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The Legal Relations of Collectives: Belated Insights from Hohfeld

Published online by Cambridge University Press:  01 June 2009

JOHN R. MORSS
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Abstract

Collectives and their interrelations are central to international law. Legal relations between collectives can be analysed with reference to the classic account of Hohfeld without reducing those collectives to mere aggregates of individuals and without recourse to the legal fiction of treating the collective, for example the state, as a quasi-individual. The rights of collectives have been widely if not conclusively explored within international law, but Hohfeld's ‘field’ approach to legal relations enables the scrutiny of the range of relations, including immunities, liberties, powers, and disabilities, as well as claim-rights and the corresponding obligations in others. The main substantive topics for discussion are the legal relations of collective entities such as peoples and minorities, and closely related matters such as self-determination. Applying Hohfeldian analysis to international law highlights the centrality of international collective entities of which the state represents only one variety. The approach described here therefore takes account of the dethroning of the state within contemporary international law and contributes to the theorization of that development. Nearly one hundred years after its first appearance, Hohfeld's analytic scheme continues to generate insights for international law.

Keywords

collectiveHohfeldpeoplesresponsibilitiesrightsself-determinationstatehood
Type
ARTICLES
Information
Leiden Journal of International Law , Volume 22 , Issue 2 , June 2009 , pp. 289 - 305
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2009

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References

1 For a critique of ‘the state as Self’, see Jodoin, S., ‘International Law and Alterity: The State and the Other’, (2008) 21 Leiden Journal of International Law 1Google Scholar, at 25. Westlake noted over one hundred years ago that ‘startling results flowed from the absolute parity . . . asserted between the technical individual formed by the state and the natural man’: J. Westlake, ‘Chapters on International Law’, in Westlake, J., The Collected Papers of John Westlake on Public International Law, ed. Oppenheim, L. (1914), 65Google Scholar.

2 Ratner, S., ‘Is International Law Impartial?’, (2005) 11 Legal Theory 39CrossRefGoogle Scholar, at 52. ‘Duties of peoples’ is an example of what will here be broadly referred to as ‘collective responsibilities’.

3 It should be emphasized that the reciprocity discussed in this paper is ‘external’, as between different states in this example, as when a duty in state X correlates with a (claim-)right in state Y. What might be called ‘internal’ reciprocity – intrinsic links between a right in X and a duty in X – is also a familiar notion within international law, for example in Huber's well-known argument in The Island of Palmas arbitration that a state's territorial sovereignty rights bring with them important correlated responsibilities. A synthesis of external and internal analysis has been attempted in the literature (see infra, note 18); that project is not pursued here.

4 Crawford, J., ‘The Rights of Peoples: “Peoples” or “Governments”?’, in Crawford, J. (ed.), The Rights of Peoples (1988), 55Google Scholar at 55. At the same time a state is of course much more than just a ‘factual collective entity’. Crawford, J., ‘Multilateral Rights and Obligations in International Law’, (2006) 319 RCADI 329Google Scholar, at 460.

5 ‘Groups of individuals, such as nations or ethnic minorities, plausibly have rights as well.’ A. Marmor, Law in the Age of Pluralism (2007), at 233. Similarly, Waldron has emphasized that ‘[t]here is no logical difficulty with the idea of group rights’. Waldron, J., ‘Taking Group Rights Carefully’, in Huscroft, G. and Rishworth, P. (eds.), Litigating Rights: Perspectives from Domestic and International Law (2002) 203Google Scholar, at 203.

6 Kutz, C., ‘The Collective Work of Citizenship’, (2002) 8 Legal Theory 471CrossRefGoogle Scholar, at 47; on the international legal ‘self’, see K. Knop, Diversity and Self-Determination in International Law (2002), at 118.

7 Crawford, Rights of Peoples, supra note 4.

8 Koskenniemi, M., ‘The Fate of Public International Law: Between Technique and Politics’, (2007) 70 Modern Law Review 1CrossRefGoogle Scholar, at 3.

