by Ruti Teitel. Oxford: Oxford University Press, 2011. 320pp. Hardcover $35.00. ISBN 978-0195370911. Paper $24.95. ISBN 978-0199975464.
Joanna K. Rozpedowski, Department of Government & International Affairs, University of South Florida & Fulbright Scholar, University of Liverpool School of Law
In keeping with its suggestive title, Ruti Teitel’s HUMANITY’S LAW (2011) supplies a timely and carefully crafted analysis and nuanced expose of the pivotal shifts in the normative foundations underpinning contemporary discourse and practice of international law. It is Teitel’s contention that at “a moment of great uncertainty and flux in global affairs” (p. 216), the post-Cold War reality, confronted with new anxieties over globalization and new kinds of conflicts and diversity of actors, gives rise to new hopes for “multilateral institutions inspired by universal law” and a significant expansion of individual rights and responsibilities on a transnational basis.
The substantive nine-chapter volume offers a comprehensive account of two of the most fundamental questions of contemporary legal-political discourse: Who is the current subject proper in foreign affairs today? And, What exactly might be the role of actors beyond the state? (p.x). In furnishing her answers, Teitel develops an ambitious and compelling thesis, that of humanity’s law, which makes evident the rising importance of human-centered, as opposed to traditionally state-centered, notions of law and adjudication. In so doing, Teitel makes an important contribution towards clarifying the status of human beings within the broader and historically impersonal regime of international law, which has been understood as a framework of rules primarily concerned with the rights, duties, and interests of States.
The emergence of humanitarian sensibility, which Teitel adroitly elucidates, seeks to put individual human subjects at the heart of any serious political and legal endeavor and theoretical discourse and sets a high premium on a minimum “human threshold” of decent behavior below which “conduct becomes inhuman” (p.171). The normative principles of this greatly expanded juridico-philosophical landscape, she contends, had already been gradually and successfully inscribed into three leading regimes of law: (i) the law of war, (ii) international human rights, and (iii) international criminal justice. All three, Teitel notes, are grounded in the protection of humanity at the domestic, regional and international levels, and as such are well equipped to supply a viable answer to the leading conundrum of our times: What do we owe each other?
The book’s 225 well written and accessible pages aim to diagnose and map the rise of humanity law and trace its translation into the language of policymaking, conflict resolution, human and state security, and practice of international relations. In the context of contemporary political disequilibria frustrated by recurring acts of terrorism, genocide, and highly motivated violence, [*267] Teitel, an attentive scholar of comparative law, foresees an active and expanded role for hybrid international and regional judicial institutions in broadening the scope of concern and protection of humanity’s rights, even if such protections are to come at the expense of state sovereignty itself or call for individual criminal accountability of the heads of state in the face of senseless evil. The humanity’s law framework proposed and unwaveringly defended by Teitel is to serve as a “corrective to a political system that too often leaves individuals out” of the discourse of state power and transpolitical moralism, of the rule of law and negotiations around the conditions of peace and stability which frequently resign humanity to vicarious “acts of state” and a delinquent belief in sovereign inviolability and immunity (p.72).
Laced with abundant case law and authoritative citations of decisions and advisory opinions of international courts and tribunals, the book’s chapters promise to (i) elucidate the implications of humanity centered global turn (Chapter 1), (ii) provide a rich historical backdrop for past struggles between individuals and their states concerning the relationship between private and public goods, negative and positive rights, and fundamental civil, political and economic rights-based claims (Chapter 2), in order to make a compelling case for (iii) the emerging transnational legal order (Chapter 3), which extends the scope of individual responsibility, challenges traditional limits of legal accountability, casts into doubt unstable binaries and categories between citizens and aliens, combatants and civilians under international law regime, and argues for “legalization as a tool for shaping state behavior” that is in keeping with secular and humanist “just war” tradition she advocates (Chapter 4), where (iv) international criminal justice and supranational adjudicatory regimes play a “conspicuous role in foreign affairs” (p.75) by assisting in deterrence, reconciliation and dispensation of criminal justice (p.81). This anthropocentric orientation of law aims to (v) “globalize the regulation of violence” (p.105) and provide a judicial mechanism to counterbalance a “security system that is increasingly ill adapted” (p.120) to escalating transnational threats such as poverty, disease, environmental degradation, proliferation of nuclear, radiological, chemical and biological weapons, transnational organized crime, terrorism, and inter- and intra-state conflict (Chapter 5). Under the auspices of the humanity’s law regime, (vi) states have the positive obligation to protect individuals from harm, and the international community has a responsibility to intervene when minimum standards of protection are not met or otherwise abandoned (Chapter 6). Humanity’s law is thus a “language of accountability” (p.162) which deems (vii) human security as a “prerequisite for social cooperation, citizen and worker participation and good governance” (p.156), which offers an “interpretative guidance” in decision making via mobilization of the rules of international humanitarian law that are of a non-derogatory, erga omnes character (Chapter 7). With globalization’s spectacular undoing of relevant affiliations and loyalties, (viii) humanity’s law has a potential to offer a more robust protection of rights within and across national borders (Chapter 8) and compel states to engage in (ix) a balancing act of state interests and [*268] human security (Chapter 9) as well as extend recognition and protection of the rights to life, humane treatment and judicial protection within and across borders.
