Favourite Readings 2020 – A Tapestry of Five Books: Solidarity and Human Rights in International Law

Daron Acemoglu and James Robinson, The Narrow Corridor: States, Societies, and the Fate of Liberty (Penguin Random House, 2019)

Johan von Bernstorff and Philipp Dann (eds.), The Battle for International Law (OUP, 2019)

Koskenniemi, W. Rech, and M. Jimenez Fonseca (eds.), International Law and Empire (OUP, 2017)

Paolo Amorosa, Rewriting the History of the Law of Nations (OUP, 2019)

Luis Eslava, Michael Fakhri, and Vasuki Nesiah (eds.), Bandung, Global History, and International Law (CUP, 2017)

As in previous years, EJIL’s Review section, has invited EJIL board members and (associate) editors to offer short reflections on their favourite books of the year 200. No strict rules apply — the posts are meant to introduce books that left an impression, irrespective of their genre. Today we have selections from Diane Desierto. You can read all the posts in this series here. 

Favourite Reading 1: Acemoglu and Robinson, The Narrow Corridor: States, Societies, and the Fate of Liberty

Until I reread this book during the global lockdowns of 2020, I thought there was nothing at all novel about the thesis of American economists Daron Acemoglu and James Robinson in The Narrow Corridor: States, Societies, and the Fate of Liberty). Known for their previous opus about the central importance of designing the right mix of governmental and non-governmental political and economic institutions (Why Nations Fail: The Origins of Power, Prosperity, and Poverty, Penguin Random House, 2012), Acemoglu and Robinson argue this time around that liberty only flourishes in a ‘narrow corridor’ between the inevitable conflicts of elite-driven States and social movements and mobilization, where neither side can be stronger than the other. States that are too strong will tend to move towards authoritarianism and despotism, while societies that are too strong end up anarchically producing weak or paralytic states unable to govern or protect their citizens.  For Acemoglu and Robinson, only the ‘Shackled Leviathan’ is the ideal situation where the narrow corridor of liberty can endure.  Societies can be strengthened despite the presence of ‘growing Leviathans’, only through the instantiation and institutionalization of human rights:

‘The most critical idea is to leverage society’s mobilization. But how do you achieve that in practice?  Are there organizational avenues to help society expand its capabilities and control over the state and elites?  We believe the answer is yes….to build on protection for the rights of citizens against all threats, including those from the state, the elites, and other citizens.

Rights are intimately connected to our notion of liberty as protection of individuals from fear, violence, and dominance.  Though fear and violence and have been the main drivers of people fleeing their homes, dominance – the inability of individuals to make choices and pursue their lives according to their own values – is often as stifling.  Rights are fundamentally ways for society to encode in its laws and norms the capacity of all individuals to make such choices in their lives.’ (Acemoglu and Robinson, 2019, at 492.  Italics added.)

Certainly, none of us in this cataclysmic year can take for granted how many of our choices (including all that constitutes our sense of autonomy and agency) have been made under varying gradations of unfreedom around the world. Whether it was State-authorized surveillance, restraints on freedom of movement and association and assembly, or in some cases even arbitrary deprivation of life, as well as violations of the right to an adequate standard of living and the right to the highest attainable standard of physical and mental health, there is a deep shared baseline of unfreedom that humanity experienced in 2020 that should leave an indelible mark in our consciousness about why our individual, group, and collective human rights matter. The 2020 Freedom House Report calls this year ‘A Leaderless Struggle for Democracy‘, mapping nearly two-thirds of the world as partly free to not free:

The COVID-19 Civic Freedom Tracker reports an almost global scope to mechanisms for routinized human rights suppression, with 95 countries making emergency declarations, 47 countries reported to have issued measures affecting freedom of expression, 128 countries reported to have issued measures affecting freedom of assembly, and around 50 countries reported to have issued measures affecting privacy.  Applying Acemoglu and Robinson’s thesis, this is a global situation normalizing the ‘Unshackled Leviathan’ to our collective peril.

The state of global unfreedom in 2020 provoked me to remember that the freedoms that we teach in modern international law actually span just about one or three generations at best – whether we refer to human rights enshrined under the 75 year old Charter of the United Nations, the 72 year old Universal Declaration of Human Rights, the 54-year old International Bill of Rights (composed of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights), the 55 year old International Covenant on the Elimination of Racial Discrimination, and other much more recent major human rights treaties (e.g. the 41-year old Convention on the Elimination of All Forms of Discrimination Against Women; the 36 year old Convention against Torture; the 31 year old Convention on the Rights of the Child; the 30 year old International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families; the 14 year old International Convention for the Protection of All Persons from Enforced Disappearance; and the 14 year old Convention on the Rights of Persons with Disabilities). Our global experience of freedom under a global system of international law and human rights is ultimately of recent genesis, which, I surmise, is the reason why international solidarityremains an aspiration and not our default impulse.  Some modern liberal democracies have been in existence for far longer (such as the United States at 243 years old, Canada at 153 years old, the Kingdom of Great Britain at 313 years) than the actual experience of the codification of human rights in international law, let alone the imperfect and variable implementation of human rights treaties within the existence of these treaties.  ‘Modern’ human rights law is, at best, a maturing septuagenarian. 

