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Coercion IL Book Proposal

Coercion IL Book Proposal

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Published by: CPLJ on Aug 23, 2011
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1
DRAFT FOR DISCUSSION PURPOSES ONLY: INSTITUTE FOR GLOBAL LAW AND POLICY(IGLP) WORKSHOP AT HARVARD LAW SCHOOL SUMMER 2011; TO BE DEVELOPED INTOEDITED BOOK PROPOSAL. DO NOT QUOTE, BUT COMMENTS AND PAPER PROPOSALSWELCOME TO: VIK.KANWAR@GMAIL.COM. 
THE CONCEPT OF COERCION IN INTERNATIONAL LAW
Vik Kanwar 
 I.
 
I
NTRODUCTION
 The concept of 
consent 
is often foregrounded in public international law (PIL), most prominently in its doctrine of sources. The attribution of volition to states is a formalcomponent of their legal personality, and numerous consequences follow from formalvariations on consent. Yet 
coercion
, the conceptual flip-side to consent, is rarely mentionedin the literature on international law.
1
Treaties are treated as consent-based sources of law, and customary law is defined as transcending consent, but in neither context iscoercion systematized. The same is not true in municipal law. Although doctrinalunderstandings of coercion are central to contract law and criminal law, for example,
prohibitions on coercion are not mentioned along with “general principles of law”
catalogued by Prof. Bin Cheng in his canonical study.
2
Within PIL, it is the less orthodoxschools of thought, for example New Haven School and critical NAIL scholars, who bringcoercion into view.
3
Under the influence of political realism, the conceptual landscape of International Relations (IR)
in contrast to PIL
has always dealt more explicitly with
coercion and recognized its importance (perhaps second only to “necessity” or“sovereignty”)
4
as a concept grounded jointly in facts and norms.
5
Yet in recent 
*Assistant Professor, Jindal Global Law School (JGLS); Assistant Director, Centre on Public Law andJurisprudence (CPLJ). NCR of Delhi, India. The proposed project (2011-2013) is a new synthesis of two projects of 
the CPLJ, formerly entitled ―The Legal Sources of Lethal Force‖ and ―What is ‗Public‘ in Public InternationalLaw?‖
 1 Exceptions exist. See, e.g., Tom J. Farer,
Political and Economic Coercion in Contemporary International Law
,
 American Journal of International Law
, Vol. 79 (1985). For a more general overview
, see Anthony D‘Amato, ―
IsInternational Law Coercive?
(2008). At the last ESIL conference, Professor Jacob Cogan has contrasted TheodorMeron has called the humanization of international law with w
hat he calls ―the ―
coer
cive turn‖ in intern
ational law.These are possible contributors to the book)2 Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals, Cambridge UniversityPress (1953).
Bin Cheng leads his study of general principles of law with ―self 
-preserva
tion,‖ relegating ―necessity‖
as the first subsection of this principle (others being self-help, self-defense, etc.). The author begins his discussionwith the principle of 
salus populi
is a general principle of law. The ancient right of self-preservation underlies themodern versions of derogability, self-defense, duress, military necessity and in more limited circumstances state of necessity.3 See, e.g., Myres S. McDougal and Florentino P. Feliciano,
The International Law of War: Transnational Coercionand World Public Order 
(Yale 1994); Myres S. McDougal and Florentino P. Feliciano,
 Law and Minimum World Public Order: The Legal Regulation of International Coercion
(Yale 1961).4 It might be instructive to look at my
analogous project on ―necessity‖ in
PIL and IR discourses: Vik Kanwar,
“The Politics of Necessity: Vital Interests and Vacant Imperatives in International Jurisprudence”
(manuscript 2006),available at:http://www.scribd.com/doc/32615755/Politics-of-Necessity-by-Vik-Kanwar.In some ways it is more
 
2
interdi
sciplinary scholarship fusing IR and PIL (“compliance” studies and “legalization”
literature), coercive factors again fade into the background.
6
To address this gap in the literature, this project [conference and edited book] will bringtogether original research in various contexts where coercion is at play, and would befruitfully explored by theoretical, doctrinal, empirical studies in PIL. We can look both tolongstanding tensions that remain unresolved or underexplored within PIL scholarship, aswell as to topics that are emerging as practices change. Among the former, possible topics
include the “use of force” doctrine delineated in the UN Charter, “duress” as a
circumstances precluding responsibility (justification or excuse) under the law of stateresponsibility; as well as the different treatment of agents of the state under the laws of war, diplomatic immunity, and law of treaties.
7
Among the latter, the currency of the topicis evident in emerging coercive mechanisms and forms of regulation of coercion in the
context of (1) the doctrinal and institutional “fragmentation” of international law, (2) the
emergence of international criminal law (ICL), the newly formulated definition of 
“aggression” in the ICC, as well as the elaboration of rules of evi
dence and proceduretherein, (3) the tension and interplay between humanitarian law of armed conflict and
human rights law, (4) the expanding scope and “legislative” force of sanctions imposed by
the UN Security Council, and (5) economic sanctions and various intersections betweeninter-state trade, multinational corporate activity, and public and private violence. Theseexamples are salient ones but by no means exhaustive; a few key themes and analytics willbe developed below in order to help identify a relevant range of topics for the project.
than an analogy, to recognize that there is a zone of contingency at the heart of international law. It is not surprisingthat states experiencing states of emergency, whether through formal doctrines or contingent decisions, oftenattempt to exit from obligations under international law. Nor is it a novel insight to say that emergency situationshave trans-border effects. However, recent experience shows us that there are actually transnational processes,including some based in international law that rather than restraining emergency measures, but also facilitate them..5
Apart from the very general level at which concepts in IR (such as ―balance of power‖) rely upon coercivecapacities, a more focused literature has grown on the issues of ―coercive inducement‖ and ―coercive prevention.‖
See Donald C.F. Daniel, Bradd C. Hayes, and Chantal de Jonge Oudraat,
Coercive Inducement and the Containment of International Crises
. Washington: United States Institute of Peace, 1999.
 
