The Rise and Fall of Eunomia (re-run) – Episode 3: Fin de fête

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.

Many states, however, were by this stage growing very impatient. Some had tried to ‘withdraw recognition’ of Eunomia. As one international judge put it, ‘when it comes to recognition, what is once given cannot be taken away. A state can no more be unrecognized than a child can be unborn.’ Privately, there were mutterings that ‘this whole Eunomia business has gone too far,’ but there was little political will to take the matter any further, and a fear that anything that opponents could do legally would turn against them and perhaps even further undermine the last remnants of the international state regime. Sanctions had not worked either and this was unmistakably one of Eunomia’s great sources of pride: not having an economy of its own to speak of, it was quite happy to go on litigating away at a loss and in the face of mounting boycotts. Between Savros’ funding and a successful direct global internet donation scheme, Eunomia felt no economic effects from isolation.

But perhaps what irked states most besides the ICJ cases was Eunomia’s use of its adherence to the Rome Statute for the International Criminal Court. States had been quite content to ignore many of Eunomia’s interstate complaints before human rights treaty bodies, knowing full well that little would come out of them. Such was not the case, unfortunately, of the ICC regime. Using the same basic model it had built on so successfully in other contexts, Eunomia decided to draw up a list of states parties to the ICC whose nationals it suspected of having committed international crimes. Then, almost overnight, it referred all of their ‘situations’ en masse to the ICC Prosecutor. Given that the Prosecutor had never mustered the courage to launch investigations on his own and always dutifully relied on state referrals, this was seen as a very decisive trigger. Indeed, the Prosecutor, who was trying to fend off suspicions of financial impropriety, was very happy to oblige and soon announced a whole list of indictments. This unleashed a furious series of diplomatic protests to Eunomia accusing it of engaging in ‘lawfare.’ There were even some starkly frank behind-the-scenes admissions by powerful European states that the ‘ICC was always supposed to be about Africa,’ and that Eunomia needed to do some serious political catching up if it thought that attacking some key supporters of the ICC would improve its fortunes. Some suggested that the Rome Statute should be amended so that states could only refer their own situation, a remarkable reversal given that this had initially been seen as the anomaly. To those who argued that referring a situation to the ICC was incompatible with friendly bilateral relations, Eunomia responded that it was merely watching out for other states’ best interest, even if they had momentarily strayed off the path of international virtue. Privately, several statesmen who were targeted by indictments indicated that a red line had been crossed and warned of ‘dire consequences’ were this ‘farce’ to go on.

Internal troubles

In the meantime, Eunomia had been experiencing some internal difficulties of its own. In the early stages, it had seemed as if all goals could be pursued simultaneously, without much need to choose: Eunomia would be everything for everyone, a motherland for worthy causes. But tensions had begun to appear. The radical environmentalists at the Environment Ministry complained that too much attention was paid to human rights and not enough to Gaia. Human rights types, reinforced by the pacifists, had begun to seriously challenge the international humanitarian lawyers for failing to seriously question war and aggression. Within the rights camp, moreover, there was a suspicion that the ‘civil and political crowd’ wielded too much influence, and had a knack for deferring serious campaigns to challenge economic and social inequality. There were also critiques from some on the left that many senior civil servants involved in “international justice” were paid too much, and that the money would be better used for immediate humanitarian relief. Finally, tensions arose within the civil service, particularly the foreign affairs and international justice ministry. Several diplomats had warned the government consistently that it reached endangering its own goals if it continued to pursue a path of maximum litigation. Privately, they pleaded for a less confrontational, less shrill approach to foreign policy, lest Eunomia become irrelevant.

