by Andreas Laursen. Copenhagen: DJØF Publishing, 2006. 348pp. Paperback. $51. €48.00 / £31.00 / $60.00. ISBN: 8757415293.
Reviewed by Akbar Rasulov, School of Law, University of Glasgow, United Kingdom. Email: a.rasulov [at] law.gla.ac.uk.
THE FIRST IMPRESSION
This book has two main merits: it reads fast and it is very rich in detail. The author clearly must have spent a lot of time collecting his materials and checking his sources. The amount of factual information packed into CHANGING INTERNATIONAL LAW TO MEET NEW CHALLENGES (CILMNC) is simply staggering. From the details of the oral pleadings in a forty-year-old International Court of Justice case to the White House press briefings, the extent of data covered, especially in the footnotes and asides, is openly overwhelming. I have not read his other works yet, but on the strengths of this showing, Andreas Laursen seems to be one of those rare scholars who has read virtually everything that has ever been said or printed on their topic and who always seems to have a footnote ready to prove it. CILMNC references everything and anything from the half-forgotten dissenting opinions to legal theory volumes, the preliminary reports of UN working groups, and articles in The New York Times. The intensity of such a single-minded commitment is nothing short of remarkable.
The second thing that is most striking about CILMNC is the astonishing number of typos, spelling mistakes, and other irregularities of formatting it carries. On one occasion, within the space of less than half a page, the referencing style for scholarly works changes three times (p.11). On another occasion, an informal acronym for an international convention is introduced into the text (p.16) nine pages before it is actually spelled out (p.25). “Point” turns to “pint” (p.128), “ministerial” to “ministrial” (p.130), “Congress” to “Congoress” (p.276). Personal names hardly fare better. “Chesterman” repeatedly loses the first “e” (pp.15, 21, 303), “Philippe Sands” becomes “Philip” (pp.242, 313), Myres McDougal is called both “Myres” and “Myers” (pp.48, 154); Dino Kritsiotis, both “Dino” and “Dina” (pp.174, 223, 283). Not all of these, furthermore, are just regular typos: the English “Byers and Nolte” routinely changes to the Danish “Byers og Nolte” (pp.10, 167, 185, 189, 293). It is difficult to say whose fault all this must be in the end, the author’s or the publisher’s, but in either case, one feels, one had the right to expect a higher standard of editorial due-care from a volume that began its life as a doctoral thesis defended at the European University Institute in Florence (p.v).
THE PRAGMATIC SIDE: WHAT IS CILMNC ABOUT AND WHO ARE ITS TARGET AUDIENCE? [*264]
The best way to understand the pragmatic aspect of CILMNC would be to approach it against the background of the broader scholarly field in the midst of which it tries to situate itself. Keeping in mind the alleged cultural differences dividing the North Atlantic international law community, the first thing to be said about CILMNC is that it reads and “acts” as a very European work written on a very European topic. One of the most revealing patterns of European international law scholarship in the last decade or so has been the rapid renewal of interest in publishing single-author books about international law on the use of armed force (jus ad bellum). At least a half-dozen monographs have been produced in recent years in France alone. Even more have been produced in Britain and the Netherlands. The quickest way to describe CILMNC in this context would be to say that, on the one hand, it represents one of the most typically “continental” contributions to the newly blossoming genre, while, on the other hand, it still manages to share all the genre’s usual strengths and, inevitably, all of its traditional weaknesses.
In Laursen’s own words, the central objective behind CILMNC is to attempt a comprehensive overview of the various customary law trends that have taken shape in the jus ad bellum field since the mid-1990s, with special emphasis on questions of international terrorism and humanitarian intervention. As the recent history from the 1999 Kosovo campaign to the inception of the so-called “war on terror” shows, argues Laursen, academic developments in the field of jus ad bellum have been and continue to be exceptionally important. “The academic debate matters,” he writes, pointing out the fact that the judges on the ICJ not only “care enough to express concern” about it, but even go so far as to engage with it openly. What this means, obviously, he explains, is that the development of the scholarly consensus in this area certainly has an impact on development of the broader international legal process (p.15). Consequently, it could hardly be more urgent to try to set the record straight on who is right and who is wrong among the jus ad bellum scholars, and that is exactly the first main task of CILMNC.
