By Ruti Teitel, the Ernst C. Stiefel Professor of Comparative Law at New York Law School and Visiting Professor at London School of Economics. The following an excerpt from her new book, Humanity's Law, reprinted with permission from Oxford University Press, Inc.
We are living in a time of destabilizing political and legal changes. Often, it seems difficult to know whether we are at war or at peace; to determine what sort of conflict is at stake in a given situation; and, relatedly, to decide how best to address the conflict and to protect the persons, peoples, and/or states that it threatens. While both the end of polarized relations and the advent of globalization have their appeal, the renewed engagement has frequently seemed to mean that we see the possibility of intervention, but that hope is too often thwarted. Yet the closer we look, the more one can see that this situation has too frequently been viewed from a twentieth-century, state-centered perspective. Recently, there have been profound changes in the nature of interstate relations and conflict — all of which have pointed in the direction of the paradigm shift toward humanity law and, to some extent, away from interstate international law, that is identified here.
After I finished my first book Transitional Justice, which explored legal and political responses to the transitions characterizing the end of the twentieth century, it became apparent that — despite lurches toward liberal democratic peace — conflict and violence not only were here to stay, but in some regard were ever more conspicuous, at least insofar as they were having a vivid impact on civilians. Indeed, it seemed that it was precisely during fragile transitions — that is, moments of weakness — that states were at their most vulnerable.
Another puzzle that arose was that of the role of law, and why legal mechanisms and solutions seemed to proliferate. How could this development best be explained? It was clear that the lens we were using — which viewed situations from a state-centric perspective — lacked sufficient explanatory power. But why might that be? The law’s role seemed problematic, given the changes we had witnessed in the nature of the violence. It was necessary to ask: To what extent is the law addressing the real sources of conflict? What sort of law should properly be applied to twenty-first-century conflicts? Other changes, too, are under way, leading us to ask: Exactly who is the current subject in foreign affairs today? And, in a concededly globalizing politics, what exactly might be the role of actors beyond the state? Large numbers of civilians were being affected by conflict, and accordingly, it was vital to examine the role of a human-centered (not state-centered) politics and law in the search for legitimacy. Compounded vulnerabilities speak to other identities, which in turn illuminated the extraordinary rise in ethnic conflict.
This has created the context for a transformation in the relationship of law to violence in global politics. The normative foundations of the international legal order have shifted from an emphasis on state security — that is, security as defined by borders, statehood, territory, and so on — to focus on human security: the security of persons and peoples. In an unstable and insecure world, the law of humanity — a framework that spans the law of war, international human rights law, and international criminal justice — reshapes the discourse of international relations.
The legal responses to the “global war on terror” (i.e., the counterterror campaign) raise the question of the interpretation of humanity law; one example is the interpretive work that is currently done by Geneva Conventions, Common Article 3. Consider once again the decision in Hamdan v. United States, in which the U.S. Supreme Court sought to avoid the potential morass of textual or source-based interpretation by simply assuming that the Geneva language meant that jurisdiction existed over the terror-related conflict, and therefore holding that Geneva Common Article 3 applied. This decision made possible a first line of protection of humanity rights. Indeed, the invocation of humanity law here helped to illuminate one way to avoid an essentialized view of the apparent conflict between legal orders that was before the Court, regarding whether the law of war was to apply — and, instead, to reconcile that apparent conflict via an interpretation that was in keeping with humanity law values.
Another body of interpretation that is relevant to humanity law, is the International Court of Justice (ICJ) case law surrounding the application of the Vienna Convention on Consular Relations, in situations where a suspect who is a foreign national faces charges for an offense that may carry the death penalty. In the last decade, domestic and international courts have become enmeshed in issues concerning life and death — issues that are situated between the procedural and the normative; between politics and doctrine; between the international and the domestic; and between the individual and the state. From the perspective of the state, the cases appear to raise the question of what the ICJ’s effects are, but they also raise a broader question: Just how is it that international law judgments regarding consular rights get enforced in U.S. courts?
In the U.S. Supreme Court case Medellin v. Dretke, a Mexican national sentenced to death in US state courts claimed that his consular rights had been denied. The Court addressed the question whether the Vienna Convention on Consular Relations gave rise to immediate duties and remedies that could be directly invoked by individuals. Put another way, the Court addressed the question whether the Convention conferred justiciable rights. Yet another issue raised was the relationship of ICJ interpretation to domestic court interpretation of the Vienna Convention on Consular Relations. Here, one might conceive of the challenge as that of horizontal dialogue between domestic and international courts and tribunals, wherever humanity-based normativity is at stake. This could be understood against the context of the International Law Commission’s Articles on State Responsibility, which are predicated on state responsibility being engaged by actions and omissions regardless of the “branch” of government at issue, and including the judicial organs. In the cases under discussion, a majority of the U.S. Supreme Court asserts that the reliance on other judicial interpretations is clearly required—particularly, wherever humanity rights (that is, the norms concerning the right to life and related preservation rights for persons and peoples) are at stake. As the majority in Sosa declared, in asserting that it retained the authority to interpret evolving violations of the law of nations, “it would take some explaining to say now that federal courts must avert their gaze entirely from any international norm intended to protect individuals.”
As Justice Ruth Bader Ginsburg observed, the U.S. Supreme Court had always enforced those ICJ judgments relating to individual rights. (This raises the question whether the enforcement or the interpretation of international law is at issue in a given case). Once again, this points to the way one might see that human-centered normativity is entangled in the relevant jurisdictional questions. Nevertheless, in this case, the Court ultimately was closely split but decided against the notion of self-execution of American Convention on Human Rights Article 36(1), despite the ICJ’s contrary holding. That conclusion, notably, goes toward the general sense of the status of humanity rights as emergent, but not yet consolidated. In Medellin v. Texas, the U.S. Supreme Court distinguished between treaties involving directly applicable individual rights (as opposed to states’ rights) by seeking to delineate those norms that are amenable directly to domestic judicial remedies.
As the number of obligations imposed by international law is concededly growing, we see that it is in the area where international law generates more than one duty that interpretation is likely to be in greater demand and will likely play a most important role. Indeed, at the heart of the decision in Medellin was the question of what law applied to the case—with the decision often blurring the procedural/jurisdictional issues with the substantive merits. Here, again, as in the ATCA litigation, the Court embraced an “interpretive approach,” looking for “clarity” as to where international law ought be enforced.
Humanity law generates and transforms the meaning of the enterprise, redefining the weight and relevance of the law of the human community and, in this way, helping to shape an alternative rule of law.