Tag Archives: article review

How California, Bermuda, and Hogonas Are Undermining the International Legal Order

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Via Legal Theory, a cool if short article on the implications of sub-state activity in the international realm, Sovereignty, Territory and Fluidity: Lessons from Hoganas.

The modern conception of statehood, with its neat division of sovereign territories along recognized and inviolable boundaries, seems sometimes to be the inevitable geopolitical structure of the world, but it is of course a relatively modern invention — sovereignty, as we recognize it today, only emerged in the past two or three centuries. There is no reason to assume it will be the perpetual condition. Probably the most frequently discussed threat to sovereignty is the emergence of supra-state entities such as a “world government,” or at least a “continental government” in the style of the European Union. A second, lesser, challenge to the state model is the uncertain status of non-governmental non-state entities, such as the Red Cross.

But often overlooked is the role of sub-state entities in undermining sovereignty. Not only are top-down systems changing the nature of international law, but so are new bottom-up patterns of behavior emerging from domestically-recognized internal sub-sovereign entities.

A high profile example of this occurred recently, with Bermuda’s resettlement of ex-Guantanamo detainees.

At the time of the Uighur transfer, the government of the United Kingdom launched public protests because neither the government of Bermuda nor the government of the United States discussed the potential transfer with it at any point prior to the actual transfer of the Uighurs. The diplomatic intricacies of the relationship between these states are beyond the scope of this paper. However, this example is important to the paper’s overall discussion of states and sub-states in that it involves an outside state – and a powerful ally of the United Kingdom at that – recognizing that a sub-state could enter into an agreement which was in direct violation of the explicit laws of the sub-state and the state of which it is a part. Further, it illustrates an instance in which a sub-state derogated from accepted law and practice in order to insert itself into an issue for which the larger state has an accepted stance and acted in contravention of the larger state’s policy in the realm of security and international relations

Under “pure” international law, the only recognizable entities are states. Sub-states — let alone individual people — are simply non-existent on the international plane. But in the U.S., individual states, not the federal government, form the bulk of the vanguard for international environmental law developments.

[M]any individual states – including powerful states such as California and New York – have thwarted these [U.S.] policies and grouped together to engage in carbon capping and trading on a regional level. Additionally, the State of California has entered into climate change related agreements with Canadian provinces and outside states, such as Brazil and China, although the United States government has not done so.

Finally, in Sweden, the town of Hogonas in bringing into sharp relief some of the complications to the sovereignty model caused by the European Union. Although by domestic law, Sweden’s Riskbank is the only entity that can declare what will be accepted as legal tender, the southern tourist town of Hogonas has simply announced and put into effect a plan for local merchants to accept Euros as well as krona. In fact, this is not merely a violation of domestic law — even under international instruments, it is unambiguously clear that such fiscal decisions are to be made at the national level.

[I]f the Swedish government had acted to stop Hoganas’ acceptance of the euro, this paper would have an entirely different discussion. However, Hoganas’ actions in defying the stance of the Swedish government regarding the euro, as well as the layers of statutory and constitutional laws which established the state as the ruling authority in matters of monetary policy, finance, and international and EU relations were not stopped or counteracted by the Swedish authorities. The mayor and merchants of Hoganas openly announced that they would be accepting the euro as of January 1, 2009, and no national efforts were made to stop them, although it was accepted that such actions were in contravention of Swedish governmental and popular policy regarding the use of the euro and the retention of the krona.

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Taken together, these examples suggest that international law is becoming the site of fluidity in the relationship between sovereignty and territory. Certainly, the classic understanding of the fixed nature of sovereignty and territory continues to exist in international law, perhaps most obviously when a portion of a state’s sovereign territory is threatened or attacked by another state or group of actors. Yet outside of such extreme examples, fluidity does exist and international law is increasingly impacted by it.

-Susan

Lil’ Posner Says International Law Has No Independent Worth

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Eric Posner, son of my favorite Posner, has a new article out in Foreign Policy.  I read it last night and waited to comment on it because it made me inexplicably angry.  Many have focused on the part of his argument suggesting that Obama and Bush approached international law the same way.  What frustrates me, however, is his last little bit, titled “International Law is a Worthy Goal: Not at all.”  Posner argues that international law is nothing more than a means to an end, and anyone arguing otherwise is kidding themselves.*

Look, I understand the realist (state’s interests) argument that states only take action on the international stage when they get some kind of benefit out of it.  I used to be (and maybe still am) a realist.  Therefore, the realist in me suggests that creating international law might indeed be a tough task.  But it’s still one worth undertaking.  The lack of a Leviathan figure in international law might convince Posner that states will always ignore international law, so any such law is a false construction.  But it seems to me like he’s forgetting a few things (and these things are nothing new):

States generally prefer predictability and stability, something international law provides.  As Louis Henkin noted 30 years ago in How Nations Behave, most states observe most of the obligations of international law most of the time.  International law provides a set of ground rules that, when successful, provide a counter-balance to individual state interest, thus increasing predictabilility.  In other words, a good number of states include “violation of international law” in their cost-benefit analysis when determining whether to take a given international action.  As Robert Keohane has observed, a state might agree to ignore the short-term advantages of breaking from international law because “it has an overriding interest in maintaining the overall system.”  Or perhaps the state wishes to comply with the underlying norm that is the foundation of the law.  

