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DRAFT FOR DISCUSSION PURPOSES ONLY: INSTITUTE FOR GLOBAL LAW AND POLICY (IGLP) WORKSHOP AT HARVARD LAW SCHOOL SUMMER 2011; TO BE DEVELOPED INTO EDITED BOOK PROPOSAL. DO NOT QUOTE, BUT COMMENTS AND PAPER PROPOSALS WELCOME TO: VIK.KANWAR@GMAIL.COM.
THE CONCEPT OF COERCION IN INTERNATIONAL LAW
I. INTRODUCTION 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 formal component of their legal personality, and numerous consequences follow from formal variations on consent. Yet coercion, the conceptual flip-side to consent, is rarely mentioned in 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 is coercion systematized. The same is not true in municipal law. Although doctrinal understandings 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 orthodox schools of thought, for example New Haven School and critical NAIL scholars, who bring coercion 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 and Jurisprudence (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 International Law?‖ 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, ―Is International Law Coercive?‖ (2008). At the last ESIL conference, Professor Jacob Cogan has contrasted Theodor Meron has called the humanization of international law with what he calls ―the ―coercive turn‖ in international law. These are possible contributors to the book) 2 Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals, Cambridge University Press (1953). Bin Cheng leads his study of general principles of law with ―self-preservation,‖ relegating ―necessity‖ as the first subsection of this principle (others being self-help, self-defense, etc.). The author begins his discussion with the principle of salus populi is a general principle of law. The ancient right of self-preservation underlies the modern 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 Coercion and 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
interdisciplinary 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 bring together original research in various contexts where coercion is at play, and would be fruitfully explored by theoretical, doctrinal, empirical studies in PIL. We can look both to longstanding tensions that remain unresolved or underexplored within PIL scholarship, as well 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 state responsibility; 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 topic is 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 evidence and procedure therein, (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 between inter-state trade, multinational corporate activity, and public and private violence. These examples are salient ones but by no means exhaustive; a few key themes and analytics will be 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 surprising that states experiencing states of emergency, whether through formal doctrines or contingent decisions, often attempt to exit from obligations under international law. Nor is it a novel insight to say that emergency situations have 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 coercive capacities, 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, ―Coercive Prevention: 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, international law 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 Press 1970) and on the other points citing and quoting Lassa Oppenheim, International Law, Vol. I, 8th Ed.  at 891). In addition to Wertheimer‘s monograph, the 1972 volume of Nomos collects a number of perspectives by legal philosophers on coercion. J. Ronald Pennock and John Chapman, eds., Nomos XIV: Coercion (New York: Aldine Atherton 1972).
CONSTITUTIVE COERCION: THE FORCE OF LAW
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 the discipline 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 factual and 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 concerns with the pedigree of the authority or theories of representation to make law and to enforce it, but assumes that an actual monopoly of coercive power is somehow secured by the general 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 the form of government. In a more complex sense, Thomas Nagel says, even “consent” may be given 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 move from the “law-founding violence” to “law-preserving violence” the dictionary definition is divided and amalgamated effortlessly to a legitimate sphere on one hand, where the term “coercion” no longer applies, and a presumptively illegitimate sphere where according to general usage, the term “coercion” comes to mean the remainder of force then it is either exceptional 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 the relationship between coercive causal forces (necessitia or fortuna) and prudent responses (virtu). The social and natural sciences of today have separated the two senses of necessity, that which causes or compels and that which reacts within a range of constraints. Thus, in the present context, necessity should be understood not as the ontological constraint or over-determination of nature (―Constraint or compulsion having its basis in the natural constitution of things; esp. such constraint conceived as a law prevailing throughout the material universe‖) but rather 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.‖
“What we regard as coercive we view as at least prima facie illegitimate, and we hold it to an accounting. What is not coercive, in contrast, is presumed to be in order.”9 (In other words, if the most concrete image of coercion is a person holding a gun to another person’s head, do we cease to call it coercion when the gunman is a policeman? If God were the gunman would we call it necessity or duress?)10 The nexus between legitimacy and coercion in the law has been theorized by philosophers as diverse as Robert Nozick, John Rawls, Alan Wertheimer, and William A. Edmundson 11 (leaving aside for the moment philosophical traditions associated with critical theorists such as Walter Benjamin, Jacques Derrida, or Niklas Luhmann). Among theories originating in the Anglo-American world, the most persistent description of the relationship between law and coercion is a one inspired by the legal positivism that flows from Hobbes through Austin to Hart. Whereas Austin claims that all laws are “coercive orders that impose duties or obligations on individuals,” Hart claims that laws may differ from the commands of a sovereign, because they may apply to those individuals who enact them and not merely to other individuals. Laws cannot be reduced to coercive orders in that they may not necessarily impose duties or obligations but may instead confer powers or privileges. A more full-bodied concept of law moves away from “mere morality “ or “mere coercion” and recognizes various background rules for coordination and administration. Thus laws are rules that:
William A. Edmundson, Is Law Coercive? Legal Theory, Vol. 1, pp. 81-111 (1995). See also Robert Hale, Coercion and Distribution in a Supposedly Non-Coercive State, 38. Pol. Sci. Q. 470-494 (1923) at 470-478. Erich Vogelin, The Necessity to Limit Disobedience and Indecision, (Chapter VI The Impersonal Use of Force §4), in Erich Vogelin, Collected Works, 27, (Year) pp 61-62. 10 Is the ―gun to the head‖ the operative metaphor for coercion the way the ―ticking time bomb‖ has become for the metaphor of necessity? There is a thin line between semantic (denotative) and semiotic (connotative) discourses. I recognize that academic discourses and legal doctrines of necessity have not foreclosed richer symbolic imagery of the exception, and even in scholarly debates the vacant imperative has been filled with peculiar myths and metaphors, some of which form a standardized and clichéd repertoire. These include metaphors of sacrifice and divine duress (myths of Abraham at Moriah and Agamemnon at Aulis; presiding over the sacrifice of their children to ―necessity‖. If god was a gunman, we‘d call it duress; unless faith or hubris pressed these fathers; still closer to nature than the gun and threat that mother in Styron‘s Sophie‘s Choice faced a dilemma to sacrifice one of her children at gunpoint); metaphors of constraint and binding (the straight-jacket, the suicide pact, the social contract, Ulysses tied to the mast, tied hands); metaphors of contingency (free hands) or engagement (dirty hands) and images ranging from political theology (the exception as miracle, constitution as creation) to political zoology (sea monsters, wolves, and tigers). International law has contributed to spatial metaphors drawing on geometry that was earlier a province of existentialism (vanishing point, black hole, grey zones, limit cases, boundary situations). In literary and legal contexts, we have also seen figures of expertise (the pilot, the surgeon, [Decision, critical, as an incision cuts discussion but cuts precisely] Chesterton‘s question: ―the chemist or the grocer?‖), metaphors of ―oneness‖ and splitting (letter and spirit, the king‘s two bodies, the two voices of the law, Mitra and Varuna) metaphors of steering (navigating between Scylla and Charybdis, the executive as steering the ship of state, governing), stealth and deceit (―the Trojan Horse of emergency‖). As a form of political carnival, the exception is an inversion of power (Agamben, Benjamin), but as a latent Leviathan, it is sovereignty itself (Schmitt). Images of beheadings, interregnum, perversions, iustitium, the feast of fools, the ban, the outlaw, the camp). and other recurring images (the balance, blind justice, a veil thrown over the statue of liberty, ―the ticking bomb‖ There are of course cultural and generational points of reference. In the past century alone, words like ―carpet-bombing,‖ ―waterboarding‖ or ―window of opportunity‖ are more or less meaningful as illustrations of necessity to people with different experiences. 11 Edmundson‘s novel answer is ―No; except in extraordinary circumstances law is not coercive."