9 This notion chimes with, but perhaps extends even more broadly than, Jodoin's ‘baroque’ notion of ‘non-exclusive, overlapping, non-territorial, dissimilar, heteronomous logics of organization whereby individuals [are] subject to multiple sovereignties and authorities’. Jodoin, supra note 1, at 25–6. The International Court of Justice has examined the generic (international) ‘legal entity’ in the Western Sahara Opinion; see Knop, supra note 6, at 119.

10 J. Crawford, ‘Foreword’, in C. Tams, Enforcing Obligations Erga Omnes in International Law (2005), xiii.

11 J. Crawford, The Creation of States in International Law (2006), at 324.

12 Ratner, supra note 2, at 47.

13 Crawford, supra note 11, at 30; thus legal personality ‘is a compendious way of inferring certain capacities and powers in international law; it is the conclusion to be drawn from the answers to more fundamental questions as to the rights, powers and responsibilities of the particular entity’. Ibid., at 350.

14 Hohfeld, W. N., ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’, (1913) XXIII Yale Law Journal 16CrossRefGoogle Scholar. Hohfeld's scheme may be outlined as follows:

15 Ibid., at 49.

16 Crawford, supra note 11, at 83; Makinson, D., ‘Rights of Peoples: Point of View of a Logician’, in Crawford, J. (ed.), The Rights of Peoples (1988), 69Google Scholar at 70; Crawford, ‘Rights of Peoples’, supra note 4, at 55.

17 Craven, M., ‘The Violence of Dispossession: Extra-territoriality and Economic, Social, and Cultural Rights’, in Baderin, M. and McCorquodale, R. (eds.), Economic, Social, and Cultural Rights in Action (2007), 71CrossRefGoogle Scholar at 81, 82.

18 Trakman and Gatien agree that a Hohfeldian analysis can be applied to groups: Trakman, L. and Gatien, S., Rights and Responsibilities (1999), 188Google Scholar. However, their approach is based on supplementing Hohfeld's ‘external’ analysis of correlations (as between actors) with a non-Hohfeldian account of ‘internal’ limits; ibid., at 9, 18. Further, it is simply incorrect to present the paradigmatic Hohfeldian relation as an overriding right in A coupled with the consequence that ‘[a]ll others are disadvantaged by having a duty to respect that right’. Ibid., at 53. More strikingly erroneous is Trakman and Gatien's characterization of the Hohfeldian rights-holder as enjoyer of ‘a free lunch at the expense of others’ (!). Ibid., at 60 (emphasis in original). One aim of the present paper is to indicate the value of a rigorous Hohfeldian approach to collective legal relations.

19 Crawford, J., The International Law Commission's Articles on State Responsibility (2002), 25Google Scholar.

20 Crawford, supra note 11, at 7.

21 Ibid., at 41.

22 Indeed, a focus on the collective aspect or reading of a Hohfeldian scheme helps to rehabilitate Hohfeld more generally. For one difficulty with Hohfeld's analysis is that some of the common municipal duties (for example to pay one's taxes or to serve in the military) do not seem to correspond to a correlative right in an individual rights-holder. But ‘any public duty is owed to a collectivity (the state, the nation, the community) which holds the correlative right’. M. Kramer, N. Simmonds, and H. Steiner, A Debate over Rights (1998), at 59.

23 Ibid., at 49.

24 Ibid., at 54.

25 Ibid., at 53.

26 The collective-focused, ‘field’ application of Hohfeld should contribute to defining the genuinely multilateral legal relations (‘which involve rights or obligations held in common by a group or class of legal persons as such’) and thereby distinguishing them from bilateral relations however much duplicated among parties as in many multilateral agreements: Crawford, ‘Multilateral Rights’, supra note 4, at 346.

27 As Kutz remarks, needed is a ‘way of incorporating into liberal theory a conception of social and political agency that recognizes the pervasiveness of collective agency but that does not lapse into Romantic (or fascist) organicism’. Kutz, supra note 6, at 472 (‘organicism’ might be thought of as an extreme form of communitarian analysis); see also D. Dyzenhaus (ed.), Law as Politics (1998). The hazards are noted by Carty in the international law context: Carty, A., ‘International Legal Personality and the End of the Subject: Natural Law and Phenomenological Responses to New Approaches to International Law’, (2005) 6 Melbourne Journal of International Law 534Google Scholar, at 540.