Favourite Readings 2, 3, 4, and 5: von Bernstorff and Dann (eds.), The Battle for International Law; Koskenniemi, Rech, and Jimenez Fonseca (eds.), International Law and Empire; Amorosa, Rewriting the History of the Law of Nations; Eslava, Fakhri, and Nesiah (eds.), Bandung, Global History, and International Law.

Provoked by Acemoglu and Robinson’s thesis, I was moved to reflect on international legal history to recall other global experiences of widespread unfreedom, such as slavery, empire, hegemony, and colonization. Four of my favorite readings this year all focused on the phenomenon of imperial colonization (Western as well as Eastern, such as through the Chinese, Indian, and Ottoman empires) of the developing world, and the doctrinal, as well as historiographical impacts of this phenomenon on the institutions and inequalities of international law, especially in the conceptualization of human rights and development. Jochen von Bernstoff and Philipp Dann’s edited volume, The Battle for International Law: South-North Perspectives on the Decolonization Era was a riveting illuminating read about the often anonymous work of ‘Global South’ international lawyers that successfully challenged ‘Global North’ attempts to regulate the formal decolonization process between 1955 and 1975 – the ‘Sattelzeit’ (transitional phase) period that connect ‘the end of ‘classic’ European imperialism with the long rise of US dominance in international relations and a specific model of global capitalism’ (at 5).  The polemics in this period – over statehood, human rights, apartheid, international institutions such as the United Nations and the World Bank, and the fraught interpretive narratives of the right to self-determination – would spill over to modern controversies on international law and human rights, whether in the shape of today’s international trade, investment, finance, banking, and other economic regulations that reflect ‘Global North’ interests or ironically privilege hegemons within the ‘Global South’. I would recommend this book in international law teaching, especially to reorient students away from the canonical international law textbooks (which are, in themselves, often produced in the ‘Global North’ and with predominant narratives of the ‘Global North’). For much the same reason, Paolo Amorosa’s Rewriting the History of the Law of Nations: How James Brown Scott made Francisco De Vitoria the Founder of International Law aimed to shed light on James Brown Scott’s project to give prominence to the underestimated contributions to international law of the Spanish Scholastics (Bartolome de las Casas, Francisco Suarez, and Francisco de Vitoria), especially in the powerful debates where the latter argued for the equal rights of indigenous peoples and native Americans at the dawn of Spanish colonization in the known world, under what Amorosa describes as ‘the Catholic Conception of International Law as a Collective Scholarly Enterprise’ (at pp. 222 et seq.), expanding on a human rights narrative traceable to a ‘Catholic conception of our Declaration of Independence…the equality of rights based on creation’ (at 204), not at all far from the natural law doctrinal approaches in the recent 2020 Report of the United States Commission on Unalienable Rights. Amorosa’s book reads almost biographically as an anatomy of an American scholar’s scholarly and diplomatic attempt to move away from Grotian orthodoxies, but which Amorosa deftly revealed was also coincidentally (if not strategically) reflective of also appealing to the United States Government’s burgeoning imperial interests beginning with its territorial acquisitions under the 1898 Treaty of Paris. Von Bernstoff and Dann’s edited volume, as well as Amorosa’s book, both unmask the principled invocation and defense of human rights, as well as its strategic instrumentalization and distortion through imperial policies of new and old ‘Global North’ hegemons.

On the other hand, Martti Koskenniemi, Walter Rech, and Manuel Jimenez Fonseca’s edited volume, International Law and Empire: Historical Explorations (OUP, 2017) refreshingly scrutinized Grotian orthodoxies in international law with an impressive range of historical research and archival analyses that ultimately establish the indeterminacy of narratives of imperial hegemonies in international law. Arthur Weststeijn’s reverse view of the encounter between the Dutch East India Company and Southeast Asian Malay empires – and the respective depersonalized and personalized approaches to rule of law and government in the non-State mercantile context and the Malay kingdom context – in the very first chapter of this epic volume was a welcome page-turner.  In my own continuing scholarship and archival research on Southeast Asia and law of the Association of Southeast Asian Nations (ASEAN) in the last decade, I had often observed that this area was almost always underwritten from the Southeast Asian lens of initial encounters with the West. Moreover, the manner in which colonialism obtained any degree of international legal justification at the time might have been helped considerably by Judge Huber’s doctrine of intertemporal law in the Island of Palmas case, which was then also taking place in Southeast Asia between colonial powers the Netherlands and the United States, but in which the Southeast Asians concerned (whether the inhabitants of the Island of Palmas themselves or their formerly independent territorial sovereigns Indonesia and the Philippines) were admittedly never heard but only taken as ‘artifacts’ of this extremely consequential case in public international law. Certainly, this volume will spur even further research that subverts the alleged peripheral place in international law-making for smaller countries of Southeast Asia, relative to the dominance of European, Chinese, and Indian hegemonic empires. 