The first category of those who are clearly wrong, begins Laursen, has been identified by the ICJ judges themselves. In a recent ICJ case, he notes, an eminent European judge very anxiously pointed out that “an increasing number of writers appear to prepare for the outright funeral of international legal limitations on the use of force” (p.14). Who exactly did he have in mind? The judge in question did not go so far as to name any particular names. His ad-hoc colleague, however, taking advantage of the opportunity, openly identified the former US ambassador to the UN, John Bolton, as the ideological leader of the pack (p.14). A few paragraphs later, a quote from Byers and Chesterman adds a further clarification, providing CILMNC with its first political premise: “a novel conception of international law . . . is being constructed and reinforced by a limited group of Anglo-American international lawyers” (p.15). The most important representative of this limited group, continues Laursen, is Tufts [*265] University professor, Michael Glennon (pp.15-20).
Glennon’s main argument, according to Laursen, essentially boils down to the view that “the regime governing the use of force, that has been established by the UN Charter, has collapsed” (p.16). That view, Laursen argues, is completely and irredeemably wrong. It is not based on any reliable body of evidence. It does not have behind it a rigorous theoretical argument. More importantly, it also betrays a very troubling professional and political ideology. Quite predictably, against such a background, sharing the ICJ judges’ profound concerns about the potential impact the “funeral” of jus ad bellum may have on the stability of the world public order, Laursen decides to write a response to Glennon and Co. to ward off their attack and defend the professional culture of international law scholars’ fighting for the triumph of the international rule of law.
Alas, the first problem with that conception is that it seems to have largely failed. The immediate project into which the idea was transformed was fundamentally misconceived both from the practical and the professional-political points of view. Releasing a monograph in continental Europe in response to a series of articles published in the United States is not, on any interpretation of events, an effective way to wage a professional-political struggle. What kind of audiences could one expect to reach and win this way that have not already been reached and, where possible, won? Diplomats and judges? Military commanders? The wretched brainwashed students of the “limited group of Anglo-American international lawyers”? Or, maybe, the limited group itself – people, who (if we believe that secret-scholarly-clique-governs-the-world view of legal history which Byers and Chesterman, themselves, of course, being scholars, seem to be so eager to cultivate) are in fact so powerful that they not only can apparently construct and reinforce at their discretion nothing less than a whole “conception of international law” but also lay to rest the legal regimes established by the UN Charter? Presuming a professional conspiracy of such Illuminati-style resourcefulness is in fact something more than just a convenient myth for the idle minds, how exactly is publishing a limited-release scholarly monograph about the meaning of customary law and the “importance of subsequent practice in the application of a treaty as an element of interpretation” (p.270) going to do anything to stop it? What exactly is it going to achieve on the battlefield of professional struggles?
Consider once again the sequence of what Laursen is actually saying. Somewhere in the Anglo-American world there exists now a sinister scholarly clique, led by the likes of Bolton and Glennon, that wants to destroy the existing regime of jus ad bellum. They are very powerful and have recently gone on the offensive. Whoever is concerned about the stability of the world public order must immediately stand up against them. Thankfully, the clique’s masters are not invulnerable. There is a way to defeat them. Let us go back to the classical doctrine of sources, juggle with the concept of international custom, and resuscitate, in the process, [*266] one of the most unmanageable theories of treaty interpretation. Its practical wisdom and aesthetic beauty will repel the all-powerful conspiracy. And the rule of law will triumph. And the stability of the world order will be guaranteed. And nobody who reads this book will recall that exactly the same scenario had been identified by David Kennedy twenty years earlier when he described what actually happens to the traditional international law doctrine in times of its disintegration: unable to provide an effective resolution in the field of substantive normative argument (law of war), it relocates the inquiry into the field of legal sources (custom), wherefrom, because of the latter’s own structural incoherence, it eventually moves to the field of process (treaty interpretation), which then sends everything back to sources, and thus ad infinitum (Kennedy, 1987: 272-3).
