the Enhanced Programme of Inspection During Surveys of Bulk Carriers and Oil Tankers, related to the International Convention for the Safety of Life at Sea, 1974, 5 June 2003 (FTS 157/2004) Amendment to the Article 12 of the Agreement Concerning the Adoption of Uniform Conditions for Periodical Inspections of Wheeled Vehicles and the Reciprocal Recognition of Such Inspections, 1 March 2004 (FTS 158/2004) Amendment to Article 22, paragraph 1 of the Patent Cooperation Treaty, 3 October 2001 (FTS 168-169/2004) Protocol amending the Convention of 23 July 1990 on the elimination of double taxation in connection with the adjustment of profits of associated enterprises, 25 May 1999 (FTS 170-171/2004) Agreement between Denmark, Estonia, Finland, Iceland, Latvia, Lithuania, Norway and Sweden concerning the Nordic Investment Bank, 11 February 2004 (FTS 174175/2004)

Bilateral Treaties Project Agreement between the Government of the Republic of Finland and the Government of the Republic of Estonia concerning Pakri Wind Farm JI Project, 9 January 2004 (FTS 1/2004)35 Agreement between the Republic of Finland and the Kyrgyz Republic for the avoidance of double taxation with respect to taxes on income, 3 April 2003 (FTS 13-14/2004) Agreement between the Government of the Republic of Finland and the Government of the Republic of Estonia on joint implementation of emission reductions of greenhouse gases, 17 December 2002 (FTS 22-23/2004) Agreement between the Republic of Finland and the Republic of Slovenia for the avoidance of double taxation with respect to taxes on income, 19 September 2003 (FTS 69-70/2004) Agreement between the Government of the Republic of Finland and the Government of the Islamic Republic of Iran on the Promotion and Protection of Investments, 4 November 2002 (FTS 81-82/2004) Agreement between the Government of the Republic of Finland and the Government of the Oriental Republic of Uruguay on the Promotion and Protection of Investments, 21 March 2002 (FTS 83-84/2004) Agreement between the Government of the Republic of Finland and the Government of the Republic of Lithuania on International Road Transport, 9 November 1999 (FTS 86-87/2004) 35

Translation of the title of the Agreement as submitted to the United Nations Secretary-General.

Finnish Yearbook of International Law (Vol. XV, 2004) 450 __________________________________________________________________ Agreement between the Government of the Republic of Finland and the Government of the Federal Republic of Germany on the Mutual Protection of Classified Information, 25 February 2004 (FTS 96-97/2004) Agreement between the Government of the Republic of Finland and the Government of the Republic of Moldova on International Road Transport, 24 June 1997 (FTS 113-114/2004) Agreement between the Government of the Republic of Finland and the Government of the Republic of Slovenia on International Transport of Passengers and Goods by Road, 29 May 2002 (FTS 115-116/2004) Agreement between the Government of the Republic of Finland and the Government of the Republic of Uzbekistan on International Road Transport, 4 November 1997 (FTS 117-118/2004) Agreement between the Government of the Republic of Finland and the Government of the Republic of Kazakhstan on International Road Transport and Protocol, 7 February 1996 (FTS 119-120/2004) Agreement between the Government of the Republic of Finland and the Government of Turkey on co-operation in crime prevention and combating crime, 13 January 2004 (FTS 139/2004) Agreement between the Government of the Republic of Finland and the Government of the Russian Federation on the building of a road in order to secure the road traffic between the border-crossing point of Nuijamaa (Republic of Finland) for international road traffic and the border-crossing point of Brusnitshnoje (Russian Federation) for international road traffic in relation to the moving of the border-crossing point of Nuijamaa, 5 March 2004 (FTS 160161/2004)36 Agreement between the Republic of Finland and the Kyrgyz Republic on the Promotion and Protection of Investments, 3 April 2003 (FTS 162-163/2004)

Agreements with International Organizations Agreement between the Government of the Republic of Finland and African Union on support to the African Union Peace Fund, 30 December 2003 (FTS 7/2004) Agreement between the Government of the Republic of Finland and the Organisation for the Prohibition of Chemical Weapons on the privileges and immunities of the OPCW, 10 February 2003 (FTS 59-60/2004) Agreement between the Republic of Finland and the Nordic Environment Finance Corporation on Baltic Sea Region Testing Ground Facility, 22 December 2003 (FTS 71-72/2004)

36

Translation of the title of the Agreement as submitted to the United Nations Secretary-General.