28 On the application of Hohfeld in the area of human rights, Hinsch and Stepanians advocate Hohfeld's ‘classical’ account of rights correlated with duties, both treated individualistically: see Hinsch, W. and Stepanians, M., ‘Severe Poverty as a Human Rights Violation – Weak and Strong’, in Follesdal, A. and Pogge, T. (eds.), Real World Justice: Grounds, Principles, Human Rights and Institutions (2005) 295Google Scholar, at 301, 311; also see Pogge, T., ‘Severe Poverty as a Human Rights Violation’ in Pogge, T. (ed.), Freedom from Poverty as a Human Right: Who Owes What to the Very Poor? (2007), 11Google Scholar at 48; Sengupta, A., ‘Poverty Eradication and Human Rights’, in Pogge, T. (ed.), Freedom from Poverty as a Human Right: Who Owes What to the Very Poor? (2007), 323Google Scholar at 326.

29 Waldron, J., ‘From Authors to Copiers’, (1993) 68 Chicago-Kent Law Review, 841Google Scholar at 843.

30 N. Simmonds, Law as a Moral Idea (2007), at 193.

31 This comment might suggest endorsement of a classic ‘Vattelian’ approach to international law, according to which sovereign states are monad-like (their internal structures and affairs being of no concern). However, while such an approach is a valid example of the field orientation, that orientation is not exhausted by the example, as the rest of the paper will attempt to demonstrate.

32 Halpin, A., ‘Fundamental Legal Conceptions Reconsidered’, (2003) 16 Canadian Journal of Law and Jurisprudence, 41CrossRefGoogle Scholar at 41.

33 Morss, J. R., ‘Good Global Governance: Custom, the Cosmopolitan and International Law’, (2007) 3 International Journal of Law in Context, 59CrossRefGoogle Scholar at 69.

34 Kramer, Simmonds, and Steiner, supra note 22, at 60.

35 The sentence as model is inspired by the paradigmatic/syntagmatic in the structuralist linguistics of Barthes: E. Leach, Levi-Strauss (1970), at 47.

36 Kramer, Simmonds, and Steiner, supra note 22, at 47. In a second Yale Law Journal article (with the same name) four years later, Hohfeld examined the application of his scheme to legal relations in the sphere of real property, observing for example that the fee-simple involves ‘a complex aggregate of rights (or claims), privileges, powers and immunities’. Hohfeld, W. N., ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’, (1917) 26 Yale Law Journal 710CrossRefGoogle Scholar, at 746; yet the aggregation is merely contingent, since analytically rights and privileges are distinct and independent. Ibid., at 748.

37 Kramer, Simmonds, and Steiner, supra note 22, at 81, 84.

38 Ibid., at 51.

39 Ibid., at 53. Of course, each and every member of a group may, as an individual, bear the same (distributed) substantive duty toward some other individual. Such plurality of ‘orthodox’ Hohfeldian obligations or entitlements may well play an important role in international law, and may thus contribute to a particular factual matrix. But in the interests of clarity of exposition and of theoretical innovation, the primary focus here will be on collectives as such, not on pluralities or aggregates of individuals, all of whom may exhibit certain attributes.

40 Crawford, Rights of Peoples, supra note 4, at 58.

41 Ibid., at 60; J. Crawford, ‘The Rights of Peoples: Some Conclusions’, ibid., 159 at 162.

42 Ibid., at 169.

43 Ibid., at 61.

44 Or, as one might say, rhetorical, as with the term ‘menshevik’ (as contrasted with ‘bolshevik’) in Russian political history.

45 See Crawford's commentary on Art. 48: Crawford, supra note 19, at 278.

46 This approach is consistent with the effect, if not with the verbal formulation, of Buchanan's analysis: A. Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (2004). Relatedly, Buchanan warns against the employment of the term ‘right’ in relation to self-determination, at 333.