To make matters worse, Eunomia had started to attract some less than savory characters. The Aryan Brotherhood Militia claimed that they were an NGO and that they were persecuted at home; the Wifi Privacy Federation turned out to harbor a number of known pedophiles; the Posthumanist society conducted experiments hybridizing human beings with certain animal species in an attempt to enhance human powers. These groups benefited from Eunomia’s very lax registration laws and the high protection granted to freedom of expression in the constitution, even when they were radically at odds with the substantive goals of Eunomia. More worryingly, law and order had begun to break down in some parts of the country, which had initially opted to create only a very limited, unarmed police force trained in mediation techniques. Lax drug legislation had not helped, bringing to Eunomia a range of characters more interested in artificial sorts of worlds than the sort based on social change that Eunomia was intent on building. These developments threatened to create a backlash from self-characterized ‘old Eunomians,’ who argued that uncontrolled immigration was changing the character of the country and that its population should be capped at 3,600.

Eunomia had to begin policing its borders much more rigorously, prompting criticisms that it was engaging in forms of discrimination. In order to assist with its perceived safety problems, a contract was passed with Murkywater, a well-known private security company, one of the few that was willing to work with the Eunomian government after several had been sued by it for alleged human rights violations. This contract was seen as a betrayal by the human rights old guard, who viewed it as doubly selling out: to the private sector, and to institutional violence. The Interior Minister, however, called for a new human rights ‘realism,’ arguing that Eunomia was suffering from being excessively angelic and needed to get serious about its security, the basic condition for accomplishing anything domestically and internationally.

The Minister’s resolve was soon tested when an angry crowd of libertarian militants demonstrated against a Scandinavian country’s embassy because of its persistent refusal to recognize multi-partner marriage. The Minister felt he had no choice but to send the troops and a detachment of Murkywater was brought in to use non-lethal force to disperse the crowd. Disproportionate use of a taser canon capable of instantly creating a boiling sensation in the intestines of  an entire group, however, caused several casualties, prompting a public outcry. The Minister defended the need to send in the troops before an incredulous parliamentary commission on the basis of the sanctity of embassies, even when the policies of their countries were deeply at odds with Eunomian values, or otherwise risk international isolation. The Prime Minister, Luis Decampo, a long time member of Amnesty International with a strong track record in rule of law and democracy projects, sacked the Interior Minister before all the evidence had been heard, and transferred all the powers of the Ministry to himself, in what some saw as a worrying trend towards concentration of power.

These domestic developments, moreover, were starting to have an international impact. Although the idea that ‘Eunomia has no national interest’ was still popular with die-hard idealists involved in Eunomia’s litigation schemes, this was not necessarily true of a large chunk of population that had joined Eunomia over the years, particularly to service Eunomia’s large population of international lawyers. These were individuals who had been attracted by the isolation, splendor and relatively high salaries of Eunomia, many of whom increasingly expressed frustration at the economic impacts of states boycotting Eunomia and increasing visa restrictions for Eunomians. They tended to see themselves as ‘Eunomians’ rather than simply random world citizens, and thought that Eunomia’s legal zeal was being bought at the price of their comfort. They argued that more of a balance should be struck between the needs of international justice and Eunomia’s own, emerging “national needs”.

Losing its way

Increasingly, Eunomia’s international legal successes seemed increasingly hard to sustain. Although it had secured some early victories through its attempts to hold international diplomacy to high standards of transparency, Eunomian diplomats increasingly wondered why they found it so difficult to be invited to important meetings. They consistently occupied the floor in plenaries of international conferences, but it was becoming apparent that the real decisions were made in closed-door meetings where they were not welcome, and which they often only learnt about after the fact. It was not obvious that being a state had brought much diplomatically in comparison to being an NGO, except long and tedious protocol. The right to vote helped when a vote was a close call (but it rarely was), and even Eunomian delegates were beginning to hesitate to scuttle entire conferences. This was especially the case after at least one international meeting on the possibility of a global Tobin tax was aborted when Eunomia adopted a particularly intransigent line that led states across the spectrum to back off collectively at the last minute. As one disenchanted Eunomian commentator put it, ‘states have shown that they had rather bond with some of their worst adversaries instead of socializing with a state who, as they see it, does not play by the rules.’