Expectation of a disconnect between a realist, interest-driven modus operandi of state power, and the new ethical-legal normativity, leads Teitel to enhance her theoretical arsenal in favor of humanity’s law framework with abundant illustrations of the constructive work already underway (be it with respect to the Balkans, Kosovo, or Darfur) in international courts and tribunals, where “vindication of humanity rights” (p.198) and recognition, protection and preservation of individuals, reconceptualizes the very relationship between states and their citizens. Hers is a constructivist framework, which sees humanity’s law as the key ingredient permeating any substantive discussion and exercise of law, ethics, and politics, lending credence to such concepts as universal jurisdiction, humanitarian intervention, and individual civil and criminal accountability for the use, misuse, and abuse of power.
At the supranational institutional level, the human, as the rights bearing center of moral concern, mandates international community’s commitment to the protection of interests and peoples by requiring that “just wars be waged justly” (p. 218) and its consequences be subject to judicial supervision under mutually-negotiated international statutes and treaties, with the Rome Statute being a paradigmatic example. The notable changes in legal personality, subjectivization and judicialization to which Teitel alludes, do not go unchallenged by state entities loyally guarding their adherence to the principle of consent as the “exclusive and indispensible source of legitimacy” (p.173) in international law. The empowerment of non-state actors and imposition of limits and responsibilities on states under humanity’s law constitutes, therefore, an invariable source of tensions between the lofty hopes of multilateral adjudication and previous era’s greatly overwhelmed processes and institutions. Teitel contends that by globalizing the “regulation of violence” (p.105) novel discursive lenses, legal tools and judicial mechanisms, which reach beyond the confines of the state, can be invoked and mobilized in order to address the root causes of conflict and resolve problems according to a “fixed scheme above the claims of the parties” (p.123), thereby extending much needed protections to those who are found to be most vulnerable in its throes.
In laying out her arguments for humanity’s law, Teitel avidly shies away from subscribing to a cosmopolitan tradition proffered by the likes of Seyla Benhabib, Jurgen Habermas, David Held or Martha Nussbaum, to name a few, who hold humanity-right based claims similarly essential to a meaningful construction of transnational and international law regime. It is Teitel’s view that contemporary cosmopolitanism cannot but “fail to do justice to the complexity” of entanglements that bind individual and group humanity rights claims against the state and statehood (p.167). Thus, cosmopolitanism confines its predilections to a uniform and essentialized understanding of humanity, one which cannot account for the sheer [*269] diversity of actors and complexity of their claims. It is improbable, however, that committed cosmopolitans would see Teitel’s important contribution to the debate in the same light. After all, the book constitutes a practical extension of the cosmopolitan agenda and need not be seen in opposition to it. Rather than flattening out the cosmopolitan concern and dismissing it as inessential to her humanity’s law framework, Teitel would do well in engaging more deeply with some of the core principles and justifications of cosmopolitanism and its many variants, seeking to bridge rather than reinforce academic differences and disciplinary barriers. After all, both cosmopolitanism and humanity’s law embrace and advocate a rethinking of the entrenched notion of state sovereignty as it has historically developed in international relations; both also place the human at the center of the moral universe and treat the individual as the object and subject proper of law and politics; finally, both seek to protect fundamental human interests in a world increasingly defined by tensions, transitions, and crises that lie beyond the control of any one statist regime or far exceed domestic legal mandate and existing remedies. Surely much ground for consensus exists.
Ruti Teitel’s HUMANITY’S LAW, as an erudite work of serious scholarship, provides a theoretical corollary to cosmopolitanism as a philosophical ideal and a political project that would appeal to a wide array of scholars and practitioners of international law pondering global accountability frameworks and governance beyond the confines of the statist paradigm. The book, therefore, offers an unprecedented opportunity to complement and enhance rather than find deficient and problematic a common vernacular in favor of a thoroughly pluralistic and humanity’s-law-oriented outlook by arguing for the development and deployment of a robust and sophisticated set of tools, mechanisms, and institutions that are to stand their ground in defense of human rights, irrespective of the subjects’ national affiliations or situational contingencies of birth and ethno-national belonging. By recognizing a broader set of values and interests, humanity’s law is an essential voice of global conscience in a world fragmented by conflict and torn between appeals to enlightened self-interest and spurs of selfless humanitarian compassion, and plays a decisively transformative role in furthering the humanity-based scheme of jurisdiction, which for the first time in the long and astute history of jurisprudence, follows the person.
Copyright 2014 by the Author, Joanna K. Rozpedowski