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.
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. A bid was even made to push the young Republic’s application to the Security Council as a non-permanent member. Second, it would recognize the compulsory jurisdiction of the ICJ and the applicability of every inter-state complaint mechanism in existence. This would complement a wide process of treaty ratification and commitment to the highest goals of international law.
At the diplomatic level, the aim of the emerging Eunomian diplomatic corps – which comprised many former activists and journalists – was to seek out any hint of dreaded realpolitik and expose it immediately to the world media. Eunomia would only abide by the highest and loftiest principles, and its diplomats would ensure that the rest of the world was held to the same standards, even if only in the court of public opinion. In order to further these goals, Eunomian diplomats engaged in ordinary bilateral and multilateral negotiations, but remained ready to use every form of information made available to them, including confidential sources, to expose states’ ‘sinister little calculations.’ During a WTO trade round, for example, they exposed major industrial powers as having plotted to fix agricultural subsidies, creating a worldwide scandal. At the Human Rights Council, Eunomian delegates had a field day denouncing the behavior of human rights violators and vocally sponsoring strongly worded declarations. After all, their human rights record was impeccable (Eunomia even handed in some of its human rights treaty body reports in advance).
However, the impact of Eunomia’s ‘virtuous’ foreign policy was not very vividly felt: it was after all only one state party in organizations that typically had close to 200. From the start, the Eunomian Foreign Ministry had thus sought more effective ways to pursue its aims, especially in situations where states could neither be cajoled nor embarrassed into compliance, ways that would radically and definitively alter the prospects of international justice. As one Eunomian legal advisor put it, speaking under conditions of anonymity, “our goal is to bring the tactics of guerilla to the international juridical world. For too long, civil society has been excluded from the real prize: being able to participate in international legal relations on an equal footing with states. Not only are we going to take up these causes that previously would not be heard, but we will spare no effort in raising every conceivable claim in international law, uninhibited by concerns of economy or diplomacy.’ Or, as Savros put it in a speech ‘We will no longer be confined to the peripheries of international law, no longer be a footnote. Today, the people of the world will not be content with advising, cajoling, scolding. The people of the world want to be in charge!’
In the wake of such statements, there were of course scathing editorials the world over. Who was Eunomia to claim to speak in the name of the people of the world? Who was Savros, who, though vaunted for his philanthropy, led a mysterious and shadowy life, to claim that he could put the people in charge? But nothing was going to prevent Eunomia from testing its vision for itself and for the world. And so Eunomia prepared to embark on a historically unprecedented experiment of all-round litigation. Three hundred international lawyers were recruited in the first year alone to feed the Justice and Foreign Ministries’ gargantuan appetite for legal craftsmanship.
The WTO was soon identified as an institution that offered great potential for exploratory ‘international public interest’ litigation. Having few institutionalized trade laws, it was not difficult for Eunomia to harmonize its domestic legal order and quickly become a member of the trade organization. A month after gaining membership, the Eunomian Assembly passed a law banning the import and sale of any products that were not carbon-neutral. This was only the ‘external’ version of a Eunomian law that similarly prohibited the production of any good at home that did not fit such an exacting specification (a similar law prescribed that all foodstuffs should be grown entirely organically). The law was inspired by the belief of Eunomians that global warming had reached a stage where the only way to safeguard the environment and the future of mankind was through a radical break from the past. Eunomia’s case that this was so was made particularly strong by its vulnerability to the rise of oceans as a result of global warming; it was also made possible by Eunomia’s exceptional harnessing of wind, solar and sea wave generated energy that made it one of the first territories in the world to have largely shed its dependence on carbon energy.
As soon as the law went into effect a coalition of states brought a complaint to the WTO Dispute Settlement Body (DSB) claiming violations of GATT and associated treaties – exactly what Eunomian lawyers had anticipated. During the DSB proceedings, Eunomia argued that the law was within Article XX (b) because it was meant to protect the environment for current and future generations, protections which were recognized as important by the WTO itself. In terms of Article XX’s chapeau, Eunomia argued that, since no carbon products were made on Eunomia, there was no issue of like treatment of products. And, since the ban applied to all carbon-positive products, there was no question of inequality in ability to comply like that found in the US-Shrimp case. The DSB Panel Report found that Eunomia had indeed managed to comply with Article XX’s chapeau and the requirements of (b). In explaining its finding, it stated that Eunomia had adopted a law whose sole purpose was the protection of the environment and the future of mankind, and that the law was crafted and implemented in a way that it did not result in discrimination. On appeal, the DSB Appellate Report implicitly lauded Eunomia for implementing the lessons that the DSB had tried to teach in previous complaints; namely that, if Article XX’s chapeau and (b) requirements were met, the DSB would support laws and practices that were geared toward the protection of the environment. The Report was seen as a major victory by environmental groups and environmentally conscious lawmakers around the world.