May forbid individuals to perform various kinds of actions or that may impose various obligations on individuals; May require individuals to undergo punishment for injuring other individuals; May specify how contracts are to be arranged and how official documents are to be created; May specify how legislatures are to be assembled and how courts are to function; May specify how new laws are to be enacted and how old laws are to be changed; May exert coercive power over individuals by imposing penalties on those individuals who do not comply with various kinds of duties or obligations. 12
Hart’s view is that not all laws may be regarded as coercive orders, because some laws may confer powers or privileges on individuals without imposing duties or obligations on them. Hart says that to conceptualize all laws as coercive orders or as moral commands is to impose a misleading appearance of uniformity on different kinds of laws and on different kinds of social functions which laws may perform. It is worth noting, however, that among the above examples Hart gives urging us to see law’s functions as “not merely coercive” there are a great many that could be recast by a Foucaultian or Hayekian as coercive in a broader sense. This broader debate, about the “coercive character” of law can be called the “constitutive debate” on law and coercion. Beyond the constitutive debate, within the operation of the law, where rules tend to purify and naturalize their coercive properties, Hale provides an analysis that might be useful in the international sphere. This legal realist description certainly has resonances with that part of political realism that does not dismiss international law as toothless. We will turn first to the constitutive debate in international law, and then identify forms of coercion in the operation of international law, in the spirit of Hale. III. COERCION IN INTERNATIONAL LAW The constitutive debate has migrated from jurisprudence to international theory. Taking for granted a description of domestic law as grounded in “legitimate coercion,” the question remains “is international law coercive?” Here, unlike the separation of coercion and legitimacy in domestic law, it is not being asked whether it is presumptively wrong, but whether it is up to the task of the coercive capacities expected of a legal system. We can speak of (a) coercive powers recognized by international law as properly belonging to states, (b) those coercive powers constitutive of international law itself, and (c) limits on unlawful or undesirable coercion provided by international law. How much can be expected of international law as a coercive order? International law is described by Hart as problematic, because it may not have all of the elements of a fullydeveloped legal system. International law may in some cases lack secondary rules of recognition, change, and adjudication. International legislatures may not always have the power to enforce sanctions against nations who disobey international law. Location and legitimacy Different senses are at play when “prohibition on coercive measures” appended to the VCLT than when prof. D’Amato asks “is international law
12 HLA Hart, The Concept of Law (1961).
coercive?” Michael Glennon grounds the effectiveness of international law precisely in its lack of coercive power: “In contrast to states is ultimately upheld through coercion, international law 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”. When Jacob Cogan speaks of the “coercive turn” in international law, he has in mind the coercive powers being consolidated by international regimes.13 D’amato speaks of the necessary aspect of international law that would map onto “legitimate coercion.” Cogan is concerned with legal, illegal, and in-between. Others are concerned that PIL is under-consensual and thus over-coercive. There are limits to the idea that international law is identified with consensual governance. Though it is based –where consent is important— on the consent of states, this is not the same as the “consent of the governed,” since there is no secure norm for representative government in international law. Contrast to Hart: Kelsen pushes international law into the realm of a full-fledged coercive order, but backed by validity rather than effectiveness. Hedley Bull and Anthony Carty, among others have remarked upon Kelsen opposition between international law and power politics, but add skeptically: “He presents war as a contest between the lawbreakers and the law-enforcers, but takes no account of the possibility that the latter will not have might on their side.” The point for Kelsen is not what might or might not happen empirically, but what may always potentially happen. One might note that Kelsen’s “Pure Theory of Law” and the reality of international law have grown towards one another, and that states act with an understanding that they act within boundaries of a larger coercive order. Preceding any discussion of the “legal status of coercion international law” is a more precise mapping of the locations of particular conceptions of coercion in international law. To the extent that they exist, debates around coercion in public international law are relative to their locations. The UN Secretary-General concluded in 1993 that there is no clear consensus in international law as to when coercive measures are improper, despite relevant treaties, declarations, and resolutions adopted in international organizations which try to develop norms limiting the use of such measures.14 Reprisals, counter-measures, aggression, sanctions, obligations? Which of these are properly termed coercion? The answers, of course, are likely to be complicated.
13 At the last ESIL conference, Professor Jacob Cogan has contrasted Theodor Meron has called the humanization of international law with what he calls ―the coercive turn in international law.‖ Within the past two decades, states and international organizations at an unprecedented rate have entered into agreements, passed resolutions, enacted laws, and created institutions and networks, formal and informal, that impose and enforce direct and indirect duties upon individuals or that buttress and facilitate a state‘s authorities respecting those under and even beyond its territorial jurisdiction government (both national and international) in relation to the individual. 14 (UNGA ‗Economic Measures as a Means of Political and Economic Coercion against Developing Countries: Note by the Secretary–General‘ [25 October 1993] UN Doc A/48/535, Agenda Item 91(a), at 1).