Elements of Finnish State Practice 2003-2004 451 __________________________________________________________________ Agreement between the Government of the Republic of Finland and the European Southern Observatory concerning the accession to the Convention establishing a European Organisation for Astronomical Research in the Southern Hemisphere and related terms and conditions, 9 February 2004 (FTS 73-74/2004) Agreement between the Government of the Republic of Finland and the Intergovernmental Authority on Development on Financial Support to the operations of the IGAD Secretariat on Peace in the Sudan and IGAD Somali National Reconciliation Conference Secretariat, 5 May 2004 (FTS 75/2004) Agreement between the Government of the Republic of Finland and the Palestinian Authority on the Co-operation in the Palestinian Territories Water and Sanitation Project, Phase II, 3 August 2004 (FTS 104/2004)37

37

Unofficial translation.

GENERAL INFORMATION FOR AUTHORS The editors of the Finnish Yearbook of International Law welcome unsolicited and unpublished contributions of articles, notes and book reviews related to international law. Please send an electronic version of your manuscript to the Yearbook at [email protected]. If this is not possible, the editors will consider a hard copy; the response, however, will take longer. In such cases, please send one paper copy of your manuscript together with a diskette to: Executive Editor Finnish Yearbook of International Law Faculty of Law P.O. Box 4 (Yliopistonkatu 3) FIN-00014 University of Helsinki Finland Manuscripts should be submitted in Microsoft Word for Windows or a later version of Microsoft Word. As to style and formatting, authors are invited to follow the Yearbook’s house style as set below; a style sheet may also be obtained from the editors at [email protected]. Individual manuscripts will often have features not dealt with in these notes, and in such cases authors are urged to consult the Yearbook editors at the earliest possible stage. Please remember that consistency will increase the speed with which the articles are edited as well as the overall efficiency of the production process. Spelling, Punctuation and General Style (a) We prefer British spelling and hope that you follow the Oxford English Dictionary or the Concise Oxford Dictionary in your manuscript. Where there is a choice we prefer the endings -ize and -ization to -ise and -isation. (For guidance on French-language manuscripts, please contact the Yearbook.) (b) As for punctuation, we would encourage you to use single quotation marks. Double quotation marks are to be used inside single quotation marks for a quote within a quote. (c) Capitalization. We prefer lower case wherever possible, and use capitals only where essential. The word ‘Act’ should always be capitalized, even in non-specific references, to avoid ambiguity, but ‘bill’ can be lower case. Unless a specific court is referred to by name, ‘court’ is normally lower case, as is ‘judge’ and similar generic terms. (In headings we prefer the use of initial capitals, see below.) (d) Italicization. Please keep italics to a sensible minimum. Set in italics the names of cases (Missouri v. Holland, ERTA judgment, LaGrand case); the titles of published books (Koskenniemi’s book From Apology to Utopia); and the titles of periodicals (European Journal of International Law). Short foreign phrases or individual words (Cour de Cassation) should also be set in italic. However, Latin words and all familiar and ‘Anglicized’ words should be set in Roman. Thus, we prefer not to italicize the following words and phrases: ad hoc, bona fide, caveat, de facto, de jure, dicta, dictum, ex officio, gratis, habeas corpus, intra vires, mala fides, mandamus, per se, prima facie, sui generis and ultra vires.