At the ICJ, Eunomia’s initial successes had given way to a feeling that states were increasingly developing strategies to avoid it. Of the 65 states that had recognized the ICJ’s compulsory jurisdiction when Eunomia started its campaign, 80% had withdrawn it by the time of the South Gacaca case, and of those most were hopelessly ‘virtuous.’ The ICJ was at risk of becoming a moribund institution except through special agreements. Only two years after having its docket filled by 90 cases per year, largely thanks to Eunomia’s erga omnes litigation, the flow of cases had been reduced to a trickle. The Permanent Court of Arbitration, conversely, saw its business boom, inaugurating what some saw as a formidable regression in international adjudication to something very reminiscent of the late 19^th Century. It was becoming increasingly clear that Eunomia’s litigation had the potential to destroy the very ICJ that it had intended to use as an instrument in its fight for the strict application of international law.

Domestically also, discontent had begun to reach a critical point. In an effort to diversify its sources of revenue away from foreign donors and ensure its longevity, the Eunomian government decided to launch a broad program of privatization of its services. Among the bolder proposals put in place had been an effort to effectively incorporate the state, creating what was widely touted as the first citizen-shareholder controlled polity. This had at first seemed consonant with Eunomia’s experimental identity, and a good way of making sure that the citizens kept a vested interest in Eunomia’s fortunes. However, some Eunomians had turned out to be more shareholder than citizen, and had of late become quite visibly upset that the state was systematically pursuing courses of action that may have boosted its cosmopolitical credentials at the price of reducing their return on investment. Moreover, there were rumors that, in a bizarre twist, a huge hedge fund had managed, in circumvention of rules that prohibited citizens from divesting themselves of their shares to non-nationals, to buy at a discount the shares of some of the first groups to depart. A leak from a former minister revealed that the hedge fund may (although this was very hard to confirm) have been a front for a millionaire weapons dealer working in tandem with a middle power known for its international legal obstructionism. Eunomian purists were not amused at the description of their state as the largest “GONGO” in the world.

But perhaps the last straw for many states was ‘Operation Most Wanted.’ Increasingly pressed by their sponsors to come up with results, Eunomian lawyers had engaged in a frantic search to find one last great legal ‘coup’ that would spectacularly advance their cause. The attempt to transform parts of Murkywater into a ‘humanitarian intervention commando’ that would have represented Eunomia’s spectacular contribution to Responsibility to Protect failed when the financial costs became evident and not enough Eunomians, increasingly spoiled by the Southern Pacific sun, volunteered to serve for the force. More realistically, Eunomian lawyers came to see that no real change could be accomplished in the international system unless a whole range of unsavory individuals were removed from the levers of power. A former Wiesenthal Centre investigator was called in to head a new campaign to rid the world of these undesirable elements. Some individuals were lured to Eunomia for investment conferences, only to be rounded up by the police at dawn and arrested. Details emerged of a shady ‘task force’ within the Ministry of justice and international affairs that recruited private contractors through a web of screen companies to kidnap individuals abroad suspected of having committed war crimes. Eunomia soon announced that it had adopted a universal jurisdiction law, based on the old Belgian model, allowing Eunomian courts to try anyone involved in genocide, crimes against humanity, war crimes, aggression and ‘massive human rights violations’, regardless of who committed them, where or against whom. The law had been adopted secretly and its promulgation was a surprise to many. At the first trial, the Eunomian High Court found that one general could be prosecuted regardless of the fact that he had been kidnapped because it was not known who had brought him to Eunomia (he was found bound in a boat in the main harbor), and those responsible were presumed to be private actors.