This theme of reimaginating core and periphery in international law runs vividly as well through the epic edited volume of Third World Approaches to International Law (TWAIL) stalwarts Luis Eslava, Michael Fakhri, and Vasuki Nesiah, Bandung, Global History and International Law: Critical Pasts and Pending Futures, which intricately weaves different postcolonial developmentalist narratives from the 1955 Asian-African Conference held in Bandung, Indonesia. As this edited volume candidly admits, ‘despite all the ideological diversity at Bandung, including disagreement on what constituted colonialism and imperialism, almost all Bandung delegates were united by a discourse of developmentalism’ (at 21).  I found this volume provocative in its scope of reflection, the richness of its international legal imagination, the obvious ambition for interregional cooperation in South-South terms, and the ultimate project of ‘altering international law’ (in the words of one chapter author) towards what Eslava, Fakhri, and Nesiah dub as the ‘spirit of Bandung’, and what that means for the postcolonial dream of political self-determination, sovereignty, peace, equality, and solidarity in development under the Bandung Principles. International solidarity remains just as elusive then, as it does now.

All in all, each of these four volumes are influential at a time such as now, when all of us live in relative degrees of unfreedom, seeking to imagine the future of international law, human rights, and development in a post-Covid world. A quaint turn to international legal history may well show us that we have been here before, and that the classic tensions between States and societies over the width of human rights have actually played out before many times over in imperial and colonial contexts between the ‘developed’ and ‘developing’ world.

Conclusion

If we apply Acemoglu and Robinson’s thesis, the ‘narrow corridor’ of liberty has only really been guaranteed for three quarters of a century, when shackles were placed on would-be Leviathans through the international rule of law in the Charter-based international system, the global scope of human rights treaties and custom, the creation and proliferation of modern international institutions, among others. When we all have varying experiences of freedom and unfreedom from one to three generations, how closely do we see others through and beyond our own experiences, enough to act in order to realize the international solidarity as a precondition to human dignity? How urgently do we pursue international solidarity through ‘sustainability in international relations, especially international economic relations, the peaceful coexistence of all members of the international community, equal partnerships and the equitable sharing of benefits and burdens, refraining from doing harm or posing obstacles to the greater wellbeing of others, including in the international economic system and to our common ecological habitat, for which all are responsible’, as envisioned by the United Nations? 

Depending on what 2021 looks like, we might see the Draft Convention on the Right to Development approved. Significantly, Article 3(g) the draft Convention provides for International Solidarity as a General Principle governing the implementation of the Right to Development:

‘Article 3(g):  International solidarity: the realization of the right to development requires an enabling national and international environment created through a spirit of unity among individuals, peoples, States and international organizations, encompassing the union of interests, purposes and actions and the recognition of different needs and rights to achieve common goals; this principle includes the duty to cooperate.’

2020 has not been a shining example of international solidarity, with rampant tribalisms dominating the race for distribution of Covid vaccines, as well as dwindling access to external international donor resources and humanitarian assistance for developing countries and least developed countries in a time of severe economic and social hardships. Ironically, this time is reminiscent of imperial hegemonic dominance in international law, only this time the reins of power rest with States and non-State actors that possess the critical technological resources, health innovations and intellectual property such as vaccines, global economic supply chain coverage and distribution, dollar reserves and military forces, among others. The four volumes of international legal history that I read this year taught much about the grassroots successes, as well as the failed impasses, in checking imperial hegemonic dominance – whether from ‘Global North’ empires or ‘Global South’ empires such as China. Acemoglu and Robinson’s faith on human rights as the shackles that can constrain hegemons or Leviathans, in my view, wholly ignores the international, regional, and domestic edifices of cooperation necessary to realize all civil, political, economic, social, and cultural rights. International solidarity is not a voluntary act of charity, but encompasses an actual international duty and obligation to cooperate, which is every bit as intrinsic to the ultimate implementation and realization of every human right. Without any sense of unity and cooperation among individuals, peoples, States, and international organizations, meaningful acts to respect, protect, fulfill, and remedy human rights will not be possible.  In 2021, I continue to hope that the ultimate project of the invisible college of international lawyers is to achieve unity and cooperation towards the realization of all of our human rights.