THE LEGAL THEORY BEHIND CILMNC’S ARGUMENT
As a work of international legal scholarship, CILMNC makes two very important methodological promises. First, it promises “to analyse how the rules of international law that govern the use of force have met the challenge that is posed by terrorist violence and state responses” (p.20). Second, it promises to articulate and defend against that backdrop the following thesis: far from beginning to fall and wither away over the last decade or so, the modern international “rules regulating the use of force have [actually] exhibited dynamism and adaptability in the face of changing threats” (p.300) – or, in other words, despite everything that happened since Kosovo and before, the international legal regimes established in the area of jus ad bellum are still very much alive, kicking, and practically relevant to the course of international politics. Neither of these promises, in the end, alas, is kept satisfactorily.
The reason for this failure, however, has nothing to do with Laursen’s diligence or lack of commitment. It is not that he does not want to deliver on his promises or that he does not manage to detail every single statement he could find that was made in the international arena and that could, however remotely, qualify as an act of custom-forming state practice. He certainly does all of that, and very conscientiously, although most of his sources display a very conspicuous North Atlantic bias.
The problem, rather, lies in the basic analytical apparatus he employs to produce his arguments. To use a slightly crude metaphor, the vehicle he drives was not made to cross the kind of terrain he entered. Its wheels do not turn there. It breaks down as soon as he enters the field and no amount of inspiration and commitment can change that.
Then again, all Laursen does on this front is simply follow the established conventions of the genre. The vehicle he chose is the preferred vehicle of choice for almost all European scholars writing about jus ad bellum today. Can one be faulted for being loyal to one’s team? Or is it professionally unacceptable to speak of legal scholarship in terms of teams? Does the academic debate, especially in international law, not influence the patterns of legal interpretation, and does [*267] the latter, especially in this area of international law, not “take place in a field of pain and death” (Cover, 1986: 1601)? And does this specter of pain and death not make it incumbent on every jus ad bellum scholar to be far more responsible and self-aware when they choose their theoretical apparatuses than they would have to be if international law was only a board game?
What is Laursen’s theoretical apparatus in CILMNC? The answer is not that difficult to find. Although he only openly acknowledges his debt to Bruno Simma and Andreas Paulus (p.21), Laursen is clearly a faithful follower of Ian Brownlie’s school of post-Hartian “objective positivism.” As things stand, however, his take on objective positivism offers a significantly cruder product than Brownlie’s own re-appropriation of Hart (Brownlie, 1995: 21-35). The reason for that lies partly in Brownlie’s better acquaintance with Hart’s theory (Hart, 1994) and partly in Laursen’s own inability, despite his constant use of the term, to work out the full logic underlying Hart’s theory of “secondary rules” (for Laursen all secondary rules are rules of recognition), including the actual reasoning behind Hart’s conclusion that international law, because of its decentralized nature, must lack an adequate system of such rules.
According to Laursen, the answer to the question – “how do we know what are the secondary rules of modern international law?” – must be ultimately sought in “the practice of international tribunals” (p.21). Rather surprisingly for a self-declared practitioner of the “traditional positivist approach,” this statement arrives unaccompanied by any explanation, however short, of how exactly such a state of affairs could be fitted with the general positivist theory of international law (which postulates the necessity not only of an explicitly decentralized and state-centric legal process but also of the principles of sovereign equality, lawmaking by consent, and the rejection of the idea of a world government). Nor, which is even more bewildering for a Hartian positivist, is it supplemented by any description of its empirical and sociological origins. Indeed, the only time the sociological dimension of legal theory ever gets mentioned in CILMNC is when Laursen sets out to reprimand Glennon for not being a good legal positivist (p.18), a scholarly affiliation, it must be pointed out, which Glennon has never actually claimed.