47 In the East Timor case at the International Court of Justice (1995): see Crawford, supra note 19, at 278.

48 According to the ICJ obligations erga omnes arise in relation to certain ubiquitous rights including the protection of individuals from slavery and from racial discrimination: Tams, supra note 10, at 257; [1970] ICJ Rep. 3; see Crawford, supra note 10, at xiii; Crawford, ‘Multilateral Rights’, supra note 4, at 415. The ‘international community as a whole’ is clearly a collective entity of some kind. It should not be thought of as limited to the set of presently recognized states even though the latter must be part of the international community as a whole and must indeed be pre-eminent within it given present-day political realities: Crawford, supra note 19, at 278; Crawford, supra note 10, at xiv; Crawford, supra note 11, at 41; Crawford, ‘Multilateral Rights’, supra note 4, at 447.

49 See Guilfoyle, D., ‘Interdicting Vessels to Enforce the Common Interest: Maritime Countermeasures and the Use of Force on the High Seas’, (2007) 56 ICLQ 69CrossRefGoogle Scholar. More generally, while a set of exemplars of the provision erga omnes is available, it has been commented that there currently exists little more than ‘a patchwork of loosely related erga omnes effects’. Tams, supra note 10, at 115.

50 M. Ragazzi, The Concept of International Obligations Erga Omnes (1997).

51 The international community as a whole is thus larger than the set to which reference is made in the definition of peremptory norm under the Vienna Convention on the Law of Treaties; peremptory norms are said to be norms ‘accepted and recognized by the international community of States as a whole’. 1969 Vienna Convention on the Law of Treaties (1969), Art. 53. To the extent that obligations (or other ‘Hohfeldian’ legal relations) can properly be said to obtain in relation to the international community as a whole, it would be clear that the latter is a collective of an extraordinary variety, a collective much further removed from the natural individual person as legal bearer of rights, duties, and so on even than the state qua collective.

52 Crawford, supra note 11, at 37; Crawford, supra note 10, at xiv. Of course it may well be observed that all true duties are peremptory, as is emphasized by H. L. A. Hart: Hinsch and Stepanians, supra note 28, at 298; see also Morss, J. R., ‘Sources of Doubt, Sources of Duty: H. L. A. Hart on International Law’, (2005) 10 Deakin Law Review 41CrossRefGoogle Scholar.

53 However, the applicability of peremptory norms to peoples has been canvassed: A. Orakhelashvili, Peremptory Norms in International Law (2006), 1.

54 The Latin grammar is somewhat awkward (‘obligations against all’), so that erga should be glossed as ‘with respect to.’

55 Crawford, supra note 19, at 279.

56 Waldron, supra note 5, at 220.

57 J. Waldron, ‘The Dignity of Groups’, Public Law and Legal Theory Research Paper Series, Working Paper No. 08–53, NYU School of Law, 2008, http://ssrn.com/abstract=1287174 (accessed 11 November 2008).

58 Trakman and Gatien, supra note 18, at 231. None of these terms is entirely felicitous, since ‘advantage’ and ‘disadvantage’ are evaluations distinct from the Hohfeldian analysis as such and stand in no necessary relation to it; ‘disadvantage’ should be thought of as including ‘risk of disadvantage’, since liability (for example) may involve receipt (from the ‘power-wielder’) of a gift, which might turn out to be advantageous or disadvantageous: Halpin, A., ‘Rights, Duties, Liabilities, and Hohfeld’, (2007) 13 Legal Theory 23CrossRefGoogle Scholar, at 26.

59 To avoid confusion with the rather general term ‘responsibility’, the term ‘culpability’ will be employed here to indicate the actionable attribution of wrongfulness either in a criminal or quasi-criminal sense (as in international criminal justice systems), or in the sense of a dispute over an international wrongful act between international entities such as states.

