In the course of reading Carsten Stahn's (pretty lumbering) book The Law and Practice of International Territorial Administration, the following excerpt is encountered:
What is needed, in the immediate post-conflict period is not quick elections, democratic ferment, or economic "shock therapy" but a more controlled and gradual approach to liberalization, combined with the immediate building of government institutions that can manage these political and economic reforms. (Roland Paris, At War's End)
...or, phrased more succinctly, "institutionalization before liberalization."
That, one is tempted to adjudge, sounds very reasonable in the first instance. It is at once logical and legally sound. It is consonant with the idea that democracy cannot be imposed but must perforce evolve: It has to be organic and autochthonous, and it can only develop as its foundations are gradually internalized among the dramatis personae (or, in modern parlance, the stakeholders). Stahn not only criticizes some territorial administration projects for having failed to secure the locals' backing (which is "old news") but shrewdly distinguishes between domestic consent and domestic support. He adroitly accentuates the importance of the latter as a conditio sine qua non for an international governance mission to stand any chance of success.
Yet, on closer inspection the above postulates can be descried as suffering from a number of deficiencies and assumptions.
For one thing, the reasoning is a standard Catch-22. The naissance of democracy is contingent on strong domestic "ownership" and local "capacity-building" (the buzzwords of "good governance" de nos jours); but how are these possible without the existence of a environment of liberalism, pluralism, and--yes--democracy? In other words, how can people freely decide what type of a government they wish to have (viz, internal self-determination) if there is no opportunity for them to express their views by way of a one-person-one-vote mechanism operating among a politically-educated electorate?
Attempts to reform or rebuild the economy in the administrated areas along the lines of the free-market laissez-faire model are also lambasted, on the grounds that doing so is contrary both to human rights standards (self-determination, again) and the laws of occupation. That may well be correct. However, territorial administrations are necessarily long-term endeavors (v. infra). As such, they are also expensive endeavors. Both the administration and the reconstruction (one will recall that such projects are most frequently undertaken in the aftermath of a devastating and destructive conflict) require a continuous inflow of exorbitant quantities of money. Donor conferences and charity pledges only go so far, and mostly last until something more current (and bloody) grabs people's attention (another conflict elsewhere, perhaps). Whence, then, are the funds to be procured? The answer is: private investors, especially via F.D.I. However, foreign investors demand stability, transparency, certainty. They need some manner of guaranty. An environment in which neither the political nor socioeconomic order is anywhere close to solidification does not lend itself well at all to inspiring investors. Without such investments though, it is dubitable whether the administrators or the domestic decision-makers--such as there be--can foster a domain conducive to the emergence of a free, liberal, democratic society. The whole exercise becomes a matter of petitio principii.
Next comes the no small matter concerning the timeframes involved. Democracy does not evolve in a matter of years (q.v. the amount of time the South needed to accept desegregation); sometimes it does not evolve at all (pick many former U.S.S.R. states or any post-Arab Spring country, with the cautious exception of Tunisia). Stahn and many others advocate a policy of "persuasion": convincing the local stakeholder to gradually internalize the ideals of democracy, etc. They suggest the first step be the establishment of an independent and impartial judiciary. Such a vision though is woefully divorced from the realities on the ground. Brutal wars do not happen due to "misunderstandings" and "misapprehensions," but due to incompatible and frequently diametrically-opposing goals and objectives of the belligerents. The ensuing war occasions thousands of fatalities, tens of thousands of wounded, hundreds of thousands of refugees, and millions of seething, livid people. The proposition that such people will, within a few years, be able to identify and focus on commonalities, and give each other a group hug is ludicrous... - and that encompasses members of the judiciary who, ultimately, are members of the warring communities. Moreover, the administrators do not have years on end to wait for a groundswell toward amity and reconciliation: Territorial administrations are necessarily transitional and temporary.
The conclusion is hence insuperable: The precepts of democracy, liberalization and liberalism, tolerance, pluralism, rule of law, etc. must be foisted, with some measure of compulsion, on postconflict societies. The approach does not have to be exclusive of continual efforts to coopt local stakeholders--indeed, doing so is indispensable to eventual success--but even medium-term results are impossible without a degree of coercion.