Finnish Yearbook of International Law (Vol. XV, 2004) 454 __________________________________________________________________ (e) Generally, abbreviations should be followed by a full stop (Doc., No., para., ed.) unless the abbreviation includes the last letter of the word (paras, eds). Where a shortened form is an acronym in capital letters, no full stops are required (UN, WHO, EEC, ECHR). Acronyms should be introduced when first appearing (e.g., ‘Global Environment Facility (GEF)’ or ‘Community Charter of the Fundamental Social Rights of Workers (hereinafter the ‘Social Charter’)’). While the titles of periodicals should not be abbreviated but given in full, the titles of certain law reports and official journals may be abbreviated (ECR, CMLR, ECHR, OJ). (f) Figures and numerals are to be spelled out from one to ten (except in page and other similar references); use numerals for 11 and greater numbers. Also use numerals throughout for dates, times and ages of people. Spell out all figures beginning a sentence. Spell out fractions, e.g. ‘two-thirds’, ‘three-quarters’. General Layout and Pagination (a) All copies should be typed in the style of the Yearbook on one side of the paper only (preferably A4). (b) Please double-space all copy, including footnotes. (c) You should leave generous margins at top, bottom, left and right: a margin of at least 2,5 cm on the left hand side. Remember that the editors will need to make marks in these margins. (d) The first page should contain the full title of the article; author’s full name; affiliation; address; telephone and fax numbers; and e-mail address. Notes and Reference Systems (a) Please keep notes brief, giving source references with as little additional matter as possible. Discursive notes should be avoided by incorporating the material into the main text where possible, or omitting it altogether. (b) Be clear and consistent from note to note. Make sure that every reference corresponds with the details such as the form and spelling of the author’s name; the date of publication; the wording, spelling, punctuation and capitalization of the title; etc. You are responsible for the accuracy of all citations. (c) For cross-references in the notes, we use ‘supra’ and ‘infra’. Op. cit., loc. cit. and idem should not be used as forms of reference. Ibid. may be used if desired: it must always refer to the immediately preceding reference only. e.g. See supra text accompanying notes 3-5. e.g. See infra notes 100-102 and accompanying text. e.g.: Cf. Locke, Two Treatises, supra note 8, at 35

(d) Footnote indicators should follow all punctuation. e.g.: The Court first formulated the notion in the Barcelona Traction case of 1970.1

General Information for Authors 455 ___________________________________________________________________ The Reference System Please use the following system as a model for laying out references. A source should be given a full reference the first time a work is mentioned. The full note reference should include the following information: Full References to Books – author’s/editor’s first name(s) or initials – author’s surname – complete title (including subtitle, if any, which is to be separated from the main title by a colon) – editor, compiler or translator, if any – series title, if any – edition, if not the original – number of volumes, if applicable – publisher’s name – place of publication (but not essential if place of publication is also part of publisher’s name) – date of publication – volume number (preferably in roman numbers) – page number(s) (without p. or pp.) e.g. Ian MacLeod, I.D. Hendry and Stephen Hyett, The External Relations of the European Communities: a manual of law and practice (Clarendon Press: Oxford, 1996) at 231. e.g. Jean Combacau, Le pouvoir de sanction de l’ONU: étude théorique de la coercition non militaire (Pedone: Paris, 1974) at 9. e.g. Karl Zemanek, ‘What is “State Practice” and Who Makes It?’ in Ulrich Beyerlin, Michael Bothe, Rainer Hofmann and Ernst-Ulrich Petersmann (eds.), Recht zwischen Umbruch und Bewahrung – Festschrift für Rudolf Bernhardt (2nd edn, 3 vols, Springer: Berlin, 1995), vol. II, 289–306 at 294. e.g. Gregory H. Fox and Brad Roth (eds.), Democratic Governance and International Law (Cambridge University Press, 1996) at 96. e.g. Carl Schmitt, The Concept of the Political (first published 1932) (translated and with an introduction by George Schwab, University of Chicago Press, 1996) at 79. e.g. John Locke, Two Treatises of Government (first published 1690) (Peter Laslett ed., 2nd edn, Cambridge University Press, 1967) at 137-39. e.g. D. Dyzenhaus (ed.), Law as Politics: Carl Schmitt’s Critique of Liberalism (Duke University Press: Durham and London, 1998) at 6.

Full References to Journal Articles – author’s first name(s) or initials – author’s surname – title of the article (with inverted commas) – volume number (in arabic numerals) – title of the journal – date of volume

Finnish Yearbook of International Law (Vol. XV, 2004) 456 __________________________________________________________________ – –

page number(s), if available (without p. or pp.) Note also: (1) the title of the journal should be given in full and be italicized; (2) French and Italian article titles and journal titles often have the first word beginning upper case, but thereafter lower case (see the second example below).

e.g. Hilary Charlesworth, ‘Feminist Methods in International Law’, 93 American Journal of International Law (1999) 379-94. e.g. Olivier Corten and François Duboisson, ‘L’hypothèse d’une règle émergente fondant une intervention militaire sur une “autorisation implicite” du Conseil de sécurité’, 104 Revue générale de droit international public (2000) 873-910 at 888. e.g. Jan Klabbers, ‘Cat on a Hot Tin Roof: The World Court, State Succession, and the Gabÿikovo-Nagymaros Case’, 11 Leiden Journal of International Law (1998) 345-55 at 348. e.g. Gerry Simpson, ‘On the Magic Mountain: Teaching Public International Law’, 10 European Journal of International Law (1999) 70. e.g. D. Z. Cass, ‘Navigating the Mainstream: Recent Critical Scholarship in International Law’, 65 Nordic Journal of International Law (1996) 337 at 380.