LOCATION, LEGITIMACY, AND LAWFULNESS: A PRELIMINARY TYPOLOGY OF COERCION IN INTERNATIONAL LAW We can set a basic typology of coercion based on the kinds of claims that are made about the “lawfulness” of various forms of coercion. coercion that deserve discussion, though the first of these Type Zero is Pre-Legal Coercion, which deems normal state of all human relationships "coercion" has no normative significance; there is nothing illegal about coercion… uncontroversial “Prohibition on coercion” would make little sense if coercion meant persuasion or force in a pre-legal or even pre-normative sense. Coercion is normal state of all human relationships "coercion" has no normative significance; there is nothing illegal about coercion… uncontroversial, Beyond Type Zero, “Pre-Legal” Coercion, the categories are Types I (“Lawful”), II (“Exceptional” or “Extra-Legal”), and III (“Unlawful”) coercion.15 It is only by convention (some would say “social contract”) that we extend the blamelessness or innocence of nature to the first extended to a sense in which “normal” legalized sovereign acts of a state, the capacity to enforce the law, second order nature; Coercion II or “exceptional” that would otherwise be illegal or improper but legitimate under some circumstances. Beyond these we have Coercion III, illegal and somehow noxious enough to have to regulate through the means of Coercion I or II. Reprisals, counter-measures, aggression, sanctions, obligations? Which of these are properly termed coercion? The difference between Coercion II and Coercion I is Example here, the WTO allows states to engage in Benefits and penalties… friction not force. Not the pre-legal coercion of nature, but that which belongs to I, II, and III. Self-help and counter-measures are II in the guise of I. The thesis of this book is that much controversy that animates international law (and international legal theory) is the uncertain status of Coercion II, claims that these kinds of coercion properly belong in categories I or III. Book will discuss Coercion where operationalized as I, II, or II. In none of these contexts are we discussing a normatively neutral phenomenon or one at a distance from law. E.g., in the VCLT “Prohibition on coercion” would make little sense if coercion meant persuasion or force in a pre-legal or even pre-normative sense. Rather than philosophical Ontology of law, coercive “force of law”: category III and ultra vires, excessive or improper coercion.
15 In the past, I have adapted this terminology from one historically distinct form of exception (equity) and applied it to another (necessity). Coercion mediates the relationship between the two. This can be traced to Cicero and Roman commentators of Aristotle‘s Nicomachean Ethics who elaborated three Aristotelian categories of equity: (1) one is equity infra legem, within the law. The power to select from one of several possible interpretations of the law so as to achieve the most equitable result. (2) the second is equity praeter legem; and refers to the use of equity to fill a gap, supplementing the law; (3) the third is equity contra legem, against the law. (cite) See also Gillian Rose, The Dialectic of Nihilism: Post-Structuralism and the Law, New York: Blackwell (1984) 14-15. Drawing on Kant, Gillian Rose claims necessity and equity are flip-sides of equivocal law: equity is ―right without coercion‖ and necessity is ―coercion without right.‖
Reprisals, counter-measures, aggression, sanctions, obligations? Which of these are properly termed coercion? Policeman and the gunman is the pedigree of legality, coercion is not the same as the authority of law. Attempt to distinguish the two at the outset, but also to recognize the considerable zone in between. In international law, the paradigmatic case of a customary norm against coercion is the “prohibition on the use of force” which is articulated in the United Nations Charter This is the attempt to prohibit certain actions by states against other states that are, prima facie, unlawful coercion. In the UN Charter itself there is a clear division of different responses to the unlawful use of prohibited and the UN Charter itself. The responses to this unlawful coercion fit within categories I, the lawful kind (collective security or law enforcement) and type II exceptional kind (self-defense). This kind of maneuver casts the exceptional action as a “lawful contingency”. The Role of Doctrines and analogies in Fragmented Order: Doctrines are expected to perform certain functions: providing analogies, techniques and principles that can be traced to accepted sources of international law, aid in their application, and to provide formal constraint rather than simply evacuating the law. In a sense, then, the various doctrines of necessity in international law regimes are analogous to the legally recognized “exceptions” familiar in domestic law. For example, the canons of state responsibility and treaty interpretation tend to treat necessity like exceptions in tort and contract law; derogation and limitations in human rights law treat necessity like “constitutional” exceptions; and finally humanitarian law (jus in bello) and the use of force (jus ad bellum)— particularly the cluster of doctrines called “self-defense”— directly evoke the domestic analogy of criminal law excuse and justification.16 It is worth distinguishing coercion in situations of duress created by an agent from force majeure and other situations of “necessity” or the “distress” of circumstances.17 Still,
16 Compare again necessity—once a vacant imperative and then a general principle of law (salus populi)—takes on the more particular characteristics of specific doctrines. Along with this doctrinal elaboration and differentiation, ―necessity‖ travels some distance from political will and simple deference. In modern jus ad bellum, self-defense is understood more strictly as an exceptional circumstance for collective self-preservation and not a ―right‖ stricto sensu. In peacetime, doctrines for excluding wrongfulness were further specified (duress, force majeure, necessity, and fortuitous events, and the defense of jus cogens), and became both clearer and more demanding, and even though the ―state of necessity‖ that descended from Grotius no longer required a link to self-preservation, but also less strict protected interests, it codified a series of cumulative conditions was to prevent justification of egregious violations of international law; ―military necessity‖ became linked to proportionality in the law of war came to impose more burdens the claimants than it had traditionally; and finally, along with other procedural hurdles, only the strictest standard of necessity was sufficient to trigger a derogation from human rights obligations, and even then some rights remained non-derogable. Taken together, these doctrines were elaborated so that there should be no gaps in international law, not even on the question of its derogation. 17 ―Distress‖ may describe a situation of the border between necessity and force majeure: cases where only the members of organs acting on behalf of the State find themselves in a situation of distress.17 cases where the ―irresistible external circumstance‖ while not materially forcing those agents of the State to engage, quite
where circumstances are exceptional, in the move to legitimacy (III to II) if not to legality (II to III) the structure justifying coercive means is similar. Justification derives from consequential moral arguments, according to which wrongful actions may be morally deemed by the goodness of their consequences. It justifies the sacrifice of legitimate interests to protect other interests of substantially higher value. A second example: Push activity from category II to category III: acceptable activity, but has somehow become economic coercion that should be restricted or eliminated. A related question is whether a particular economic activity should be viewed as illegal under international law In a slightly different guise, not focused on the question of coercion, the principle is called “non-intervention” and the focus is instead on sovereignty. State: Public violence, the use of force. Private law analogies contract: where an agreement was coerced, thus involuntary, thus void, and public law analogies criminal law confession was coerced, hence involuntary, hence inadmissible. Since state A is also a member of the aggregate of states, it too must experience a diminution in the integrity of the very rule that it is violating. However, we may assume that A conducted a cost-benefit analysis that showed that violating the rule was worth its diminution. The term “right” is used deliberately. Aggregate A’s “right” comes from aggregate A itself. Aggregate A has a right under international law to punish or assist in punishing state B for its rule-violation. If state E violates a rule of international law and in the process adversely affects F’s material interests, F is privileged under international law to violate the same rule or a different rule of equal importance that materially affects E’s interests. F’s action has variously been called a retaliation, a reciprocal violation, a countermeasure, and a reprisal. Kelsen used the term “reprisal,”18 which is perhaps the most exact. If E has only violated a practice of international comity, and if F’s retaliation itself falls short of violating a rule of international law, F’s response is called a retorsion. A reprisal is an action under international law that would be illegal standing alone but becomes legally privileged when used to deter or punish a delict. 19 According to D’Amato,
involuntarily, in conduct conflicting with the requirements of an international obligation of that State, nevertheless puts them in a position of such "distress" that the only way they can avert tragedy for themselves—and possibly those who may be placed in their charge—is by acting in a manner not in conformity with an international obligation of their State. resemble force majeure external circumstances make it relatively, if not absolutely impossible to act in conformity with the international obligation. A sub-category of distress that is also illustrative is ―duress.‖ While there is technically a difference between necessity and duress, in that necessity or distress can involve natural occurrences that force a person to commit a certain act while duress implies a situation created by another that forces a person to commit a certain act, these defenses may blur in practice. Duress is a sub-category of distress. duress is not a defense when an innocent life is taken but not denying that duress is a defense in general terms. This approach has been adopted by many civil law systems, while many common law systems have not required that condition. 18 Hans Kelsen, General Theory of Law and State 57 (1949). 19 Hans Kelsen, Law and Peace in International Relations 34 (1948).
