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Human Rights in Law’s Empire: The Jurisprudence War

Published online by Cambridge University Press:  27 February 2017

Tom J. Farer
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Extract

Our intramural, often scholarly, but not always polite, debates about the legitimacy of invasions directed against more-or-less brutal authoritarian governments demonstrate how one’s preferred conception of the nature of law can affect one’s conclusions about its contents.

The celebrants of what I will call the classical view display the following characteristics: while recognizing that states can establish and alter norms through both explicit agreements normally expressed in written texts and implicit agreements manifested in practice, they tend in their epistemology toward a rather strict separation of these two processes; when attempting to identify norms arising from explicit agreements, they presume that the parties had an original intention which can be discovered primarily through textual analysis and which, in the absence of some unforeseen change in circumstances, must be respected until the agreement has expired according to its terms or been replaced by mutual consent; when attempting to identify norms arising from implicit agreement, they rely primarily on relatively formal manifestations of consent, deemphasize the relative power of states, and imply a high threshold below which alleged norms are entirely without legal character.

Type
Editorial Comments
Information
American Journal of International Law , Volume 85 , Issue 1 , January 1991 , pp. 117 - 127
Copyright
Copyright © American Society of International Law 1991

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References

1 A recent instance in the pages of this Journal is the exchange among Anthony D’Amato, Tom Farer, and Ved Nanda, Agora: U.S. Forces in Panama: Defenders, Aggressors or Human Rights Activists?, 84 AJIL 494 (1990).

Among many previous examples are the following: F. Tesón, Humanitarian Intervention (1988); Humanitarian Intervention and the United Nations (R. Lillich ed. 1973); Bazyler, Reexamining the Doctrine of Humanitarian Intervention in Light of the Atrocities in Kampuchea and Ethiopia, 23 Stan. J. Int’l L. 547 (1987); Levitan, The Law of Force and the Force of Law: Grenada, the Falklands, and Humanitarian Intervention, 27 Harv. Int’l L.J. 621 (1988); Schachter, In Defense of International Rules on the Use of Force, 53 U. Chi. L. Rev. 113, 142–44 (1986) [hereinafter Defense); Reisman, Coercion and Self-Determination: Construing Charter Article 2(4), and Schachter, The Legality of Pro-Democratic Invasion, 78 AJIL 642, 645 (1984); Hassan, Realpolitih in International Law: After Tanzanian-Ugandan Conflict “Humanitarian Intervention” Reexamined, 17 Willamette L. Rev. 859 (1981); Franck & Rodley, After Bangladesh: The Law of Humanitarian Intervention by Military Force, 67 AJIL 275 (1973); Fonteyne, The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity Under the U.N. Charter, 4 Cal. West. Int’l L.J. 203 (1974); De Schutter, Humanitarian Intervention: A United Nations Task, 3 Cal. West. Int’l L.J. 21 (1972).

2 The point is neatly illustrated in the good-natured tussle between Professors Nanda and D’Amato, supra note 1.

3 Among the principal works applying and elaborating the jurisprudential views of the Yale School are the following: M. S. Mcdougal & Associates, Studies in World Public Order (1960); M. S. McDougal & F. Feliciano, Law and Minimum World Order (1961); M. S. McDougal & W. Burke, The Public Order of the Oceans (1962); M. S. McDougal & H. Lasswell, The Interpretation of Agreements and World Public Order (1967); M. S. McDougal, H. Lasswell & L. Chen, Human Rights and World Public Order (1980); and M. S. McDougal & W. M. Reisman, International Law in Contemporary Perspective: The Order of the World Community (1981).

For a recent summary by Professor McDougal of his recommended methodology, see his exchange with Professor Gray Dorsey, Agora: McDougal-Lasswell Redux, 82 AJIL 41 (1988) [hereinafter McDougal].

4 Compare Michael Reisman’s remark that

[international lawyers … persist in constructing their normative universe from texts. Thus they confine their attention to sources of international law that were either merely ceremonial at their inception, or that, although animated by more normative intentions when they were created, have ceased to be congruent with expectations of authority and control held by effective elites.

Reisman, International Incidents: Introduction to a New Genre in the Study of International Law, in International Incidents 3, 6–7 (M. Reisman & A. Willard eds. 1988). See also McDougal, supra note 3, at 55: “[Recommended intellectual procedures include the] examination of past trends in decision upon problems raising comparable policies for whatever wisdom they may yield about options in decision and the value consequences of different options” (emphasis added).

5 See, e.g., Reisman, supra note 4, at 16: commenting on the classicists’ approach to identifying customary rules of international law, he says that their “examinations of practice do not control for the variable of power.”

6 The idea of interstate relations as an “anarchical system” was skillfully elaborated by Hedley Bull in The Anarchical Society (1977).

7 See Reisman, supra note 4, at 6:

The reasons for the diminished relevance of international lawyers are attributable less to the system … than to the international lawyers themselves and the jurisprudential framework within which they operate. For key areas of public international law, international lawyers make themselves irrelevant by failing to identify what international law in this context is and by failing to report it to those to whom they are responsible.

See further note 29 infra.