60 Nevill, P., ‘Reconciling the Clash between UK Obligations under the UN Charter and the ECHR in Domestic Law: Towards Systemic Integration?’, (2008) 67 Cambridge Law Journal 447CrossRefGoogle Scholar.

61 Young, M., ‘The WTO's Use of Relevant Rules of International Law: An Analysis of the Biotech Case’, (2007) 56 ICLQ 907Google Scholar.

62 M. Young, ‘Toward a Legal Framework for Regime Interaction: Lessons from International Trade and Fisheries Regimes’, Seminar, Lauterpacht Research Centre for International Law, Cambridge University, 21 November 2008.

63 Crawford, ‘Multilateral Rights’, supra note 4, at 346. It can also be said that citizens share in the responsibilities of their state (for example over human rights) as an institutional order which they as citizens play a part in maintaining: Pogge, T., World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms (2002), 67Google Scholar. Going far beyond this, but with a boundary that is hard to mark, is the form of responsibility in the individual citizen that is asserted when she or he is ‘blamed’ for a state's actions, as would seem to be the case with a terrorist attack: Jodoin, supra note 1, at 19.

64 Allen Buchanan describes the claim-right (as exemplified by human rights) as having as an essential element a permission or liberty (privilege) as well as a correlative obligation: Buchanan, supra note 46, at 123. This is, of course, not Hohfeld's position, but instead an assertion relating to a norm as I here define it – that is, a package of Hohfeldian relations. The right as such (identified by Buchanan in Hohfeldian vocabulary) is correlated with no liberty. Buchanan restates his position in Buchanan, A., ‘Human Rights and the Legitimacy of the International Legal Order’, (2008) 14 Legal Theory 39CrossRefGoogle Scholar, at 45, 57. Buchanan further notes (ibid.) that some claim-rights such as freedom of conscience also include related immunities. Again the proposal should be seen as being about norms rather than about rights, otherwise a category mistake is being made. This comment is intended to clarify rather than to evaluate (still less dismiss) Buchanan's contribution to the debate.

65 Waldron, supra note 5, at 218.

66 This attractively simple hierarchical formulation suggests that the creation of norms is to be considered distinct from the operation of legal power as such, that is to say operating at a different level. To treat the concept of legal jurisdiction as connoting a norm-creating form of Hohfeldian power, that is to say to treat it along the lines urged by Alexy, would thus be considered incoherent. Debate over the difficult concept of legal jurisdiction is therefore sharpened by the articulation of a collective-Hohfeldian account as attempted here. For a careful and stimulating account of legal jurisdiction favourable to Alexy's analysis see Capps, P., Evans, M., and Konstadinidis, S., Asserting Jurisdiction: International and European Law Perspectives (2003), xviiGoogle Scholar at xix.

67 See Weil, P., ‘Towards Relative Normativity in International Law?’, (1983) 77 AJIL 413CrossRefGoogle Scholar.

68 Capps, P., ‘Positivism in Law and International Law’, in Himma, K. (ed.), Law, Morality, and Legal Positivism (2004), 9Google Scholar at 14; Kutz, C., Complicity: Ethics and Law for a Collective Age (2000), 71Google Scholar; Morss, supra note 33, at 62; Ratner, supra note 2, at 57. A Hohfeldian contribution to the general law of consent is explored by D. Beyleveld and R. Brownsword, Consent in the Law (2007). A topic for future consideration is the relevance for international law of the debate between ‘will’ and ‘interest’ theories of rights as informed by a Hohfeldian analysis (see Kramer, Simmonds, and Steiner, supra note 22). In the international law context, legal senses of both voluntary choice (in the form of state ‘will’, especially as represented by consent) and objective benefit – features on which weight is placed under the will and the interest theories of rights, respectively – may be identified.

69 Crawford, supra note 11, at 40.

70 Ibid., at 30. However, as noted above, questions of legal personhood or subjecthood should be considered secondary to investigations of actual legal position and might indeed be illuminated by the scrutiny of the latter.

71 Elder, S., ‘Progress toward International Accord’, (1913) 23 Yale Law Journal 1CrossRefGoogle Scholar, at 4.