reprisals are both necessary and sufficient in adding the element of coercion that makes international law really “law.” Some rules of international law are considered by states to be so important that Aggregate A will take forceful action to punish their violation. In 1990 Iraq attacked Kuwait in what was clearly a war of conquest in violation of one of the most important norms of international law. Saddam Hussein may have had inferior international lawyers advising him, or perhaps he did not seek their advice, or maybe they told him only what he wanted to hear. Obviously he did not foresee that all the states in the world would act to preserve the non-aggression norm he decided to violate. Yet Aggregate A did act; states contributed soldiers, weapons, and financing to the United States-led military repulsion of Saddam’s army. There was no veto in the Security Council. A norm that is important in a different sense is the rule of diplomatic immunity. For although the norm against aggression has frequently been violated over the years, Iran in 1978 for the first time in history deliberately violated the rule of diplomatic immunity. It placed 52 American diplomatic and consular personnel in Tehran in military detention. The immediate response that occurred to the government of the United States would be to round up and arrest all of Iran’s diplomatic and consular personnel present in the United States—a tit-for-tat strategy. Thus the United States resorted instead to It issued a freeze order to all American banks in the United States and their branches abroad, locking all financial assets belonging to Iran—a total approximating $13 billion. In addition, the United States easily secured the cooperation of the major banks in Europe; they issued a similar freeze. The freezes were clearly a violation of Iran’s property rights under international law. Yet because the action was taken in reprisal for Iran’s violation of diplomatic immunity, the reprisal was justified under international law. Iran was notified that the freeze would only be lifted upon the safe return of the hostages. In 1980, after detailed negotiations,45 all 52 hostages were returned unharmed and Iran’s bank accounts were unfrozen. Iran’s actions were clearly coerced by the operation of international law. THREE MODALITIES OF COERCION—MILITARY, POLITICAL AND ECONOMIC—AND THREE PARADIGMATIC CASES If “legal coercion” is the kind of redundancy that becomes a paradox, it is obvious until it disappears from view. Yet a notion of unlawful coercion is sufficiently embedded in the law, that legal language can identify other forms of coercion military, political, and economic. This is Explicit in three contexts, which demonstrate the limits and possibilities of analogizing across these areas. (1) Military coercion: the structure of non-intervention, Most important recent events, Definition of a “crime of aggression” (2) Political coercion: regulated in the more comprehensive sounding “Declaration on the Prohibition of Military, Political or Economic Coercion in the Conclusion of Treaties.”20 V.
20 The United Nations Conference on the Law of Treaties:
(3) Economic Coercion: Ongoing attempts by various actors such as developing nations and members of the WTO regime to define or re-define forms of “economic coercion. What is the “norm” or baseline against which coercion can be defined? Diplomatic activity, economic activity, or law enforcement activity is defined within a norm. Use of military resources, development activities. State planning, activities, etc., may all be defined within a “norm” or more precisely as presumptively non-coercive, pre-legal coercive, or exceptionally coercive activity. Military coercion: To be justified under international law, such uses for force must either (1) not violate the prohibition against the use of force against the political independence and territorial integrity of the State in question (UN Charter, Article 2(4)); or (2) fall under the right to use force in self-defense (UN Charter, Article 51). Whenever a context of self-defense or self-help is uncertain. The main focus in international legal discourse has been on the right to use force in self-defense because State attacks against terrorist groups located in other countries is, without some other legitimate basis, generally considered a violation of Article 2(4) of the UN Charter. Political Coercion in Treaty Relations: VCLT Conference adopted the following declarations and resolutions, which are annexed to this Final Act: “Declaration on the prohibition of military, political or economic coercion in the conclusion of treaties” 21 Argument: Rights, duties and obligations created without consent in some way amount to coercion. A given set of facts22: The London Accords of 1960 were between the 3 Guarantor Powers (UK, Greece, Turkey). The Greek Cypriots, in 1964, alleged that the treaties were “imposed” on Cyprus, and were hence “unequal, inequitable, and unjust”. Questions whether this can be a legally valid objection to the treaties under the VCLT. Address--(i) Whether it amounts to coercion or coercion by the threat or use of force under Arts. 51 and 52
―Upholding the principle that every treaty in force is binding upon the parties to it and must be performed by them in good faith, Reaffirming the principle of the sovereign equality of States, Convinced that States must have complete freedom in performing any act relating to the conclusion of a treaty, Deploring the fact that in the past States have sometimes been forced to conclude treaties under pressure exerted in various forms by other States, Desiring to ensure that in the future no such pressure will be exerted in any form by any State in connexion with the conclusion of a treaty, 1. Solemnly condemns the threat or use of pressure in any form, whether military, political, or economic, by any State in order to coerce another State to perform any act relating to the conclusion of a treaty in violation of the principles of the sovereign equality of States and freedom of consent, 2. Decides that the present Declaration shall form part of the Final Act of the Conference on the Law of Treaties. 21 United Nations Conference on the Law of Treaties Vienna, Austria First and Second sessions 26 March – 24 May 1968 and 9 April – 22 May 1969 Document:- A/CONF.39/2 22 Dunoff, Ratner & Wippman, International Law: Norms, Actors, Process (2006) at 37-43.