All states whose officials had been arrested immediately and jointly brought proceedings before the ICJ, arguing that the immunities of their agents had been violated. Moreover, even some whose officials had not been arrested decided to sever all diplomatic ties with Eunomia, shutting their embassies, recalling their personnel, and ordering the expulsion of Eunomian diplomats in their home territories. Eunomian lawyers defended their state as best as they could. They argued that Eunomia had merely implemented its obligations under the Rome Statute of the ICC by adopting an immunity standard in line with that of the ICC; they suggested that the freedom of these criminals created a very real threat to Eunomian public order the justify exercise of universal jurisdiction. But other states fought back energetically. They argued that the claim that the ICC could do away with personal immunities of incumbent government members altogether was shaky and that even if it could, this did not mean that so could states. Eunomia was attacked as ‘playing God,’ and tinkering with balances that had taken centuries to elaborate and which alone could prevent a war of all against all internationally. Moreover, they argued strongly against the suggestion that ‘massive violations of human rights’ as such could ever justify universal jurisdiction, arguing that this was an example of ‘pure international legal spin.’

What followed could only be interpreted as a major rebuke for Eunomia. The ICJ ordered the immediate release of most of those who had been arrested and issued an injunction to that effect. It found that the general ‘grave violations of human rights’ ground for exercise of universal jurisdiction was indeed in excess of what international law permitted. Furthermore, it rejected the argument that international law had changed since Yerodia so much that personal immunities of incumbent heads of states and ministries could be trampled, even under cover of discharging Rome Statute obligations. Indeed, the ICJ probably saved Eunomia, given that several states had begun sending military vessels off its territorial waters in what was interpreted as a thinly veiled threat of invasion.

These episodes inaugurated an intense period of soul searching in Eunomia. Had the experiment been allowed to go too far? If so, how far was too far? In seeking to limit its ambitions for international justice, would Eunomia not forfeit justice entirely? The UN, which had for so long stood benevolently by, had of late manifested a clear displeasure. A senior member of the Secretary General’s cabinet had hinted that Eunomia was ‘usurping the general interest’, and that the UN was, in the end, better positioned to try and extract a sense of direction from a multiplicity of states than any single state – let alone, he suggested, a state that was only a state in name.

Some within Eunomia argued that the country should orchestrate a show of defiance and stand up for its cosmopolitan principles. They grumbled that if bowing to international law was all that Eunomia could do, then it might as well not exist. Eunomia, they argued, was never really about international law but about international justice, and if the former was no longer a route to the latter, then it should be ditched. But the emerging ‘realist’ school within the Foreign Ministry made the argument that ultimately convinced Savros: if they ignored the ICJ’s ruling, they would essentially be undermining their international position, and condemn their own strategy. If Eunomia failed to respect international law simply because it disagreed with what international law – or what the ICJ said in a particular case – then what would remain of its authority? Eunomia, after all, was an enterprise that had from the start been embedded in the legitimacy of the international legal project, and its senior lawyers found it very difficult to imagine how they could chart a course entirely separate from it (indeed a survey of leading Eunomian intellectuals found that none of them could come up with a common definition of justice, let alone agree on a common substantive project of justice).

Moreover, some within the realist camp started to argue that for at least some issues, quiet compromises and behind-the-scenes pressure might occasionally lead to better results than the search for legal confrontation. A widely-read op-ed in the Eunomia Star argued that the time for ‘normalization’ had come. Eunomia should adopt a strategy of ‘constructive engagement’ with states, one that would allow it to occupy a place in the international community of nations commensurate with its standing. There were some who suggested that in a sense Eunomia had already been conceived as merely a stepping stone towards a more fully integrated international community, and that they would gladly forfeit their role as international irritant if more centralized institutions were willing to step in.