Newspapers, Bulletins, Newsletters, etc. Articles from newspapers, bulletins, newsletters etc. should be in the form: e.g. John Dainton, ‘The World: Intervening with Elan and No Regrets’, New York Times, 26 June 1994, at D3.

Full References to Unpublished Material (including unpublished theses or dissertations) – author’s first name(s) or initials – author’s surname – title of document (with inverted commas) – volume or batch number, where applicable – name of collection, if known – folio number, or call number, if known – depositary and where located (or academic institution with date for PhD theses and dissertations) e.g. S. Marks, ‘The Riddle of All Constitutions: A Study of Democratic Ideas in International Law’, PhD thesis, University of Cambridge (1996) at 117.

Website/Internet References The Website/Internet reference should give the full title of the material referred to, following book/journal/document citation style (see above). The website address is to be surrounded by chevrons and the URL address omitting ‘http://’. The date of the material referred to on the website should also be given. For example: Maria Urruzola, ‘In the name of Human Rights Big Brother’s name was NATO’, <www.lolapress.org/artenglish/urrue11.html> (accessed 10 May 2001).

General Information for Authors 457 ___________________________________________________________________ Short Titles Subsequent citations in the notes to a source already given in full should take a shortened form. A shortened reference includes only the last name of the author and the short title of the book (containing the key word or words from the main title, so as to make the reference easily recognizable and not to be confused with any other work), followed by a cross-reference supra or infra to the location of the full reference and the page number of the reference. Shortened References to Books – author’s surname – short title of the book – volume number, if applicable – page number(s) (without p. or pp.) Short titles for the examples given above would be: e.g. MacLeod, Hendry and Hyett, External Relations, supra note 6. e.g. Combacau, Le pouvoir de sanction, infra note 100, at 900. e.g. Zemanek, ‘State Practice’, supra note 3, at 297. e.g. Fox and Roth, Democratic Governance, infra note 60, at 18–23. e.g. Schmitt, Political Theology, supra note 41. e.g. Locke, Two Treatises, supra note 20, at 36. e.g. Dyzenhaus, Law as Politics, supra note 12, at 56.

Shortened References to Journal Articles – author’s surname – short title of the article – page number(s) (without p. or pp.) e.g. Charlesworth, ‘Feminist Methods’, supra note 7, at 380. e.g. Corten and Duboisson, ‘L’hypothèse’, supra note 6. e.g. Klabbers, ‘Hot Tin Roof’, infra note 126, at 350. e.g. Simpson, ‘Magic Mountain’, supra note 60, at 76. e.g. Cass, ‘Navigating the Mainstream’, supra note 1, at 79.

Shortened References to Unpublished Material (including unpublished theses or dissertations) – author’s surname – short title – page number(s) e.g. Marks, ‘The Riddle’, infra note 99, at 72.

Finnish Yearbook of International Law (Vol. XV, 2004) 458 __________________________________________________________________ Headings We do not normally expect more than three levels of heading within an article. Headings should not be numbered, and will instead be distinguished typographically by typeface size and the use of bold, italics, etc. In headings we prefer the use of initial capitals for all words except prepositions and articles, and all words that contain five letters or more. Quotations (a) As a guideline, quotations of more than about fifty words should be set off (i.e. indented, no inverted commas, with an extra space above and below) from the main text; those of fewer than fifty words should run on in the text inside inverted commas. For quotes within the displayed quote, use double quote marks. (b) Quotations should be kept to a minimum, except where length is indispensable for a close analysis. (c) Omission points should be styled as three spaced points (i.e. three periods separated by spaces and set off by a space before the first and after the last period). Omission points should not be included at the beginning or end of quotations. When used within quotations, omit all punctuation (including full points) immediately prior to the omission points. (d) When a letter must be changed from upper to lower case, or vice versa, enclose it in brackets. Substituted words or letters and other inserted material should also be bracketed. Example: ‘[T]he Court cannot remedy a deficiency if, in order to do so, it has to exceed the bounds of [normal judicial activity].’