respectively; (ii) What is the effect of the same on the validity of the treaty vis-à-vis Cyprus. (3) Turkey claims that it’s actions were authorized by Article IV of the Treaty of Guarantee. Can Art.IV be interpreted under the VCLT as authorizing such action? (4) Assuming that Art. IV authorizes military intervention, analyze its validity under Arts.53 and 64 of the VCLT (a treaty that violates a jus cogens norm is void). In this regard, address:-(i)The question of consent to the use of force (ii) Any defense Turkey may raise under international law to the use of force under Art. IV of the Treaty of Guarantee. Question of whether there are customary principles governing coercion basic documents like the VCLT, UN Charter, Articles on State Responsibility and so on. Some might view this example as a softer version of even more egregious instances of third-party treaty making or effects imposed by colonial powers. Consider the Berlin Conference which consisted of the carving up of the African continent by the European powers along arbitrary lines and borders. Though this is not coercion upon a treaty-making partner, its effects are undeniably coercive. Should we then analyze process and substantive effects separately? Economic Coercion: To be discussed in the next two sections. VI. FORMALISM IN FRAGMENTARY FRAMEWORKS: FROM SELF-HELP TO ENFORCEMENT SYSTEMS
Though some analysts would consign them to the past, self-help strategies form a part of the vocabulary of modern international law. If customary international law is still somewhat attached to a view of international law as a system based on the legitimacy of self-help measures, it is plausible to view treaty-based regimes (perhaps including the UN Charter regime) as self-contained regimes, and consent-based enforcement systems. In this context, particular forms of coercion are outlawed (e.g. “aggression” in the Rome Treaty of the International Criminal Court) or at least de-legitimated (as with particular forms of “economic coercion” in the WTO regime). Counter-measures
Lawful Contingencies The use of highly coercive economic sanctions, like any other strategic instrument of high coercion, must be based on lawful contingencies. International law permits coercion to be used, but only for prescribed contingencies and under prescribed conditions.23 For the
23 Compare international emergency governance and derogability regimes. E.g.., in the ICCPR coercion is prohibited except under necessity: Article 18 1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or
United Nations, the contingencies are set out in Article 39 of the Charter. For individual states, acting unilaterally or in combination with others, the customary law of self-defense and the emerging law of counter-measures will prescribe the contingencies. The emergence of the World Trade Organization (WTO) regime may provide numerous instances of the attempt to re-classify formerly pre-legal economic activities (category 0) or extra-legal coercive measures (category II) as illegal coercion (category III). WTO views itself (1) primarily as a “forum for negotiation” and (2) the “legal ground-rules for international commerce” and, where necessary (3) harmonious way to settle these differences is through some neutral procedure based on an agreed legal foundation. That is the purpose behind the dispute settlement process written into the WTO agreements. A basic obligation Measures by one State against another State, such as limiting or cutting off imports from the target State, can often violate Parts of various WTO agreements impose obligations on members not to discriminate among States in a number of situations. Positive inducements for trade, such as MFN clauses, are not considered coercive, but the formalization of systems of “carrots and sticks” expands the coercive capacities of the WTO regime even as more forms defined as economic coercion (trade barriers, non-trade barriers) are outlawed under the regime. For example, Art. 1 of the General Agreement on Tariffs and Trade (1947 and 1994) (‘GATT’) provides that a member shall accord all members the same favorable terms, the provision being known as the Most-Favored-Nation Clause (‘MFN’). Other WTO agreements similarly include MFN clauses, such as Article II of GATS and Article 4 of TRIPS24 These MFN clauses are backed by the strong dispute settlement provisions of the WTO Enforcement System. Means may for analytical purposes be divided into those of a cooperative and those of a coercive character. The former are proposals of all kinds for joint and mutually beneficial action, the mutual benefits being a function of cooperative behavior. The latter, however disguised, are threats. Most people instinctively divide threats into two categories. On the one hand, there are threats not to give some benefit, or to withdraw one previously given, to which the threatened state is not legally entitled.
morals or the fundamental rights and freedoms of others. 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions Also in the IACHR regime, where there is the principle of non-derogability, the potential of coercion remains in contexts not expressly non-derogable under the provisions of the IACHR, or interpreted by the judicial organs of the Convention to be non-derogable. Arguably this restores to the state the possibility of coercive forms of compulsion. See IACHR Article 8. Right to a Fair Trial, section f: (2. ―the right not to be compelled to be a witness against himself or to plead guilty; and h. the right to appeal the judgment to a higher court. 3. A confession of guilt by the accused shall be valid only if it is made without coercion of any kind.‖) However, according to I/A Court H.R., Advisory Opinion OC-8/87, Habeas Corpus in Emergency Situations, January 30, 1987. Non-derogable rights: It is clear that no right guaranteed in the [American Convention on Human Rights] may be suspended unless very strict conditions -- those laid down in Article 27(1) -- are met. Moreover, even when these conditions are satisfied, Article 27(2) provides that certain categories of rights may not be suspended under any circumstances. 24 Art. II General Agreement on Trade in Services (1994) and Art. 4 Agreement on Trade-Related Aspects of Intellectual Property Rights (1994).
Economic aid is an example: there is no legal obligation to give it in the first place or to continue giving it, however great the degree of dependence it has created. On the other hand, there are threats with respect to what could be called entitlements: for example, the threat by one member of GATT, the General Agreement on Tariffs and Trade, to deny "most favored nation" treatment to another. Other provisions allow some special benefits for developing countries. The growing number of regional and bilateral free trade agreements also sometimes includes non-discrimination clauses that might limit attempts at economic coercion. Economic coercion can be defined as: threat to use, measures of an economic—as contrasted with diplomatic or military—character taken to induce [a target State] to change some policy or practices or even its governmental structure25 The creation of categories of “economic coercion” and the prohibition of practices deemed to be economic coercion has met with mixed success. It has been successful in the context of the WTO and unsuccessful in the context of the Non-Aligned Movement. It has been successful in the context of treaty regimes, but unsuccessful in the context of customary international law. Lowenfeld has defined economic coercion as “measures of an economic—as contrasted with diplomatic or military—character taken to induce [a target State]26 to change some policy or practices or even its governmental structure”27 According to Barry E. Carter , these activities, however, can be grouped roughly into five major categories, as uses of or limits on: (a) bilateral government programmes, such as foreign assistance and aircraft landing rights; (b) exports from the sender State; (c) imports from the target country; (d) private financial transactions, such as on bank deposits and loans for trade or investment; and (e) the activities of international financial institutions (‘IFIs’ such as the World Bank).28 To define an activity as coercion: to determine whether one of the particular economic activities is not acceptable activity, but has somehow become economic coercion that should be restricted or eliminated.