One argument frequently advanced against coercion is that local actors are better equipped to handle local problems. They carry more gravitas with the local populace and are more cognizant of the local challenges, history, culture, values, etc. That is very myopic and blinkered reasoning: It presupposes that the external administrators are complete neophytes. The situation is rather the reverse, however. The administrators have their own experience, whether they are Westerners who come from the history of centuries of conflict and bloodshed or whether they come from areas that experienced centuries of colonial turbulence and postcolonial strife. In any case, the administrators are informed by first- and second-hand knowledge of events whose corollary has been the realization that representative democracy is the best form of government, that the rule of law, separation of church and state, separation of powers, etc. are the best form of governance, that freedom of conscience and speech and assembly are essential for a thriving society, that the free-market economy is the optimal catalyst for sustained prosperity, and so forth. Such knowledge, experience, and expertise cannot be dismissed as inferior to the locals'; quite the contrary.
Furthermore, it is questionable to what extent local leaders possess genuine sway and respect. After all, they are the very same ones who initiated, inflamed, and facilitated the destructive conflict in the first place. Rather than defer to them and strive to mollify them through compromise, it might be more advantageous to circumvent them and appeal directly to the population. That was the tactic utilized in e.g. Cambodia, Bosnia, and Afghanistan, and though it was (boringly predictably) criticized, it is difficult to envision an alternative course of action the respective administrators could have taken.
All this is a gamble. Anything externally imposed runs the risk of encountering implacable opposition solely by virtue of being foreign. Internal malcontents might possess the pull to constantly and effectively undermine even the most forcefully imposed initiatives. Ultimately, contrary to the conventional wisdom, the population (or a belligerent community) might not, even latently, be favorably disposed toward prosperity and stability, but be interested in brute dominance.
An international territorial administrator does not have the luxury of investing decades into endeavoring to change the hearts and minds of the administrated population. Moreover, such an approach elicits the difficult question of why several generations (at least two or three, possibly many more) of people should be subjected to continued repression, oppression, penury, and an overall lesser standard of life when it is possible to fast-forward the process of democratization and liberalization. Tens of millions more Afghan women do not have to be subjected to a life of ultra-patriarchal tyranny and all manner of physical and psychological abuse merely because academics believe that equal rights should not be imposed and international politicians do not have the resolve needed to ensure that is accomplished as soon as possible. The bulk of international polity is today more sensitized both to the value and transience of human life than ever before. It is increasingly not anymore the question of the "less fortunate" (read: by sheer accident of birth) becoming empowered politically and economically, but their becoming empowered politically and economically right now (or, at least, as absolutely soon as possible).
"Institutionalization before liberalization" not only entails no guarantees that the "liberalization" part will ever be attained; it also requires considerable time for an outcome (either way) to emerge. Reversing the principle necessitates determination, resources, and, frankly, "thick skin" (for one, there will be inevitable, though mendacious and selfserving, charges of neocolonialism leveled), but the millions of longsuffering and brutalized people to whose aid international administrators purportedly come deserve nothing less.
Thus, "liberalization before institutionalization," with the utmost resolve and uncompromising, long-term commitment should be the imperative in scenarios of comprehensive international territorial governance missions.
©2015 Michael L.S.
Reading through Anghie's (rather brief) exposition on some of the writings of Francisco de Vitoria--widely considered the pioneer of international law--one cannot but be struck by the parallels that can be drawn between his thinking more than five centuries ago and the doctrines informing some of the most recent of global developments.
When the Spanish encountered the "Indians" (Native Americans), they were unsure how to relate to them. A common error is made in this regard by believing that the former viewed the latter ex ante as less than human. That was not the case: De Vitoria and his contemporaries considered the natives fully human. They also acknowledged that they were "civilized," in that they had discernible values, systems of governance and societal order, capacity to interact with others, etc. The natives were, accordingly, fully human, equal in their humanity to the Spanish. However, the Spanish recognized that the natives' values system was at prodigious variance with their own, and the question ineluctably arose of how to reconcile them (if possible) or whose system would take precedence (if not).
De Vitoria astutely sidestepped the prevalent dogma at the time that all authority was ultimately traceable to a "god," or, more plausibly, the "god's" earthly representative (the pope). The reasoning was that the natives had never heard of Christianity and could hence not be held liable under its injunctions. He thus fell back on the (Aquinian) notion of natural law, i.e. an objective, ubiquitous set of rules and values immanent in all human beings. De Vitoria termed its contemporary incarnation as ius gentium. Here was the rub: He posited that, whereas ius gentium was universal, the Spanish had, in a manner of speaking, "perfected" it. By implication, the natives required assistance to self-realize the truism, benefits, and execution of ius gentium, and it was the Spaniards' duty to proffer that guidance and help. Crucially, any opposition was deemed unreasonable: If the norms of ius gentium were the perfection of thought and practice for all humankind, then any opposition to it was a fortiori retrograde, reactionary, and progress-retarding, and, accordingly, had to be staunched... - by any means necessary. On that view, by extirpating dissent to the process of inculcation of ius gentium among the natives, the Spanish were doing them a major favor (even if that "favor" ended up manifesting itself in the form of blatant theft and ruthless genocide).