All of this raises a number of rather awkward questions, starting with: where exactly does this new tertiary rule – that some nebulous system of international tribunals, with all their institutional and cultural legitimacy problems, lack of staffing, informational asymmetries, gender misbalance, democratic unaccountability, not to mention the extremely obvious limitations of their mandates and discursive capacities, should be able to determine the system of international law’s secondary rules – come from? What is its basis in customary international law? How many of these tribunals’ members are actually aware that the jus ad bellum scholars consider this to be their responsibility? And what about the nation-state governments? Has anyone asked them what they “feel” about this idea? [*268]
CILMNC’s answer to the question of secondary rules, in short, is supplied in the form of an antinomian, aprioristic postulate – here it is, there’s no real reason for it, just take it or leave it – and the problem with such postulates, of course, is that, although they may work well in religion, they are not too well regarded in secular positivism. And so if positivism is the proposed solution to the question of legal knowledge, then the knowledge CILMNC provides of the customary law of jus ad bellum has to be compromised ab initio. If the rule of recognition cannot show its basis in the actual practice, how can anyone consider it reliable?
But the biggest problem of Laursen’s legal theory is not his “misuse” of the Hartian analytical framework. It is, rather, his construction of the basic international law concept of “state practice” and his understanding of just how “international” a normative consensus must be in order to give rise to the specific kind of opinio juris required to create a general custom.
To start with the former, virtually all the examples of the “new” state practice CILMNC cites are either the acts of Western powers, including Russia, or the statements of the various Western-dominated international organizations and their subsidiary bodies. The amount of attention given to the foreign policy patterns practiced by other states and regional groupings is infinitesimal. Indeed, to the extent to which they ever appear in the CILMNC pages, they mostly do so only as the backdrop to, or the theater-stage for, the realization of the Western foreign policy.
Discussing the logic of literary work, Pierre Macherey once observed that, ultimately, it is not so much what the book actually says, as what it tries to exclude from its plane of saying – what it deliberately, that is, tries to silence over – and how it does this that defines the meaning of that which it actually says (Macherey, 2006: 97). The most telling feature of Laursen’s performance on this front, despite his initial promise of “an approach that is more comprehensive than most other contributions” (p.20), is that in a 300-page volume one finds virtually no traces of any engagement, direct or indirect, with any of the recent works by Thomas Franck, David Kennedy, Frédéric Mégret, or, indeed, any other international legal scholars besides Glennon and Bolton, whose interpretations of the post-Kosovo state practice led them to an essentially negative conclusion about the continuing relevance of the Charter regime, but who arrived there with significantly less delight about their findings and self-righteousness about their method.
In a way, that doggedness with which Laursen sticks to the 1920s-style empiricist myth that somehow, if only one looked at it long enough, that mysterious entity called the “state practice” would inevitably begin to speak and will eventually tell what exactly the objective contents of customary international law are, is rather admirable. But in a way it is also quite perplexing. One would have thought, nearly two decades after Koskenniemi’s work on the structure of the international legal discourse (Koskenniemi, 1989), it should have become at least deeply [*269] unpopular, if not intellectually impossible, to make these kinds of arguments.
But, then again, it is not actually impossible to see why Laursen relies on this trope so much. For it does, in fact, perform a very helpful ideological part, by giving CILMNC a perfect instrument with which to repel any criticism of its conclusions. For, indeed, if state practice can speak for itself and CILMNC has covered all of it that there was to be found, and the rules of recognition have been authorized by the international tribunals, how can its conclusions ever be wrong?
But, of course, they can. Because, first of all, “historical situations do not have built into them intrinsic meanings” and how a given historical situation ends up being interpreted is ultimately a question of the historian’s ability and preferences in questions of “emplotment” (White, 1978: 84-7). And, secondly – and far more relevantly – because CILMNC does not, in fact, cover the whole field of the available state practice and even that bit of it which it does cover, it covers with a rather pronounced bias.