After this first, ‘historical’ test case, Eunomia’s lawyers sought to try their hands at something even more unorthodox. Inter-state complaints had never once been used in the entire history of the international human rights treaty bodies (and very rarely in the case of international human rights courts). The Eunomian Human Rights Minister denounced the ‘complicity of scoundrels’ that allowed states to systematically underuse the international system’s jurisdictional or quasi-jurisdictional resources for bringing complaints. The decision took some time to be made, but by the time it was taken there seemed to be no holding back the litigating zeal of Eunomia’s army of lawyers. Eunomia carefully selected those states foolhardy enough to both commit serious or systematic human rights violations and to have recognized the right of inter-state complaint before a treaty body. It did so on the basis of reports conscientiously assembled by its network of embassies, many of which worked directly with – when they did not extend diplomatic privileges to – local NGOs and dissidents. As Eunomian legal counsel reasoned time and time again, at least in the case of these human rights treaties, inter-state complaints were clearly envisaged on the basis of a ‘collective guarantee’ so that states being sued – although they might be unpleasantly surprised – could not argue that this involved meddling in their sovereign affairs. The Women’s Condition Ministry initiated a raft of complaints before CEDAW against states that had introduced wide ranging reservations on the basis of religious tradition, arguing that the international community had for too long allowed women to fall hostage to ‘cultural specificity’; a special torture ‘situation room’ was set up to respond to all warnings of torture, allowing the Justice Ministry to be swiftly notified and seek emergency international measures; the Eunomian economy ministry was almost exclusively dedicated to analyzing the performance of other countries’ economies through a raft of complex indicators with a view to assessing which were significantly falling behind the ‘progressive realization of economic and social rights.’ This activism proved one of the most dynamic elements of Eunomia’s strategy and elicited many a significant victory, in a context where the treaty bodies were only too happy to oblige. Even as some states sought to withdraw from the relevant instruments, the supervisory bodies denied them this possibility on the basis of the ‘special character’ of human rights treaties.
Eyes on the ICJ
But while the WTO and human rights treaty bodies victories were significant, they only involved specialized regimes, and in the case of human rights bodies that were not jurisdictional in nature. They were hardly enough to give Eunomians a sense of mission accomplished. In the minds of insiders there was no doubt from the start that if a point was ever to be made that the time for change in the international legal system had come, it would have to be made through the ICJ. The strategy for Eunomia’s plan to revolutionize ICJ adjudication had been crafted by the odd combination of an ambitious young corporate lawyer specializing in aggressive shareholder litigation in Delaware and a reclusive Kantian scholar from Tübingen, known among specialists for his radical arguments in favor of a priori cosmopolitan duties towards the world’s poor. The team under their supervision included several veterans of the World Court Project and the Lawyers’ Committee on Nuclear Policy. The code name for the ‘operation’ was ‘Barcelona-Action’ – or what insiders jokingly called ‘the erga omnes gone nuclear option.’
In short, the feeling at the Justice Ministry was that the old ICJ dictum had grown stale from underuse except through endless academic repetition. Many so-called erga omnes obligations often seemed to be ‘obligations towards the community of states a whole’ only in name, with no particular consequence flowing from their being described as such except perhaps a vague aura of seriousness. Under its plan, Eunomia was on the contrary going to take erga omnes very seriously, acting as if certain obligations were effectively ‘the concern of all States.’ In fact, it was going to take the notion so seriously that it would sue other states for every significant violation of fundamental international legal obligation, regardless of whether Eunomia had been affected directly (which in almost all cases it could not argue it had). Key to this strategy would be drawing a strong link between the idea of erga omnes obligations and that of an actio popularis: what good were erga omnes obligations, the legal team reasoned, if all states could not sue on their behalf?
Eunomian lawyers drew up a list of violations ripe for actio popularis with a view to aggressively pursuing these causes. Special task forces on genocide, slavery, aggression, and even the global commons were created at the Justice Ministry. The first case was meant as a ‘test case’ for the Eunomian legal strategy. Relying on flimsy evidence that Arak was building nuclear weapons, the International Coalition of the Willing (ICW), a loose alliance of democratic states known as much for not going to war against each other as their willingness to use violence against their periphery, had invaded it. One hundred thousand persons were said to have died as a result of the attack and resulting occupation. Once the dictatorial regime of Arak was deposed, it was replaced by a new ‘democratic’ government. This new government, which relied heavily on ICW backing for its continued existence, was quite happy not to press any claims against its new ‘benefactor,’ now welcoming them as ‘liberators’, despite strong opposition from the population which was barely recovering from the attack. Third states, including some who had passionately protested the planned invasion at the Security Council, now stood still and declined to take legal action, apparently hypnotized by the prospect of new lucrative reconstruction contracts.