(e) Quotations must be verbatim from the original source, even if the original contains an error; this can be identified by the use of ‘[sic]’. Authors are responsible for the accuracy of all quotations and are requested to check them with particular care. (f) Authors are responsible for obtaining permission where needed to cite another author’s material. (g) Emphasis by the author (in italics) in a quoted passage should be explained in the footnote: ‘(emphasis added)’. Emphasizing by the use of bold is to be avoided. An exception, however, applies to quoted passages where the original already contains certain emphasized passages in italics and the author wishes to add (other) emphasis. The corresponding footnote should then contain the following explanation: ‘(italic emphasis in the original, bold emphasis added)’. Where the author wishes to omit an emphasis in a quoted passage, this should be explained in the appropriate footnote: ‘(emphasis omitted)’. (h) When quotation in foreign languages is essential, it is preferable in most cases to quote in the original and follow this directly with an English translation in brackets. If in doubt, consult the Yearbook editors. Remember to specify whether the material was translated by you or someone else. Citation of International Treaties Whenever a treaty is referred to, the first citation ought to give (as a footnote) its full title, its place of signature, its date of signature, the date (where applicable) it

General Information for Authors 459 ___________________________________________________________________ came into force, and a citation for where the material can be consulted (e.g., International Legal Materials, United Nations Treaty Series, European Treaty Series, etc.). Example Vienna Convention on the Law of Treaties, Vienna, 23 May 1969, in force 27 January 1980, 1155 United Nations Treaty Series 331; (1969) 8 International Legal Materials 679.

Subsequently, this can be referred to simply as: Article 2 of the Vienna Convention Use the full word ‘Article’ in the text, but you can abbreviate it to ‘Art.’ (plural ‘Arts’) in the footnotes. An ‘Article’ of an international treaty will conventionally have a capital ‘A’. Where Articles are divided into numbered paragraphs, we prefer to cite these as, for example: Article 25(3); and Article VI(5) rather than as: Article 25, para. 3; or Article VI, para. 5 Where Articles are divided into unnumbered paragraphs, these will need to be cited as, for example: Article 8, second paragraph (Note that it is ‘second paragraph’ rather than ‘paragraph 2’.) Use the full word ‘paragraph’ in the text, but you can abbreviate it to ‘para.’ (plural ‘paras’) in the footnotes. Citation of EC Documents and Texts Court of Justice European Community cases are numbered as they are registered at one of the two Community courts – the European Court of Justice (ECJ) and the Court of First Instance (CFI, established in 1989). Since that date, ECJ cases are prefixed by ‘C-’ and CFI cases are prefixed by ‘T-’. Before the establishment of the CFI, ECJ numbers had no prefix. Cite a case before the ECJ or the CFI to the European Court Reports (ECR); it is advisable to cite also to Common Market Law Reports (CMLR), if CMLR has reported the case. Where a particular year of the ECR report is divided into more than one volume, the volume number is given in upper case roman before the page number, e.g. [1988] ECR II-1234. (See the last two examples below.) Volume I contains ECJ cases and volume II contains CFI cases. Where a particular year of the CMLR report is divided into more than one volume, the volume number is given as an arabic number before the ‘CMLR’, e.g. [1988] 2 CMLR 1234. Examples Case 6/64, Flaminio Costa v. ENEL [1964] ECR 585 Case 314/85, Firma Foto Frost v. Hauptzollamt Lubeck-Ost [1987] ECR 4199 Case 257/87, Commission of the European Communities v. Council of the European Communities [1989] ECR 259

Finnish Yearbook of International Law (Vol. XV, 2004) 460 __________________________________________________________________ Joined Cases 142/80 and 143/80, Amministrazione Delle Finanze Dellostato v. Essevi [1981] ECR 1413 at 1431 Case C-159/90, Society for the Protection of Unborn Children Ireland Ltd v. Stephen Grogan [1991] ECR I-4685 Case T-194/94, Carvel and Guardian Newspaper v. Council [1995] ECR II-2765, [1995] 3 CMLR 359.

