EJIL: Talk!

This is the third episode of a series of posts on “The Rise and Fall of Eunomia”. Episodes 1  and 2 of this series can be found at here and here. The series was first posted in late 2010 and is being re-run.

The Sky is the Limit

In the aftermath of this landmark decision, Eunomian lawyers, flush with victory, vouched that more ambitious cases would be in the making. Eunomia had begun proceedings against the state of South Gacaca. South Gacaca had just emerged from a decade of turmoil during which a brutal regime of Apartheid was set up. Following a UN supervised transition, the first constituent assembly of South Gacaca adopted a complex scheme to restore ‘peace, justice and the rule of law.’ The scheme involved a Truth and Reconciliation Commission. By all accounts, it had lead to painful confessions, and had clarified the fate of thousands of disappeared persons. However, some of those who had committed crimes subsequently suggested that they had merely ‘gone along’ with the Commission to avoid what they considered to be a ‘foregone conclusion’ if they had gone to trial.

Eunomia had been contacted by a group of victims of the South Gacacan regime who felt they were being shortchanged by the whole scheme, and who had launched a coalition under the slogan, ‘We don’t want truth, we want justice!’ Armed with that popular mandate, Eunomia argued before the ICJ that in proclaiming an amnesty, the South Gacacan state sought to extinguish an interest in prosecutions that was not entirely its to extinguish. In his blog, the head of Eunomia’s Ministry for Global Transitional Justice was quoted as saying

if crimes against humanity are really crimes against humanity, then we must understand that it is the conscience of mankind that is shocked by them. We sympathize with some of the reasons that have been advanced by South Gacaca to push ahead with the Truth and Reconciliation process, but we also believe that international law mandates some prosecutions of at least those principally responsible for the atrocities committed in the last decade. We would not be faithful to our ideals if we did not press this case. Eunomia will stand by the side of the victims of South Gacaca.

An even more ambitious case for Eunomia’s legal team was in the works that would have involved Eunomia suing all of the world’s major polluters at once for their contribution to global warming, and what was hailed as an erga omnes obligation not to contribute to the destruction of all living ecosystems. Eunomian lawyers knew this was a long shot but they felt that if worse came to worse it would at least attract attention to the urgency of the problem. A London barrister and professor of international environmental law had been hired to work on the case, and was said to be confident that the ICJ would recognize an actio popularis to defend against irreversible global damage to the environment. After the disappearance of the Seychelles two years earlier, some judges were said to be eager to adopt a landmark decision revolutionizing the old Trail-Smelter precedent in an age of “Global Commons” (although the less generously inclined suggested that the judges were mostly worried about the Peace Palace being flooded by rising waters threatening the Dutch coast). A case challenging ‘global economic inequality’ was also in the making. Eunomia was said to be preparing to invoke a range of treaties on economic cooperation and soft law on the right to development in support of this ‘mega-case.’ The argument was that many states that would have stood to benefit from litigating under-development failed to do so out of fear that they would be ostracized by the donor community. Read the rest of this entry…

This is the second part of a series of posts on “The Rise and Fall of Eunomia”. Episode 1 of this series can be found at here. The series was first posted in late 2010.

Eunomia’s internationalism takes shape

Initially, the real reasons for creating the State of Eunomia had been somewhat a mystery. After all, many of the social experiments that Eunomians sought to engage in were the sort that could have been engaged in in other countries, without the huge cost of doing so literally in the middle of nowhere. The style section of an international magazine described the whole experiment as ‘radical-libertarian-humanitarian-chic.’ As it turned out, however, the real plan laid elsewhere and it only began to emerge once Eunomia’s statehood had been officially recognized. There were a few telltale signs, including the proclamation that Eunomia would be an entirely monist state, and its immediate adoption of all eight major international human rights treaties as having supra-constitutional status. Some legislators went as far as to suggest that little ordinary legislation would not be necessary: the WTO rules would provide Eunomia with the framework for a market economy; the ILO treaties its labor legislation; the WHO rules its health standards, etc. Indeed, the direction in which Eunomia was headed might have been apparent to any one who carefully read the rapidly crafted Eunomian constitution, article 17 of which proclaimed:

Eunomia is a pacifist state dedicated to the pursuit of international justice. It is the obligation of the Eunomian state to strive for such international justice through every means possible, including all recourses available under international law.

Although the first sentence sounded innocuous enough, the second one was the deal clincher. The debates leading to the adoption of the Eunomian constitution included a rag tag group of veterans of frustrated globalist causes, founding members of the International federalist society, veterans of the New International Economic Order, and various Hague appeals for peace fellow travelers. All had consistently deplored the absence of significant progress towards centralized international authority and a ‘world public order of human dignity.’ A lifetime of experience trying to influence states had led them to the dispiriting conclusion that the ways of the inter-state world were almost impossible to reform from without. Whilst academic international lawyers focused on a few landmark international judicial decisions as symbols of progress, these disenchanted apostles of civil society were more prone to see the huge black holes of the international legal order: those countless cases that were never litigated because states themselves were often complicit in keeping the international rule of law at a rudimentary stage.