Bruce W. Jentleson, ―
CoercivePrevention: Normative, Political, and Policy Dilemmas
.‖
Peaceworks
No. 35. Washington: United States Institute of Peace, 2000.6 See e.g., Michael Glennon,
The Fog of Law
(Stanford 2010). (Glennon grounds the effectiveness of international
law precisely in its lack of coercive power: ―In contrast to states is ultimately
upheld through coercion, internationallaw is based on consent: states must choose to abide by the strictures and obligations of international law, and they
can just as easily withdraw their consent‖).
7 In his only mention of international law in his legal and philosophical study of coercion, Alan Wertheimer
observes that ―if a soldier surrenders and is taken prisoner of war, he cannot argue that he acquires no obligations to
his captors because he surrenders under duress. And whereas coercion applied to the representative of a state will
invalidate a treaty the coercion imposed by the victor [state] upon the vanquished state will not.‖ Alan Wertheimer,
Coercion
(Princeton 1987) at 170-171 (citing on the POWs, Michael Walzer,
Obligations
(Harvard University Press1970) and on the other points citing and quoting Lassa Oppenheim, International Law, Vol. I, 8th Ed. [1955] at 891).
In addition to Wertheimer‘s monograph, the 1972 volume of 
 Nomos
collects a number of perspectives by legalphilosophers on coercion. J. Ronald Pennock and John Chapman, eds.,
 Nomos XIV: Coercion
(New York: AldineAtherton 1972).
 
3
II.
 
C
ONSTITUTIVE
C
OERCION
:
 
T
HE
F
ORCE OF
L
AW
 
The OED provides as workable a general definition of coercion as any source: “constraint,
restraint, compulsion; the application of force to control the action of a voluntary
agent.”
What is important in this definition is the fact of the application of force overcome will,
without recourse to terms such as “lawful”, “wrongful”, or “illegitimate.” This is in part 
because it is widely assumed that law is
to some degree
itself a coercive order. The
simple phrase “legitimate coercion” sums up Hobbes’ on the state, Austin on the law, and
Weber on both. Yet the gravitational pull between legitimacy/coercion is highly unstable,and it is hard to imagine the past 300 years of political theory or the existence of thediscipline of jurisprudence without the vigorous debates on the tensions and precise limits
between “legitimacy” and “coercion.”
Theorists from Grotius to Weber identified state sovereignty with the monopoly of factualand legitimate coercive power, not only the possession of it, but also the ability to protect against unauthorized violence. This definition pushes to the background modern concernswith the pedigree of the authority or theories of representation to make law and to enforceit, but assumes that an actual monopoly of coercive power is somehow secured by thegeneral acceptance of 
 
those governed, of the sovereign's exclusive right to employ it.Protection of those governed by states is a more secure norm in international law than theform of government.
In a more complex sense, Thomas Nagel says, even “consent” may begiven for many reasons, “ranging from reverence or fear to the desire for security, freedom,
and the pursuit of happiness, and it may be given to sovereigns of many forms, from
monarchies and theocracies to democratic republics.”
 Let us assume that the
State holds the “monopoly on legitimate coercion” Once we movefrom the “law
-
founding violence” to “law
-
preserving violence” the dictionary defini
tion isdivided and amalgamated effortlessly to a legitimate sphere on one hand, where the term
“coercion” no longer applies, and a presumptively illegitimate sphere where according togeneral usage, the term “coercion” comes to mean the remainder of force
then it is eitherexceptional or unlawful. That coercive power disappears into law has important consequences.
8
 
8 Yet, even in some of the earliest contexts, the claim of necessity is not purely an imperative of natural law, leaning
instead on factual contingency and incalculability to leverage its force. In Machiavelli‘s time, there persisted the
notion of unalterable laws
 — 
of political practice as much as natural philosophy
 — 
that treated as self-evident therelationship between coercive causal forces (necessitia or fortuna) and prudent responses (virtu). The social andnatural sciences of today have separated the two senses of necessity, that which causes or compels and that whichreacts within a range of constraints. Thus, in the present context, necessity should be understood not as theontological constraint or over-
determination of nature (―Constraint or compulsio
n having its basis in the natural
constitution of things; esp. such constraint conceived as a law prevailing throughout the material universe‖) butrather as within the sphere of human action, ―the constraining power of circumstances; a condition or state
of things
compelling to a certain course of action.‖
 

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