Council, Commission and European Parliament Documents Official Journal references should be (in an English-language manuscript) to the English-language version of the Official Journal (OJ) and should always be given whenever EC material (Directives, Regulations, Commission Decisions and Commission Notices) is first referred to (subsequent references within the same chapter to the same material need not be referenced again). Official Journal references can be in the form of either: OJ 1985 No. L372, 31 December 1985, at 5

or: OJ 1985 No. L372/5

Whichever style is used, it should be used consistently. Examples Article 8(2) of the Merger Control Regulation, Council Regulation 4064/89, OJ 1989 No. L395, at 21 Council Directive 89/622/EEC of 13 November 1989 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the labelling of tobacco products, OJ 1989 No. L359, 8 December 1989. Council Directive 87/102/EEC of 22 December 1986 on consumer credit, OJ 1987 No. L42, 12 February 1987

Note that the substantive description of the Directive (e.g., ‘on the approximation of the laws, regulations and administrative provisions of the Member States concerning the labelling of tobacco products’) is in lower case. Citation of ECHR Documents and Texts European Court of Human Rights Cite a case before the European Court to European Court of Human Rights, Reports of Judgments and Decisions (ECHR). For older decisions, the cases may also be cited to European Court of Human Rights, Series A or B (e.g., ECHR Series B). You may also cite a case to the European Human Rights Reports (EHRR). As some earlier volumes of ECHR contain only one case, citation to a beginning page is unnecessary, and all pertinent page numbers may be indicated directly ‘at’. Cite cases by case name, volume number, reporter, page number where applicable and year. Kampanis v. Greece, ECHR (1995), No. 318, 29, at 35. Handyside v. United Kingdom, ECHR Series A (1976), No. 24, at 21-23. Tyrer v. United Kingdom, ECHR Series A (1976), No. 26; 2 EHRR 1.

General Information for Authors 461 ___________________________________________________________________ In cases where the applicant’s name is not disclosed it is indispensable that the application number or at least the year be quoted in all references. X and Y v. The Netherlands (Application 8978/80), 8 EHRR (1985) 235.

If an official report of a recent case before the Court is not available, materials may be cited to the Court’s official website <www.echr.coe.int>. European Commission of Human Rights Before 1999, cases were also heard before the now-defunct European Commission on Human Rights. These cases should be cited to Decisions and Reports of the European Commission of Human Rights (Decisions & Reports) or to the Yearbook of the European Convention on Human Rights or to the European Human Rights Reports (EHRR): Kröcher and Möller v. Switzerland (Application No. 8463/78), 26 Decisions & Reports (1982) 24. Iversen v. Norway, 7 Yearbook of the European Convention on Human Rights (1963) 278, at 280.

Citation of United Nations and League of Nations Documents and Texts Resolutions General Assembly GA Res. 832 (IX), 18 December 1954 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the UN, GA Res. 2625 (XXV), 24 October 1970.

From the 31st session the session number is cited in arabic numerals: GA Res. 41/133, 4 December 1986

Security Council SC Res. 181, 7 August 1963

Or SC Res. 181 (1963)

ECOSOC First and second session: ECOSOC Res. 1/8, 15 February 1946 ECOSOC Res. 2/24

Afterwards until 1978 (63rd session): ECOSOC Res. 801 (XXX), 21 December 1966

From 1978: ECOSOC Res. 3, 4 May 1981 Or, if no date is indicated, ECOSOC Res. 1981/3

Documents UN documents (including documents of all the UN subsidiary bodies) should be given their full UN Doc. reference number on first citation.

Finnish Yearbook of International Law (Vol. XV, 2004) 462 __________________________________________________________________ Annual Report of the Secretary-General on the Work of the Organization, UN Doc. A/45/870 (1990), Annex, at 10. Renewing the United Nations: A Programme for Reform, Report of the Secretary-General, UN Doc. A/51/950 (14 July 1997), paras 170 and 172. Report of the International Law Commission on the Work of Its Fifty-second Session, UN GAOR, 55th Sess., Supp. No. 10, ch. IV, UN Doc. A/55/10 (2000). Alain Pellet, First Report on the Law and Practice Relating to Reservations to Treaties, UN Doc., A/CN.4/470 (30 May 1995), para. 109. Mpandanjila v. Zaire (No. 138/83), Selected Decisions of the Human Rights Committee under the Optional Protocol, UN Doc. CCPR/C/OP/2 (1983) Vol. II, at 164.