8 A. D’Amato, International Law: Process and Prospect 229–32 (1986). While D’Amato is not a direct descendant of Lasswell and McDougal, he employs an epistemology very much like theirs and therefore can be said to reside within realism’s intellectual domain.

9 Id. at 231.

10 For a survey of the travaux préparatories and other indices of original intent concerning the legitimate use of force, see Farer, Laiv and War, in 3 The Future of the International Legal Order: Conflict Management 15 (C. Black & R. Falk eds. 1971).

11 For a balanced and persuasive account of original intention concerning the use of force written by a classicist who is sensitive to the concerns of realist scholars, see Schachter, Defense, supra note 1, and his International Law: The Right of States to Use Armed Force, 82 Mich. L. Rev. 1620 (1984) [hereinafter International Law]. See also Farer, International Law: The Critics Are Wrong, Foreign Pol’y, No. 71, Summer 1988, at 22.

12 See, e.g., Pogany, Humanitarian Intervention in International Law: The French Intervention in Syria Reexamined, 35 Int’l & Comp. L.Q. 182 (1981).

13 Mayer, The International Bill of Rights: A Brief History, in The International Bill of Human Rights, at xxiv (P. Williams ed. 1981).

14 Commission on Human Rights, Report of the First Session, UN Doc. E/259, paras. 21,22(1947).

15 Compare Reisman, supra note 4, at 12–13:

Even if there is little divergence between myth system and operational code, the differing rate of decay of text and context may limit the usefulness of formal sources of law… . Once legislation is expressed in relatively enduring textual form, however, its rate of decay is minimal; the rate of decay of the encompassing sociopolitical situation will always be greater and may, indeed, be extremely rapid.

Where fidelity to text acquires in itself a symbolic political value, texts whose literal congruence with the sociopolitical situation is less than when they were created may misguide those who would rely on them.

16 For differing legal assessments, see the AJIL Agora, supra note 1.

17 For a range of views, see Levitan, supra note 1; Note, The Grenada Invasion: Expanding the Scope of Humanitarian Intervention, 8 B.C. Int’l & Comp. L. Rev. 413 (1985); Schachter, International Law, supra note 11,at 1640–41; Joyner, Reflections on the Lawfulness of Invasion, 78 AJIL 131 (1984); Moore, Grenada and the International Double Standard, id. at 145; and Vagts, International Law under Time Pressure: Grading the Grenada Take-Home Examination, id. at 169.

18 See OAS, CP/Res. 534 (800/89) (Dec. 22, 1989).

19 GA Res. 38/7 (Nov. 2, 1983).

20 See, e.g., J. Stone, Aggression and World Order, esp. at 92–103 (1958).

21 Well before the end of World War II, important participants in the U.S. foreign policy establishment had concluded that the postwar relationship with the USSR was likely to be tense, in part because Stalin would seek to exert Soviet influence beyond his country’s borders. Hence, they could not have been surprised by the immediate lack of cooperation in the Security Council between the wartime allies. By definition, rebus sic stantibus is inapplicable to conditions that the parties could reasonably have foreseen. See generally J. L. Gaddis, Strategies of Containment, esp. at 10–15 (1982).

22 A. D’Amato, supra note 8, at 227.

23 Id. at 231 (emphasis added).

24 Reisman, supra note 4, at 22.

25 H. L. A. Hart, The Concept of Law (1961).

26 See, e.g., International Regimes (S. Krassner ed. 1983).

27 See. J. Ray, Global Politics 147–64 (4th ed. 1990).

28 T. Franck, The Power of Legitimacy Among Nations 58 (1990).

29 Note, for example, Professor D’Amato’s observation that

[i]f Dr. Michael Akehurst and the many who follow him have their way, their books will never be out of date because they proclaim and set forth unchanging legal principles to which governments, regardless of what they actually do, pay lip service. [Professor D’Amato does not give a satisfactory account of why lip service is paid.] … I would argue that customary law grows and changes over time as a result of the interactions of states in the international arena (the facts) and the rules we may infer from those interactions as the theory that best fits what the states did (even if it was not, or was only partly, what they said they were doing). It is surely more difficult to do this kind of international law research than to follow Dr. Akehurst and simply take governmental statements at face value.

A. D’Amato, supra note 8, at 230–31.

In a similar vein, Professor Reisman has written:

The transposition of the case unit to the international arena has permitted international lawyers to dwell in a comforting pool of light. Yet much of the resulting international legal description is patently out of step with elite expectations. The discrepancy is so painfully obvious that, outside the small circle of international lawyers, it brings discredit upon the very notion of international law. Small wonder that political advisors rarely use their international lawyers.

Reisman, supra note 4, at 15 (footnote omitted).

30 A. D’Amato, supra note 8, at 54.

31 GA Res. 3314 (XXIX) (Dec. 14, 1974).

32 GA Res. 2625 (XXV) (Oct. 24, 1970).

33 OAS, CP/Res. 534, supra note 18.

34 GA Res. 38/7, supra note 19.

35 GA Res. 41/38 (Dec. 4, 1986).

36 See, e.g., Bazyler, supra note 1, at 598–611.