25 Andreas F. Lowenfeld, International Economic Law (OUP Oxford 2002) at 698. The State or other entity that is the object of the economic measure is sometimes called the target, while the State(s) that engage in these activities is sometimes termed the sender(s). 26 The State or other entity that is the object of the economic measure is sometimes called the target, while the State(s) that engage in these activities is sometimes termed the sender(s). 27 (Lowenfeld 698). 28 Barry E. Carter International Economic Sanctions: Improving the Haphazard US Legal Regime (CUP 1988) 8– 11.
Note: tension between two conflicting principles. The first is the principle of nonintervention (prohibition on intervention), At the same time, States have the right to conduct political and economic relations with other countries. A related question is whether a particular economic activity should be viewed as illegal under international law. More background is needed to determine what activities, if any, might be restricted, eliminated, and/or deemed illegal. This has happened in various contexts: the community of States through the United Nations directed economic sanctions against the apartheid regime in South Africa from 1962–94; the United States has employed varying economic measures against Cuba from 1960 to the present; the United Kingdom imposed a trade and financial embargo against Argentina over the Falkland Islands/Islas Malvinas; India took economic actions against Nepal in 1989–90; the Economic Community of West African States and the United Nations imposed economic measures against Sierra Leone in 1997–2003; Russia employed economic measures against Latvia from 1992–98 and against Georgia from 2006; and the United Nations started restricting the economic activities of its other Member States with Iran and North Korea since 2006.29 The goals of counter-measures could be analogized to doctrines on the use of force (jus ad bellum) whereas the targeting could be analogized to humanitarian law (jus in bello) strictures. Legal sources of lethal force and resources for regulating coercion in public and private law especially international law. VII. EAST OF EQUALITY AND SOUTH OF SOVEREIGNTY: A BRIEF HISTORY OF GLOBAL ANTICOERCION COALITIONS
The WTO regime can be seen as a story of multi-lateral talks, through overlapping consensus widening the sphere of non-coercion. Yet it is instructive to look at a parallel story where efforts to promote the notion of “economic coercion” have failed. Many countries, today subsumed under the label the “global South” have Latin American countries often took the lead in trying to limit economic coercion in part because of concerns about past and possible interventions by the United States or European States. Most of the legal efforts have focused on whether the prohibition of the use of force the United Nations Charter includes the use of economic coercion as a use of force or a type of aggression.30 Some developing countries, however, argued that Art. 2(4) UN Charter itself,
29 (eg (Barry E. Carter International Economic Sanctions: Improving the Haphazard US Legal Regime (CUP 1988, 2; See , e.g., Vik Kanwar, Two Crises of Confidence: Securing Non-Proliferation and the Rule of Law Through Security Council Resolutions, Ohio Northern University Law Review, Vol. 35, p. 171, 2009 30 Documents central to understanding this strand of resistance by developing nations include: Charter of the Organization of American States (signed 30 April 1948, entered into force 13 December 1951) 119 UNTS 3. Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 145 BSP 805. Convention on Rights and Duties of States (signed 26 December 1933, entered into force 26 December 1934) 165 LNTS 19. General Agreement on Tariffs and Trade (adopted 30 October 1947, entered into force 1 January 1948) 55 UNTS 187. General Agreement on Tariffs and Trade 1994 (adopted 15 April 1994, entered into force 1 January 1995) 1867 UNTS 190. General Agreement on Trade in Services (adopted 15 April 1994, entered into force 1 January 1995) 1869 UNTS 183. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits)  ICJ Rep 14. Treaty of Friendship, Commerce and Navigation between the United States of
which provided that all members ‘shall refrain … from the threat or use of force’, encompassed economic coercion.31 Western powers and developed States have consistently argued that the prohibition on use of force applies only to military force. Anti-coercion movement protective of sovereignty and non-intervention broadly defined. Expand the concept of economic coercion, and restrict the definition of self-defense. Other states, such as Arab countries and some developing nations, argue that the right to use force in self-defense only applies in cases of an armed attack by another State, not an armed attack by a non-State actor. More broadly, the OAS resolved that “the principle that the territory of a state is inviolable and may not be the object, even temporarily, of military occupation or of other measures of force taken by another State, directly or indirectly, on any grounds whatsoever.” An Analogy: Those disadvantaged by unequal bargaining power will more likely be critical of the ideology of “free trade” and skeptical that it is an emancipatory space of noncoercion, much in the same way that some feminists in the 1960s were skeptical of the emancipatory effects of “free-love” practices in vogue at the time. The argument was that far from subverting patriarchal power, free love discourse risked sort-circuiting the power of women to claim the power to consent to and reject sexual overtures. In both the contexts of free trade and free love, a skeptic might approach the power differentials as fundamental, re-describe “freedom” as an encroachment on the volition of others, and reject the emancipatory potential of the discourse outright. Or else, one might insist on procedural safeguards reflecting ethical practices of securing consent through corrective communication practices, increased scrutiny of transactions between unequals, and empowerment of the disadvantaged party. Taken further, the argument would be that the power to say no must be seen as central to the definition of freedom in each context, rather than free trade and free love being irresistible imperatives to transact free from the force of protectionism and prudery. Examples: Art. 8 Convention on Rights and Duties of States (‘Montevideo Convention’), which provides: ‘No state has the right to intervene in the internal or external affairs of another.’ The article, however, does not specify what economic measures might constitute an intervention. Later, Art. 19 Charter of the Organization of American States (OAS) was more specific and provided: ‘No State may use or encourage the use of coercive measures of an
America and the Republic of Nicaragua (signed 21 January 1956, entered into force 24 May 1958) 367 UNTS 4. UNGA ‗Economic Measures as a Means of Political and Economic Coercion against Developing Countries: Note by the Secretary–General‘ (25 October 1993) UN Doc A/48/535. UNGA Res 42/173 ‗Economic Measures as a Means of Political and Economic Coercion against Developing Countries‘ (21 December 1987) GAOR 42nd Session Supp 49 vol 1, 130. UNGA Res 2131 (XX) ‗Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty‘ (21 December 1965) GAOR 20th Session Supp 14, 11. 31 This argument was weakened by the fact that, during the drafting of the Charter, a proposal to prohibit economic coercion was rejected by a vote of 26-2 (UNCIO Documents of the United Nations Conference on International Organization vol. 6 [United Nations Information Organizations New York 1945] 334).
