Posted by Kenneth Anderson:
Brad Roth Weighs on Ruthlessness in International Law and Politics
http://volokh.com/archives/archive_2009_07_26-2009_08_01.shtml#1249155686
Brad Roth, an old friend and law and political science professor at
Wayne State University, delivers a heck of a punch with his new paper,
set to appear in Santa Clara Journal of International Law (2009), but
up in draft at SSRN, [1]"Coming to Terms with Ruthlessness: Sovereign
Equality, Global Pluralism, and the Limits of International Justice."
This article pulls no punches and must have caused a stir among the
genteel precincts of academic international law when it was presented
at the Santa Clara conference and, I believe, at the American Society
of International Law meeting this past spring. (If you have trouble
seeing what the fuss might be about, please just take my word for it,
Brad's is not the general view within this academic subspeciality, and
for purposes of this post, doesn't require comment.)
I tried to say something similar in [2]an essay this year in the
European Journal of International Law (sub req'd), but I can't say I
said it with as much clarity and vigor as this extract from the
article (emphasis added and footnotes deleted):
International law represents � not exclusively, to be sure, but
vitally � an accommodation among entities prone to conflict rooted,
not only in competing interests, but also in systematic and
profound disagreement about justice. Political conflict�s
much-lamented intractability is largely owing to its moral
component; contestants are least willing to back down from
positions taken as a matter of principle. Although human beings
rarely disagree about the most fundamental moral principles in the
abstract (e.g., �murder is wrong�), they all too frequently
disagree about the application of those moral principles to
unmediated struggles over the terms of public order (e.g., �one
person�s terrorist is another�s freedom fighter�). While the
specific configurations of contemporary international conflict can
be ascribed to historical contingencies of the �Westphalian� state
system, the animating tendency toward moral disagreement is endemic
to the human condition.
In the absence of commonalities of substantive moral principle,
participants in the international community need to find common
ground on a different plane. The imperative to honor agreements �
and other forms of accommodation on which others are led to rely �
is not reducible to a pragmatic concern of the �repeat player� to
maintain a reputation that will enable her to obtain cooperation on
subsequent �plays,� but is a duty, owed to the community, to
maintain an expectation of compliance with established
institutions. Moreover, �honor� itself is not without moral
significance, as it reflects integrity and respect for the other.
One honors agreements made with the unjust, mostly because it is
irresponsible to do otherwise when morally important interests
depend on maintaining one�s own and others� ability to trade on the
convention of agreement in similar future contexts, but also
because treachery, even when employed against actors who are
themselves immoral, incurs a moral taint. The point is not that
considerations of extraordinary injustice, even unilaterally
conceived, may never override the duty to honor one�s formal
commitments. It is that positive obligations may be morally binding
even where they demand forbearance from the single-minded pursuit
of one�s unilateral moral ends. Whatever the exceptions, they do
not swallow the rule.
Thus, however paradoxical it may seem, restraint on the pursuit of
justice is not only central to the mission of existing
international law, but also central to any sound theory of
international political morality that pertains to the development
of international legal institutions. Unilateral impositions,
deriving from a particular, empowered conception of universal
morality, are more likely to be the problem than the solution. What
Prosper Weil stated a quarter-century ago remains valid today:
"At a time when international society needs more than ever a
normative order capable of ensuring the peaceful coexistence, and
cooperation in diversity, of equal and equally sovereign entities,
the waning of voluntarism in favor of the ascendancy of some,
neutrality in favor of ideology, positivity in favor of ill-defined
values might well destabilize the whole international normative
system and turn it into an instrument that can no longer serve its
purpose."
Interestingly, among human rights-oriented scholars, this argument
has considerable (though by no means universal) appeal as applied
to unilateral threats and uses of force, and perhaps even to
unilateral coercive economic measures such as secondary boycotts.
Yet some of the same scholars who embrace restraints on those
categories of exertions by individual states or coalitions of the
willing� appear to see national courts� exercises of extraordinary
extraterritorial jurisdiction, nullifications of the immunity of
foreign officials, and creative circumventions of nullum crimen
sine lege as not only exempt from the pitfalls of such unilateral
executive measures, but actually as a peace-building and
law-developing alternative to such executive measures.
This is a fundamental mistake. Extraterritorial prosecution of
foreign-state actors and forcible impositions upon foreign
political communities are both conceptually and practically
intertwined. Because the legal limitations on the two derive from
the same jurisprudential concept, the likely consequence of the
loosening of constraints in the former realm will be the erosion of
constraints in the latter.
International legal constraints on the use of force are predicated
not on a principle of non- violence, but on a principle of respect
for a foreign state�s authority within its boundaries. To put the
point colorfully, but without substantive exaggeration, the right
against coercive intervention is the right of territorial political
communities to be ruled by their own thugs and to fight their civil
wars in peace. It reflects a pluralism that self-consciously
sacrifices one set of genuine moral imperatives to another.
It favors the creation and maintenance of a stable platform for
peaceful and respectful accommodation among territorial political
communities � which may be ruled, for the time being, by
governments bearing incompatible conceptions of political morality
� over licensing unilateral projections of power across borders in
service of what might objectively be a just cause.
Although considerations of human rights may ground episodic
exceptions to the non-intervention norm, human rights do not
constitute a general qualification of the norm; rather, a state�s
right against dictatorial interferences in its internal affairs
presumptively withstands the state�s own violations of
international legal norms, including human rights norms. To the
extent that extraterritorial jurisdiction licenses the vilification
of foreign state officials, it has the potential to undermine the
platform that undergirds peaceful and respectful international
relations. International efforts to secure the bases of human
well-being routinely require the cooperation of political leaders
to whom significant human rights violations can be attributed. Even
recourse to force, both international and internal, must often be
directed toward creating the conditions for a compromise that will
respect the honor of the opposing party, notwithstanding the
opponent�s ruthless acts. Moreover, where ruthless acts have been
committed with substantial popular support, particular leaders
cannot be singled out for vilification without impugning underlying
constituencies, thereby further complicating efforts to establish
cooperation going forward. These are morally important reasons to
forbear from the pursuit of retributive justice across borders,
even though countervailing considerations may outweigh them in a
limited set of circumstances.
References
1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1441962
2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1433974
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