In the face of these setbacks and the increasingly authoritarian tone of Eunomian officials, hard-core activists, including some of the founding Eunomians, began to leave. They argued that Eunomia had lost its way, that in becoming a state it had inevitably and excessively compromised with the inter-state world, that it was no longer a beacon of hope and radicalism. They wanted to get their freedom back, to be in the fringe again, to enjoy the thrill of holding firmly to their views, come what may. ‘You can’t be against what you are a part of’ became the informal motto of this increasing “return to non-stateness” movement. Savros was said to spend long hours on his own in his Eunomian palace, apparently under the influence of chianti, rambling about new global order and cosmopolitan justice. His fortune had taken a whipping after investing heavily in the O-bad, a revolutionary reading device that was meant to change the way people read forever. Seeking to recoup his losses, he decided to first halve his contribution to the Eunomian budget and eventually to pull the plug. Prospects had never seemed as grim for the island state.

Eunomia: In Memoriam

On a quiet Summer evening, exactly 10 years after declaring Eunomia’s independence, the last ship left after a brief but emotional ceremony. Only a family of caretakers was left to welcome the occasional tourist. A significant part of the population had already gone into exile when undiplomatic looking foreign gunboats had appeared on the horizon, apparently unwilling to ‘pay the blood tax’ in defense of the island. Although it was rumored that the ICJ would soon hand down a decision in the ‘global warming’ case that was favorable to Eunomian theses, the waters around Eunomia had, ironically, been steadily rising in the years that it had taken for the case to be heard, and it was suspected that it might soon lose much of its territory. Some argued that Eunomia had spent too much time targeting states when global warming was mostly attributable to big corporations, paradoxically fighting ‘yesterday’s battle’ against a sovereign order already weakened by globalization (the less generously inclined pointed out that Savros’s huge financial interests in the industry always made him an unlikely contender to challenge the forces of capitalism). The argument that Eunomians were immersed in world order views from a bygone era was particularly stinging. Eunomian institutions had begun breaking down and the country’s debt worthiness was relegated to an abysmal C after it defaulted on several loans (the IMF, partly under pressure from several big states, had been very reluctant to extend delays).

Historians to this day debate the significance of Eunomia. For some, it was a lesson in the impossibility of transcending a world of sovereigns, of the hubris of the non-state. Critics had a field day waxing sarcastic on ‘the state that did not want to be a state and only became a state to undo itself as a state.’ Some credited the whole episode for leading to a fresh reevaluation of the moral worth of the Westphalian consensus, one anchored not simply in the brute force of sovereignty, but in the need to protect against all hegemonic urges – even the seemingly most well-meaning ones. Roderick Grossinger, an old advisor to princes and occasional theorist of realpolitik, wrote one of the definitive obituaries: ‘Eunomia learnt the hard way that, in the international system, there are the written rules, and then there are the “other” rules. You can abide by the written rules as much as you want but unless you abide by the unwritten rules you will never be taken seriously as a member of the “club.” You will be the unwanted guest at the party, the one that managed to sneak in without a formal invitation, but who everyone wants to avoid being seen in the company of.’

But for others, the legacy of Eunomia had in some ways been great. Its larger significance, it was argued by some, was to have paradoxically helped make the case that, in an increasingly globalized and integrated society, the time had maybe come for a revamped global international organization to take over the sort of broad social defense role that Eunomia had, however imperfectly, sought to fulfill (there was increasing talk of the UN being able, under quite restrictive conditions, to accede to a modified version of the ICJ’s contentious jurisdiction). As Professor Gill Savalas put it, ‘Eunomia has been to the global rule of law what Belgium universal jurisdiction was to the rise of supranational criminal law: we may be glad that it is over, but international law wouldn’t be the same without it.’

For yet others, Eunomia had, at least for a while, harnessed the power of international law to challenge the accepted ways of the world. It had called attention to global injustices, and had given civil society a means within which to stand shoulder to shoulder with states. It had shown that not all in the international legal system needed to be stagnation and repetition.  Rather than change the fundamental nature of the international legal order, it had perhaps most significantly shown that it was possible to change the nature of statehood. Others, no doubt, would follow suit. Eunomia had lived and, to this day, it continues to live on in the memories of the idealists who wanted to create a state to change the world but found that, instead, the world changed their state.