A former negotiator at Montego Bay, once considered a good contender for the first Secretary General of the International Seabed Authority, made an impassioned plea before the Eunomian parliament denouncing the cupidity and short-sightedness of sovereigns. The argument was that if centralized global institutions could not be expected to take over any time soon, what was needed was for a few enlightened states – perhaps only one state – to take the lead and stand for the global community’s interest in international public order. That glorious avant garde would drag the international system out of its collective action problem kicking and screaming if it had to. And if one state was to take that responsibility, who better than Eunomia? After all, Eunomia was well taken care of, financed for decades to come thanks to a huge endowment, and could count on some of the best activist minds the world had to offer. It did not even have a national interest of its own that might stand in the way of its idealism; or rather, to the extent that it had one, it was in fact one with international law; Eunomia would be dédoublement fonctionnel without the dédoublement; world attorney without the international politics; its own interest and that of the international community in unison.

The crusade is launched

After the Eunomian constitution was ratified, the new ‘Ministry of international justice and foreign affairs’ immediately announced a catalogue of measures. First, Eunomia was to become a member of all major international organizations. Read the rest of this entry…

Editor’s Note: This series was first posted on this blog at the end of 2010. We are running it again like one of those old favourites that gets rerun on TV around Christmas time.

Frédéric Mégret is an Associate Professor of Law, the Canada Research Chair on the Law of Human Rights and Legal Pluralism, and the Director of the McGill Clinic for the Sierra Leone Special Court, McGill University. Alexandra Harrington is currently a Doctor of Civil Law candidate at  McGill University

It had been a masterfully planned operation from start to finish. When Grigory Savros heard the news that, following a massive volcanic eruption in the South Pacific, a new island, roughly six by eight miles, had emerged, he at first paid little attention. The incident had of course generated considerable popular interest and, as the only known island of its kind in several millennia, was the buzz of geologists. But the volcanic fumes arose hundreds of miles away from the nearest flight path, and the island was first reported as barely habitable. Savros had other things to think about. One of the world’s richest men, he had made his fortune betting against the financial stability of emerging economies through complex derivative products that only a few insiders – if any – could fathom. He had since reinvented himself as, to use the Times’ cover’s expression, ‘The World’s Biggest Philanthropist,’ one involved in everything from art to human rights, fighting global diseases to reducing global warming. Besides, he was already the proud owner of no less than two islands (one in the Caribbean, and one in the Mediterranean) in which he hardly ever spent any time.

But one detail had caught Savros’ attention and vaguely stirred up recollections from his international law days, before he became a wealthy investor, when he was still what he sometimes described in interviews as an ‘idealistic law student’ (he had quickly abandoned his initial idea of working in international law, a discipline he had found to be largely irrelevant to the ways of the world). The island was beyond the territorial waters or even the exclusive economic zone of any state. As such, it was no less than the first bit of prime terra nullius real estate to emerge in at least 200 years (with the exception of ‘fake’ terra nullius of colonization). Of course, this fact had not escaped several foreign ministries, but of the few states with any presence in the region, most concluded that it would be far too expensive to maintain a base on the island, and quickly gave up the notion. The land and the surrounding waters were devoid of any particular resource, at least the sort that could be exploited profitably. These were hard financial times globally, and no state had the appetite for an extra piece of rock in the mid-Pacific, with no economic or geopolitical value. One landlocked state in Central Asia expressed some interest in acquiring the island so that its Great Leader could claim to have ‘brought the sea’ to his country, but the plan quickly foundered. There was some vague talk at the UN General Assembly of ‘internationalizing’ the rock (which still had no name), but no one really knew what for, and the matter was deferred to a committee. A window of opportunity had been opened, but no one could quite suspect what use it would be put to.

Genesis and settlement

With no expressions of interest from states in the region, Savros summoned his inner circle of advisors to the privacy of his mountain getaway. What emerged from this evening is still a matter of speculation and what we know of it has been reconstructed from scattered archives and memoires of those who were in attendance. At first, Savros had apparently been characteristically enigmatic about the reasons for bringing them together at short notice. But after dinner and over glasses of (very good) cognac, he had flipped a switch in his parlor, turning on a spectacular holographic display of a paradisiacal island, rich with fields, roads and villages hovering just above the guests, and had made the following almost comically solemn announcement: ‘Ladies, and gentlemen, welcome to the soon-to-be state of Eunomia, the first state built by and for civil society, a state dedicated to the highest values of justice, solidarity and freedom!’ The guests had been flabbergasted and, were it not for Savros’s reputation for fits of anger, might have shared a piece of their mind that this all looked rather megalomaniac. Savros, however, had obviously given the idea considerable thought and over a night of passionate discussions had little by little convinced one after the other that this was not only a project worth trying, it could very well be the defining project of the age.

During the next weeks the decision was made to launch a secret operation, codenamed ‘Tiger Lily,’ that would begin to turn the project into reality. It was to involve, at first, six cargo ships (including two mega-container carriers, one supertanker, two large ferries and one commanding ship). The plan was for these ships to set sail from several points around the globe with shipping orders indicating routine trading routes. Seven days later, they would meet at a secret location in the mid-Pacific. At 0200 hours, the passengers would disembark and bring ashore the contents of the container ships: generators, desalination equipment, cement, various construction vehicles, and much more. A leading conservationist had advised on how to engineer a rapidly expanding ecosystem through an assortment of bees and bugs. Enough material was brought on that first trip not only to construct a small self-sufficient village, but also to lay the seeds for greater things to come: the expansion of the village into a city; the transformation of that barren land into a fully sustainable, eco-friendly, autonomous site of life. Read the rest of this entry…