Consider, for instance, the fact that whenever a representative of a Western/European government is reported saying anything in CILMNC – even when the blandness of their sophistry (“terrorism is not the way to a negotiated settlement, it is an obstacle to it”) is so blunt, it could easily put half of all Dworkineans out of the best-fit-interpretation game forever – he or she is simply described as “making a statement” (pp.3, 134, 212), a “remark” (p.225), or some other such potentially custom-forming act. By contrast, when a ministerial summit of the members of the Non-Aligned Movement or the Organization of Islamic Conference issues an official declaration on the subject of international terrorism, it is described as “a statement [that] reveals little” (p.130).
When the acts of anti-Western terrorism are elevated to the level of an armed attack (previously the exclusive domain of state action), one is presented with an example of how the international community has learned to interpret the traditional categories of jus ad bellum dynamically (p.280). When the Third-World countries start to invoke the right of self-determination in their struggle against European colonialism, one is presented with an example of a regrettable abuse of an “elusive concept” (p.125).
When a Western law professor is quoted saying that, while “all terrorism is unlawful,” the 9/11 attacks have been more unlawful than any other terrorist attacks in modern history because they were aimed at nothing less than “destroying the social and economic structures and values of a system of world public order, along with [all of] international law that sustains it” (p.137), he is simply described as an academic making a “note.” When a Malaysian prime-minister is quoted discussing the inconsistencies in the use of the label “terrorism,” he is described as a person who otherwise “does not mince his words” (p.131). [*270]
THE ASSUMPTIONS AND BLIND SPOTS OF THE JUS AD BELLUM SCHOLARSHIP: CILMNC AS A TYPICAL MONUMENT OF A POLITICAL CULTURE
What exactly does it mean for a continental European international lawyer to call on his readers to oppose the attempts of the Anglo-American scholars to present a new conception of international law on the grounds that the project assumes that the legal regime established by the UN Charter has failed? Is it not true (and does the fact of a decades-long debate among the continental European international lawyers about the UN and its shortcomings itself not confirm this idea) that that regime has not actually been so great after all? That the ultimate reason why the UN failed to intervene in Bosnia and Rwanda has at least as much to do with the fundamental design flaws in its institutional structure as it does with that proverbial “human factor” to which the West and the international civil servants are content to ascribe every civilian massacre from Srebrenica to Sabra and Chatila? And that if it is actually so, then it probably makes all the sense in the world, given the scale of the humanitarian catastrophes involved, to consider that regime profoundly dysfunctional?
The aggressive Right definitely is on the rise in the field of the jus ad bellum discourse. That much is certain. What it wants to achieve, in one way or another, is to relegitimize the idea of Western colonialism. That much is certain too. But there is nothing inherently Rightist or even remotely rightwing about criticizing the existing status quo in the field of jus ad bellum discourse, especially when this discourse is built on such a widespread denial of the historical realities outside its plane.
If Laursen feels uncomfortable with recent developments in jus ad bellum scholarship in the US and Britain because he thinks they may help to legitimize the idea of Anglo-American imperialism, why not say this openly? He would not be alone if he did that. But then if he did, he would also be expected to articulate, however briefly, what exactly it is about Anglo-American imperialism that he finds so abhorrent, and that is where it seems the blind spots of the contemporary “continental-European” international law discourse have the better of him.
Is it the Anglo-American part of the new jus ad bellum imperialist project that disturbs Andreas Laursen more, or the imperialist part? If it is the latter, how exactly does he then propose to reconcile the idea of an anti-imperialist impulse with the idea of throwing all one’s ideological weight on the side of a legal regime established six decades ago on the self-evident understanding that vetoing rights at the Security Council should belong, inter alia, to two of the biggest European empires of the day?
The point I am trying to make here is not that Laursen’s project is somehow politically corrupt or methodologically misguided, but, rather, that the most important problem of the newly blossoming genre of scholarly writing to which CILMNC belongs is that it rests [*271] on a set of essentially unsupportable ideological assumptions.