Cases Cite a case before the International Court of Justice (ICJ) or the Permanent Court of International Justice (PCIJ) or the Permanent Court of Arbitration by the case name; the names of the parties; the name and the year of the publication in which the decision is found; the page on which the case begins and the page you are referring to. Give the case name as found on the first pages of the report. If an official report of a recent case before the ICJ is not available, materials may be cited to the Court’s official website <www.icj-cij.org>. Examples: Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports (1971) 16, (dissenting opinion of Judge Fitzmaurice) 220, at 294. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States) (Provisional Measures), ICJ Reports (1984) 169, at 433-34, para. 93. Gabÿikovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports (1997) 7, (separate opinion of Vice-President Weeramantry) 88, at 102. Nationality Decrees in Tunis and Morocco, Advisory Opinion, PCIJ Series B, No. 4 (1923) 8. The Case of the SS Lotus (France/Turkey), PCIJ Series A, No. 10 (1927) 4, at 23. Rights of Minorities in Upper Silesia (Minority Schools) (Germany v. Poland), PCIJ Series A, No. 15 (1928) 54, (dissenting opinion of Judge Huber) 48, at 53. Case Concerning the Air Service Agreement of 27 March 1946 between the United States of America and France (France/United States), 18 Reports of International Arbitral Awards (1978) 417, at 428.

The cases before the International Criminal Tribunal for the former Yugoslavia (ICTY) are to be cited as follows: Prosecutor v. Duško Tadiý, Case No. IT-94-I-A, ICTY Appeals Chamber, Judgment (15 July 1999) para. 84. Prosecutor v. Goran Jelisic, Case No. IT-95-10-A, ICTY Appeals Chamber, Judgment (5 July 2001) (separate opinion of Judge Nieto-Navia) para 5. Prosecutor v. Slavko Dokmanovic et al., Case No. IT-95-13a-PT, ICTY Trial Chamber, Decision on the Motion for Release by the Accused Slavko Dokmanovic (22 October 1997) para 34.

General Information for Authors 463 ___________________________________________________________________ Domestic Case Law For domestic case law, use a style of citation of cases that is common in the particular country and be consistent in using that style. If the case has been reported in International Law Reports, the reference should be added: the readers are more likely to have access to these than national reports. For further guidance, please contact the Yearbook. On the Editing Process Once you have submitted your manuscript as described above, and once it has been approved by the Yearbook and any referee the Yearbook may want to consult, editing can begin. A group of editors will be assigned to your article. They will work through the manuscript, reading it for sense and consistency in presentation and argument as well as checking that such things as notes are all complete and clearly presented. If material is found still to be missing or the manuscript falls short of the standards outlined in these notes, we may have to return the manuscript to you for amendment. We reserve the right to make alterations and corrections to conform with both the general style of the Yearbook and accepted rules of grammar and syntax. Nothing of substance will be changed on your manuscript without your knowledge. Eventually, you will receive proofs for correction. You will kindly be asked to keep corrections to a minimum. The only corrections that should normally be necessary at this point are those relating to type-set errors or those which take account of important material or references not previously available, or subsequent development of notes. Substantial modifications to the text or footnotes can be made only in consultation with and with the consent of the editors. In the end, you will be provided with one free copy of the Finnish Yearbook of International Law containing your contribution, together with 25 offprints. Any queries regarding submission, house style and formatting should be directed to the Executive Editor of the Yearbook, [email protected]. The editors of the Finnish Yearbook of International Law look forward to hearing from you!

Ius Gentium Association Ius Gentium International Law Association (est. 1983) provides a lively, active and easily accessible forum for all interested in international law and related issues. Ius Gentium organizes events and encourages its members to take part in international legal discussion and activities, in studying, teaching and researching international law. The Association is an active publisher, the main publication being the Finnish Yearbook of International Law by Martinus Nijhoff Publishers. The Association conducts seminars and discussion groups concentrating on questions of recent interest in international law and related fields. Through its members and activities, Ius Gentium converses with several international legal scholars, research institutes and legal bodies. The members represent a great variety of professions; among them there are diplomats, university professors, lawyers, researchers and students. The members share an interest in global matters in general and in international law in particular. The majority of the members are Finnish citizens. Although most of the members have a legal background, other academic fields, in particular political and social sciences are also represented. Should you have any questions concerning the Ius Gentium Association, please contact the Secretary of the Association via the Erik Castrén Institute of International Law and Human Rights, P.O. Box 4 (Yliopistonkatu 3), FIN00014 University of Helsinki, Finland.