economic or political character in order to force the sovereign will of another State and obtain from it advantages of any kind.’ Because, as discussed below, this debate continued over decades, one or more developing countries cited, as examples of economic coercion that should be considered a use of force, a range of measures that might include the termination of foreign assistance programmes, a cut off of exports or imports, or limits on financial transactions. In the 1960s through the mid-1980s, developing and non-aligned States Non-Aligned Movement [NAM]) led the United Nations General Assembly (‘UNGA’) to pass a number of declarations and resolutions that generally condemned interference in the sovereign affairs of any State by another State, or that more specifically condemned the use of coercive economic measures to influence a country's internal affairs. The earliest example is apparently the 1965 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty, UNGA Resolution 2131 (XX) of 21 December 1965 (adopted without dissent, with one abstention). It proclaimed that ‘No State may use or encourage the use of economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights or to secure from it advantages of any kind’ (para. 2). 1970 Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, UNGA Resolution 2625 (XXV) of 24 Oct 1970 (adopted without a vote). Opposition from the developed States grew over the next two decades. As noted above, the number of countries opposing these resolutions gradually increased. Moreover, these resolutions, as well as other agreements at the time, were generally vague. The General Assembly Resolution 42/173, entitled Economic Measures as a Means of Political and Economic Coercion against Developing Countries of 11 December 1987, employed similar language to the 1965 Declaration, but the recorded vote was 128 States for, 21 against, and 5 abstaining. Such UN declarations and resolutions may be evidence of opinio iuris and as such may contribute to the development of customary international law, but thus far, the inclusion of economic measures as not been upheld in any context. The ICJ’s decision Military and Paramilitary Activities in and against Nicaragua Case (1986), Nicaragua had argued that the United States had violated the principle of non-intervention with its cut-off of economic aid, its 90% reduction of Nicaragua's sugar quota for imports into the United States, and then the comprehensive US trade embargo. Court
[The ICJ] is unable to regard such action on the economic plane as is here complained of as a breach of the customary-law principle of non-intervention’32 (Nicaragua v United States of America para. 245). Instead, the court relied on treaty law the Court voted 12–3 that the United States, with its general embargo on trade with Nicaragua, violated its treaty obligation under Article XIX 1956 Treaty of Friendship, Commerce and Navigation between the two States.33 The issues implied by the term “political and economic aggression” cannot be considered adequately outside the context of the broad questions: In their ongoing relations, what means may states employ to influence each other's policies?34 And to what ends? VIII. FURTHER TOPICS COERCION IN EMERGING ACTORS AND FORMS OF REPRESENTATION: GLOBAL GOVERNANCE AND CIVIL SOCIETY
1. Flipping the script on coercive power and sovereignty; R2P: authority is legitimate where it can protect. 2. Really interested in the parallel histories of developing and LDC coalitions failing to extend “economic coercion” through arguments and analogies in international law and the relative success of the WTO to expand the definition of “economic coercion” in its own sphere. 3. If not through coercion, why to developing countries act against their own interests?35 4. Mapping power asymmetries (free bargain) among global actors.
5. Extending past PIL into global governance, etc. Here are two further examples:
We can also look at coercion and consent outside the traditional realm of public international law as circumscribed by the doctrine of sources. Accountability gaps: shifts of regulatory authority from the domestic to the global means that important regulatory
32 Nicaragua v United States of America para. 245. 33 ibid paras 278–79 34 See generally Moynihan, ―International Law and International Order,‖ 11 Syracuse J. Int'l L. & Com. 1, 8 (1984 ). 35 Andrew T. Guzman, Why LDC‘s Sign Treaties that Hurt Them: Explaining the Popularity of Bilateral Investment Treaties, 38 VA. J. INT‟L. L. 639 (1998) (proposing that lesser developed nations have entered into bilateral investment regimes as the result of a ―prisoner‘s dilemma‖).
decisions are made by administrative bodies not effectively subject to current domestic or international political or legal (administrative law) mechanisms of accountability.36 It is well known that democratic norms are not (or not yet) firmly entrenched either in the processes of global governance, or in the forms of recourse taken by global civil society members. Actors and Norms involved Are certain practices “coercive” and improperly coercive, or accommodate a space of politics? Here, I will discuss three sets of norms based on an analogy to a democratic and anti-coercive norm of anonymous voting that is well accepted at the domestic level. The processes various actors use to articulate their claims. The existing forms of voting, whether by paper or computerized ballot, are in theory anonymous. By obscuring the identities of particular voters, while making the outcome of the election public, the process is meant to guard against verification and coercion by third parties who might otherwise exert undue influence on an individual’s vote for a particular candidate. Technology: fraud or mistakes. As these problems move to the forefront, there is more a move towards transparency than pure anonymity. The question of democratic norms and coercion the controversy over anonymous voting at International Whaling Commission, regulates the activity of killing whales. In 1985, they declared the moratorium on commercial whaling, one of the most important measures ever to protect whales from extinction. Since that time, Japan has been “recruiting” new members of the International Whaling Commission that are less inclined to protect whales, chipping away in attempt to ultimately overturn the moratorium. That “recruitment” often comes in the form of a conditional offer of a fish-processing plant, payment of the dues and costs of IWC participation, or other lucrative aid offers. All the recruited country needs to do is show up at the IWC once a year and do as told. As one former IWC commissioner who admitted being bribed told ABC’s Four Corners “I don’t think the international legal community has yet come up with a term to describe this blatant purchasing of small country governments by Japan.” What can be wrong with representative bodies, and with principle of secret ballot to free from pressure? With a simple majority the Japanese can: Change the rules of procedure to establish secret ballots for voting; Japan’s last proposal to adopt secret ballot voting was also voted down in a 33 to 30 vote, with one abstention. An annual attempt to gut the Southern Ocean Sanctuary was once again defeated, though its margin of safety in votes is starting to decline with the ranks of pro-whaling countries swollen by Japan's recruitment campaign. (2) A second case study Quasi-anonymous and de-centralized coercive activity: flash mobs: phenomenon; crowd to come do something silly. dance routine, silly but spontaneous events. then scatter, possible source of political action. replacement or supplement for the traditional protest. US. Does not carry the weight it once did. March in the civil rights movement that got the jobs done. Difference in tone: like going to funeral. Now they are more fun. Numbers are greater, but not much real consequence, Spontaneous organization,