Fine, let us imagine that Glennon and Co. really do want to wipe out the existing jus ad bellum regime and replace it with a new one. Let us also imagine that this new regime is going to be far more liberal about allowing aggression, and that because of this it is not going to be in line with the established traditions of international law. Let us, furthermore, imagine that, as a result of all this, the project of the international rule of law will suffer a very considerable setback. So what? What exactly is wrong with that?
Pause for a moment and think about this carefully.
What is so good about the existing variation on the international rule of law theme achieved in the field of jus ad bellum that anyone in their right mind should feel immediately upset when told of its destabilization? Or, rather, to look at it from a slightly more revealing angle, who do you think should necessarily feel upset in case such destabilization does happen? Who has the highest stakes in retaining the existing status quo? If you think the answer is, “humanity at large,” think again.
Whatever the established dogma of modern internationalism may say about this, there simply does not exist any necessary connection between juridifying the field of international politics surrounding the transboundary use of force, including the so-called global war on terror, and making that politics more ethically appealing, or, for that matter, more humanitarian or more accountable. One can easily spend a whole lifetime witnessing the rise of the former without ever observing any changes in the latter, and vice versa. Any claim that in this (or any other) area of international relations there must exist some kind of a hidden structural interdependency linking the process of juridification to ethically progressive development is completely spurious.
“More international law” simply does not mean “a more ethical global political climate.” Any statement declaring otherwise is not a reasoned argument, but a typical example of juristocratic bullying. More than that, it is also an example of a very biased political project, for when and if such bullying arguments succeed, as history shows, the practical results almost always turn out to benefit only a very narrow sector of the international law profession, namely that part of its current ideological elite which through a lucky confluence of historical opportunities has managed to come out on top of the power/knowledge conjunction by turning itself into the priestly caste of the new rule-of-law religion.
As Pierre Schlag has once pointed out (Schlag, 1998: 52-3), the ethical superiority of juridifying any given field of politics as a meta-political strategy can become a logically plausible proposition only if one has already decided that the whole political universe with which one is dealing on the given occasion is inherently susceptible to being recast in formal juridical terms – i.e. only if one has already decided that [*272] juridification can and must happen. If one does not make that assumption – if, in other words, one decides that the world of politics cannot be meaningfully reduced to a one-dimensional appropriation by the discourse of law and that juridification cannot prove its ethical value by simply taking it for granted – then any scholarly project which tries to present it as self-evident that “more juridification” necessarily means “more progress” simply begins to look spurious. Put plainly, unless one is ready to accept the rather embarrassing proposition that “the way of the law” must be good because the “law” itself has said so, “more law” simply cannot equal “better life” or “more humanitarianism” or “a more progressive ethical climate.”
Against such a background, it seems difficult to conclude that the rise of the new “continental-European” writing about jus ad bellum topics of which CILMNC is a representative illustration should be considered a cause for much celebration. Its apparent ideological target may be the most reactionary project of all, but its own ideological character can hardly, for all that, be called particularly progressive.
Brownlie, Ian. 1995. “International Law at the Fiftieth Anniversary of the United Nations” 255 RECUEIL DES COURS 9-228.
Cover, Robert M. 1986. “Violence and the Word.” 95 YALE LAW JOURNAL 1601-1629.
Hart, H. L. A. 1994. THE CONCEPT OF LAW (2nd ed). New York: Oxford University Press.
Kennedy, David. 1987. INTERNATIONAL LEGAL STRUCTURES. Baden Baden: Nomos Verlagsgesellschaft.
Koskenniemi, Martti. 1989. FROM APOLOGY TO UTOPIA. Cambridge: Cambridge University Press.
Macherey, Pierre. 2006. A THEORY OF LITERARY PRODUCTION. New York: Routledge.
Schlag, Pierre. 1998. THE ENCHANTMENT OF REASON. Durham: Duke University Press.
White, Hayden. 1978. THE TROPICS OF DISCOURSE. Baltimore: Johns Hopkins University Press.
© Copyright 2007 by the author, Akbar Rasulov.