The analogy with modern times is glaring. What was ius gentium in the days of de Vitoria is the conceptualization of putatively "universal" human rights (liberal democratic governance, rule of law, separation of powers, equality of the sexes, various freedoms (thought speech, etc.), protection of minorities, and so forth) today. These values--just as ius gentium of old--are a product of evolution of the Western thought, and have been institutionalized by means of international organizations (e.g. the U.N.), which, themselves, are a product of Western politics.
The U.N. has promulgated such values through the Universal Declaration of Human Rights, the International Covenants, and other instruments. The Europeans states have embraced even higher normative standards in the form of the E.U.'s Charter of Fundamental Rights and the E.C.H.R. The O.A.S. has its own charter as does the A.U. A.S.E.A.N. and the Arab League also compiled declarations, though these have been rebuked for falling short of the "universal" values.
The question is what happens when a subject deviates from these "universal" norms. That can be due to e.g. its cultural specificities or economic particularities. The Arab Charter on Human Rights, for instance, fails to guarantee equal treatment of women and discriminates against non-citizens' basic rights. A.S.E.A.N.'s attempt has met with even more strident criticism for omitting some of the most longstanding, fundamental protections or providing conspicuous and numerous loopholes to evade them. These, however, are difficult to challenge directly, being that they are endorsed by a multiplicity of quite powerful states. There is an entire official (government) and semi-official (N.G.O.s) "industry" centered around producing reports and conducting campaigns concerning individual states' adherence to the human right principles. Which principles? The "universal" ones, but of course. And where the presumptive "international society" (read: the Western-led international organizations) can, it does its utmost to introduce as many of these norms as possible to the areas under its control (e.g. Timor-Leste, Kosovo, Iraq, etc.). Harking back to de Vitoria, opposition to such endeavors is excoriated as backward, unhelpful, and, yes, hostile. Though such hostility is no longer countered with genocide, its protagonists are excluded from all nation-building processes and, depending on the extent and quality of their opposition, may be subjected to anything from imprisonment to "daisy-cutters."
The issue at the heart of this discourse is what the A.S.E.A.N. Declaration unabashedly makes reference to: the notion of "cultural relativism." It is an idea with which even a cursory observer of current affairs is familiar, to wit, that every society has a right (indeed, a human right!) to practice and safeguard the values prevailing in that society, even if these diverge considerably from the alleged "universal" values. That idea is espoused by such diverse actors as autocratic regimes, leftist academics, Western leaders (still reeling under the burden of colonial baggage), and, indeed, a great many people in the type of societies in the docket, including those (e.g. women) who would benefit from a conferral of the "universal" rights on them. Who, the trope goes, made those rights "universal" and with what justification? What should give the (Western or West-tainted) powers the right to, yet again, impose their views on the sovereign peoples of the world? Did we learn nothing from the brutalities of centuries of colonialist practice?
The opposing view is that of the "soft bigotry" of lowered expectations. The contention here is that the "universal" values are indeed superior to--termed, for simplicity's sake--regional values, and that attempting to equalize the worthiness and merit of the two bespeaks racism, for it implies that the "regionals" are not deserving of enjoying the same liberties and rights as those fortunate enough to be living in, basically, the Western(-modeled) countries. Far from striving to eschew the aggregate of the colonialist enterprise, "cultural relativism" does the opposite: It perpetuates the "natives'" inferiority.
The crux of the matter, therefore, is the status of the "universal" set of human rights norms in comparison to the others. Is it--its misnomer notwithstanding--just one of many acceptable (which itself is a normative term) standards or is it the ideal toward whose truly universal implementation to aim?
Descrying a definitive answer to this is impossible. The Western body politic is petrified of doing or saying anything remotely reminiscent of colonial practices (further affected by the anomie plaguing its society, in which any kind of judgment is unwelcome). The assorted Third World tyrants are keen to maintain the status quo, which is greatly strengthened by illiberal practices passed off as "local culture." Many ordinary people in those societies, too, vehemently oppose change. (That is by no means unprecedented: Some of the most ornery opponents of the Suffragette movement in the West were precisely women. For instance, tales abound of female prison wardens being far more brutal toward incarcerated women's rights activists than their male counterparts. Scores of women, too, made public speeches and engaged in other types of campaign denouncing the Suffragettes.) Who is entitled to deem one system of values better or worse than others, on what basis, and pursuant to what criteria?