As states grow increasingly interdependent, they want a rational way of regulating their relations and punishing “rogue acts.”  International law provides an organized means of implementing the reciprocity principles of game theory (something Susan talked about earlier) while trying to avoid problems of escalation or sanction resistance.  In an optimal international law system, a violation of international law by one member elicits a response from an entire community of states.  In other words, you have an act, followed by unified retaliation.  Thus, the system is somewhat like “super tit-for-tat.”

International law often nourishes norms that guide state practice–even outside the international law realm.  Consider free trade.  Why did we not see a sharp decline into protectionism following the recession?  Some might argue that the economics profession has led us out of the darkness.  I’m skeptical.  I would suggest that free trade has gained widespread acceptance primarily through the creation of international law structures like the WTO.  Without those laws, we might have been perfectly willing to close up the borders and stop pretending to be so free trade amenable.

Realism may not be an accurate description of the state of international affairs.  Realism seems to assume a zero-sum game: international law is always doomed to fail because one state’s interest will conflict with another.  But is zero-sum really the right conception?  There are issues where state cooperation can improve circumstances for all players in the game (perhaps most obviously in economics).  Realism also places a heavy emphasis on state-centered activity.  But in today’s global economy, are states even in the driver’s seat anymore?  I don’t want to tackle those issues here, I just want to note that they’re out there.

In sum, I’m just not convinced that we should ditch any attempt at a viable system of international law.  Posner’s example of the “illegal military intervention in Kosovo” saving lives suggests that the current system should allow for humanitarian intervention.  In doesn’t suggest we should ditch the system altogether.

*The cynical part of me says that this argument is just Posner trying to incite people to read his new book, The Perils of Global Legalism.  But who knows.

-Michael

Maybe Law School Needs A Warning Label

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Brooklyn Law Professor Anita Bernstein has suggested a solution [PDF] for the deep pessimism, cynicism, and (sometimes) depression that seems to afflict lawyers about the time they hit law school.  Bernstein thinks students should be warned about the perils of the law profession while they’re in law school; she reasons anxiety and unhappiness will be reduced if students are fully aware of the “pitfalls.”

Honestly, I’m not sure if I agree.  I simply don’t understand how further educating law students about the problems they might face as professionals will make those students feel better, particularly when law students tend to be a rather angsty and risk averse (some might say paranoid) bunch.  See, e.g., these worries about clerkships.  A full semester course about everything that can go wrong wouldn’t exactly calm my nerves.  Any law students care to comment? 

(via ABA)

-Michael

It’s not over ’til it’s over.

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Here’s a cool and very thorough article on “When is the Verdict or Judgment Final?: An Examination of Post Trial Activity in Civil Litigation”. There are a lot of neat factoids throughout, such as your odds of prevailing on a JNOV or motion for new trial (hint: they’re not good, but better if you’re the defendant) or whether post trial activity is more likely after a jury or bench trial (unsurprisingly, it’s more likely after a jury trial). Litigant characteristics also matter: plaintiffs are more likely to seek post-trial relief against an organization defendant than an individual defendants, but defendants’ rate of post-trial activity is not related to party characteristics.

In all, 35% of cases, either a post trial motion or appeal was filed. The breakdown:

“[L]itigants requested post trial relief in an estimated 28% of civil trials and filed notices of appeal in 18% of civil trials. Post trial motions were filed in nearly a third of trials won by the plaintiff and in a quarter of trials where the plaintiff did not prevail. In terms of appellate activity, appeals were filed at nearly identical rates among trials won (18%) and lost (17%) by the plaintiff. ”

And if you’ve won at trial level as a Plaintiff, it may just pay to keep on going: “In addition to the sizable minorities of plaintiff winners seeking to challenge trial court outcomes, courts granted post relief more frequently to plaintiffs than defendants. Over a third (37%) of plaintiff winners requesting post trial relief received it. Defendants, in comparison, were granted post trial relief in 1 out of 4 trials where they sought to amend or overturn trial decisions that found for the plaintiff. “

However, Plaintiffs that lose at trial are likely to keep on losing. Defendants who win, however, fare very nicely indeed: “[P]laintiffs filed post trial motions (21%) and appeals (16%) in considerable numbers of trials that they lost. Defendant winners, in comparison, sought post trial relief by filing motions or appeals in less than 5% of civil trials. In terms of ruling in favor of a post trial motion, courts granted post trial relief to only 7% of plaintiffs who sought it. Even though few defendants who won at trial requested relief, it was granted to nearly 60% of those defendants making a relief request.”

-Susan