36 See generally: NYU Global Administrative Law Project: www.iilj.org
might see more creative protests. Anti-social behavior (ranging from pranks, viruses, vandalism, and terrorism) would also increase in parallel. what looks like real political action, makes public this information. Interesting view into what could happen in collective action looks different. : I think it's because we live more by personas on the web, creating walls and shells to hide it seems like pseudonym’s, .usernames, etc. fall short of total anonymity but let some people fragment their identities and also to "brand" themselves if need be. and i get a flier about it, I might be prompted to care, if enough people are educated in such a way, there will be a visible outcry if its important enough to people Like with internet reporting, people would have to develop new markers of trust for these forces competing for our attention. Hack-tivism> Wikileaks. To what extent directed anonymous action by crowds will be a factor in the near-future? New applications and contexts for anonymity will proliferate along with the creation of new forms of social interaction and political action. Apart from voting, other traditional activities such as town halls, comments for administrative actions, and public protests will change their forms with the technology available. Affinity groups could organize effective live events such as flash mobs as a replacement for the traditional protests that peaked in their effectiveness in the 1960s. Display of power, action without the government’s consent or organization. What we might have here are “politics” first as the administration of power, and secondly as the struggle for power. Coercion and consent outside the traditional realm of public international law as circumscribed by the doctrine of sources. Accountability gaps: shifts of regulatory authority from the domestic to the global means that important regulatory decisions are made by administrative bodies not effectively subject to current domestic or international political or legal (administrative law) mechanisms of accountability.37 Other potential accountability mechanisms for global governance (and analogous challenge of accountability for regulation in national and supranational settings arising from privatization and network strategies).Transparency? Participation? Peer or public reputation? Deliberative consensus (e.g. comitology)? Network governance? Finally: MUST WE ADOPT LEGAL DEFINITIONS OF COERCION IN THE INTERNATIONAL SPHERE? It comes down to parallel moves in law vs. ethics. Both law and ethics can be structured on the norm-exception (and by analogy formalism-contingency) distinction, but the sphere of ethics is based on virtue, not rules, and offers no reliable way of censuring the violation of
37 See generally: NYU Global Administrative Law Project: www.iilj.org
standards. Many theorists offer ethical and legal theories and some even blend these. There is not a bright line to be drawn between ethics and law. We have choices and our choice is not between tragedy and piety, but between relative formalism and relative contingency. Formal accountability and not existential responsibility will demonstrate that we are dealing with law and not simply ethics. Ethics is not a procedure, but a series of standardized arguments and objections, which flow in a circular and repetitive fashion. How different is this from legal rhetoric? In Metaphysics of Morals38 Kant separates a Doctrine of Right (which pertains to law) from a Doctrine of Virtue (which pertains to ethics). Each provides a different impetus to conform to duties. The fundamental principle of right is the maximization of freedom in accordance with the freedom of others, and this principle, according to Kant, is a priori.39 It is proper to be coerced to do what is in accordance with right because a hindrance to a hindrance of freedom is right.40 Thus, enforcement plays a central role in Kant’s theory; it is coercion and not conscience, society and not the soul that provides an external reason and distinctively legal account of right action, and for behaving in accordance with duties. Right can be embodied in law and when law is in accordance with right, it is just law.41 Formal accountability and not existential responsibility will demonstrate that we are dealing with law and not simply ethics. But, it is the way the exception is governed, the fact of accountability—when the politician puts bodies at risk, he must risk his own material circumstances, not simply his soul or his conscience, nor his subjective virtue. The move to Athena in the Oresteia is a move to the responsible office, the rule of law, and to law-based solutions. Who internalizes the danger and emptiness of “necessity”?42 Robert Cover persuasively argued that jurists were structured by these competing discourses: This
38 Immanuel Kant. Metaphysics of Morals. Translated by Mary Gregor. (Cambridge, Cambridge University Press, 1991). p. 206. References are to the Academy Edition pagination. 39 Kant. Metaphysics of Morals. Translated by Mary Gregor. (Cambridge, Cambridge University Press, 1991). pp. 230-1. 40 Kant. Metaphysics of Morals. Translated by Mary Gregor. (Cambridge, Cambridge University Press, 1991). pp. 231-2. 41 To some, certain kinds of international law simply resemble natural law or moral duties, duties of right are those which are physically enforceable. Kant. Metaphysics of Morals. Translated by Mary Gregor. (Cambridge: Cambridge University Press, 1991). p. 311. Kant declares that Doctrine of Right, all further discussion of man‘s external freedom and the possibility of acquiring rights through the imposition of external laws revolves around this paradoxical axiom: that the internality of innate freedom only gives rise to moral laws, rights and duties because of the existence of external relations among individuals who are already bound to one another by this primordial right. 42 This is an example of the inter-penetration of legal and political discourses in a particular direction, but not of the articulation of doctrines. Despite the fact that common law reasoning in the United States is not decided by reference to general principles and maxims, but rather to analogies with previous cases However, see George Fletcher, Romantics at War, (Introduction comments on the common law‘s de facto use of general principles]. Cover persuasively argued that jurists were structured by these competing discourses: This model of a tug-of war between the claims of justice and the dictates of necessity was very much in the minds of jurists who took the slavery issue seriously. Arguments from justice (here, the natural right of revolution) and necessity (the preservation of the social order) share a plane of abstractness, and in Cover's words, a frankly meta-legal character. However, these discourses reappeared in doctrinal forms and had consequences for how doctrines were argued. This is not so much about legality but level of generality (what Cover's larger work called the moral-formal dilemma).
model of a tug-of war necessity as a polar counterweight to natural right, To the maxim “fiat justia” the torn master responded “salus populi superior lex est.” Arguments from justice (here, the natural right of revolution) and necessity (the preservation of the social order) share a plane of abstractness, and in Cover's words, a frankly meta-legal character. However, these discourses reappeared in doctrinal forms and had consequences for how doctrines were argued. This is not so much about legality but level of generality (what Cover's larger work called the moral-formal dilemma). According to Martti Koskenniemi, the difference between a turn to formalism and a “turn to ethics” is that the latter unleashes a kind of contingency or dynamism (“who can, may.”)
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