Eunomia brought the case to the Hague, arguing that it was not for Arak to agree to the consequences of a violation of international public order against itself, and that not even Arak as ‘most interested party’ could consent to a violation of international law that implicated the interests of the entire international community. The argument was that Eunomia’s own interest in aggression not being committed was compromised, along with the international community’s – even though the latter was too hopelessly weak to come up with a resolute position. The dispute was only superficially inter partes, since it involved an issue of pressing concern – nay, of survival – for the international community. Eunomian lawyers passionately argued that ‘when Arak is invaded, it is all of us who are threatened. We are all Arakians, and the aggression of any state threatens to undermine the very authority of the prohibition against aggression, thus endangering us all.’
The ICW and Arak assembled a team of hardened international lawyers who argued that Arak was not ‘retroactively consenting to aggression at all’, but merely expressing its gratefulness to the ICW for ‘liberating it from a ruthless dictatorship’ in pursuit of the ‘international democratic entitlement.’ Privately, one leading commentator on Arakian affairs commented that ‘it is very easy for Eunomia to sue: it is safely tucked away in the middle of the Pacific. In the real world, it is Arakians who will have to live with the consequences of a confrontational attitude towards ICW.’ The ICW states happened to have recognized Eunomia two years earlier, but Arak had not and complained that, although Eunomia might be a state by the ICJ’s criteria, it could not be sued by a state that it failed to recognize.
Several third states also intervened, claiming that they were affected in their interests by the case. Bordan, in particular, a small neighbor state that had much to gain from the stabilization of the region and the booming trade that would result with Arak, argued that in practice adjudication of erga omnes obligations would have to be weighed against the actual interest of other states. Even if there was an obligation erga omnes, basic international comity, as outlined the ICJ’s old Monetary Gold jurisprudence, would require Eunomia to consult with all other interested parties on the appropriateness of litigation.
In a landmark decision, the ICJ first dealt with the arguments as to admissibility. It emphasized that Arak’s failure to recognize Eunomia was hardly conclusive. There were many situations in international law in which states were owed duties by states that failed to recognize them (and vice versa). For example, Israel was entitled not to be the subject of aggression by Arab states that did not recognize it, even as it was not entitled to aggress them despite their not having recognized Israel. But the part of the judgment that was most eagerly expected concerned the possibility that the Court would revisit its long skeptical view of actio popularis. The Court held that ‘whilst the Court indicated in the South West Africa cases that no actio popularis existed at the time, the circumstances of the international legal order have changed to such an extent that it would be inconceivable if such an action were held not to exist today. The public international law of yesterday is, increasingly, replaced by an international public law of the world community.’ Or, as the Court’s President put it even more clearly, ‘the denial of an actio popularis would run directly counter to the idea of obligations erga omnes. Indeed, what would be left of the idea of erga omnes, if it did not afford the minimum conditions required to make such obligations effective? A denial of actio popularis in relation to erga omnes obligations which, by their very nature, are owed to the international community as a whole, would amount to a denial of international justice.’ This part of the decision was viewed by many commentators as restoring a certain balance between the modes of adjudication of the ICJ and what had become over the years an increasingly high profile competitor, the ICC. One article described it as the ‘at least partial alignment of “horizontal” modes of adjudication with those of “vertical” enforcement.’ It was a move that might even reestablish the relevance and even preeminence of the ICJ as the instrument of choice to litigate fundamental matters of international law – something that even some traditional international lawyers warily saluted. Some pointed out that, especially in the still primitive circumstances of the international order and in the absence of a centralized authority that could act as an ‘international attorney,’ having one state take a stand was better than nothing.
Furthermore, the claim that Eunomia should obtain the consent of every other state was vigorously rejected by an emboldened Court. As President Capello-Brandade put it
the requirement of ‘universal consent’ would eviscerate the notion of actio popularis of its content and significance. The secondary interests of third parties in minimizing the potential consequences to themselves of adjudication on an erga omnes obligation, cannot be said to form the very-subject matter of the decision. Even if it did, it can only be in thesestates’ interest for the Court to further determine the content of the erga omnes obligations to which they are party.
In a forceful dissent, the British judge hinted that the ICJ was ‘sawing the tree on which it was sitting,’ and that the decision would change the face of international law altogether. On the merits, the Court found that the United Freedom States had unmistakably violated the sovereignty of Arak by unlawfully invading it. A majority of the Court, even found that this act of aggression was tantamount to a crime of state that deserved exemplary punitive reparations. The Court concluded its decision with a wonderfully prescient quote from Judge Weeramantry:
we have entered an era of international law in which international law subserves not only the interests of individual States, but looks beyond them and their parochial concerns to the greater interests of humanity and planetary welfare. In addressing such problems, which transcend the individual rights and obligations of the litigating States, international law will need to look beyond procedural rules fashioned for purely inter partes litigation.
In retrospect, this was perhaps the high point of Eunomia’s existence, one when defending international law and invoking international justice, doing what was right and what was useful, working for Humanity and working for a particular people, all seemed to converge in one, glorious, fusional legal moment.
End of episode 2. To be continued…