Meanwhile, child marriages are rampant. So is marital rape. Cheap child labor supports entire economies. Homosexuals are hanged, "apostates" beheaded, "adulterers" stoned, juveniles imprisoned with adults, "blasphemers" lynched, girls denied access to basic education. The Gulf Cooperation Council states openly practice what can only be described as modern-day slavery. Tens of thousands of people are locked up without any due process, including for political slights and "thoughtcrime." Tens of millions have no recourse to justice against gross excesses by state power. Hundreds of millions are unable to have any input on who determines the course of their lives. Do those individuals not deserve the quality of life that those born in other places in the world are fortunate enough to be able to take for granted? Should those so blessed not assay to help the them?
If the latter narrative is embraced, there will inevitably arise resistance, including from among the "natives." How should it be addressed: the way of the Spanish or differently? Is a universalization of human rights necessarily a zero-sum endeavor, viz, either the current state of affairs is accepted or the errant societies are brought into line, even manu militari if need be?
Might the answer lie in gradual, nuanced--yet insistently, doggedly, confidently, continually driven--change employing methods such as Joseph Nye's "soft power"? That could take generations, meanwhile condemning billions to continued suffering and inferior life quality. Conversely, rapid, revolutionary tactics could backfire (q.v. Afghanistan, Iraq, Libya, and other, less pronounced, cases in Africa), occasioning conflict whose immediate ramifications would be far more detrimental than the invidious conditions at present.
One conclusion does seem inevitable: The "universal" norms of human rights are superior and should be adopted and practiced globally. How that is actualized is a different matter, but de Vitoria's strategy is not an option.
© 2014 Michael L.S.
Great Britain's animosity toward the European Union (and, for that matter, most things Continental) is longstanding and antedates the formation of Union itself by a margin measured in centuries. Brits always had a distaste for the rest of the Europeans; in fact, one can hardly think of any nation on the Continent toward which Brits feel any affinity. Europhobia--mostly masquerading as "Euroskepticism," and colloquially denoting an opposition to formal European integration--has been part and parcel of the British political (and, by extension, legal) life since the country acceded to the European Union forty or so years ago. The hostility toward the E.U. unseated some of the most powerful politicians and even whole governments (the Major administration being the most infamous instance). With the inexorable popularization of the United Kingdom Independence Party (U.K.I.P.), Europhobia has broken through to the fore of the political discourse and has now come to vex all the three mainstream factions, eager to amortize U.K.I.P.'s successes by animating their own rhetoric, burnishing their anti-European credentials, and disseminating promises about "getting tough on [insert putative Euro-generated problem here]."
U.K.I.P. is agitating for a referendum to be organized as soon as possible on the straightforward matter: Does the voter wish Great Britain to exit the European Union?. Though rarely averred explicitly, U.K.I.P. proposes that leaving the E.U. would not entail severing all contacts with the organization, but that the interaction would be downgraded to one of trade and commerce. The incumbent British premier, David Cameron, is also sounding out (or, as the case might be, sounding off) about his country "renegotiating" the terms of its engagement with the Union.
The proponents of Great Britain's independence from the E.U. commonly propound the following arguments:
- The European Union is undemocratic and unaccountable.
- It is expensive, with the E.U. demanding "disproportionate" contributions to its budget from Great Britain.
- It is the provenance of innumerable quantities of migrants, who augment the British population count, infringe on British values, and negatively impact its economy
- It saddles the country with petty regulations, such as those appertaining to Occupational Safety and Health or the apocryphal tale about the "correct" curvature of supermarket bananas.
- It infringes on British "sovereignty," particularly with regard to the stupefying decisions in human rights cases ascribed to some amorphous "European courts."
- It causes Great Britain to sacrifice possible closer relations with its Commonwealth.
(The foregoing is an illustrative, not an exhaustive, list.)
The ineluctable conclusion is that the country leaving the E.U. would be a bonanza in economic, political, cultural, sociological, and many other terms.
However, the Europhobes ignore or do not even reckon with the following:
- If the E.U. is "undemocratic," what is Great Britain? It is a country with a bicameral parliamentary system. Yet, one of those chambers is fully appointed and appointments are made on very arbitrary, capricious, opaque, and all around dubious grounds. The other chamber's deputies are elected through a system where a faction that garners scarcely 40% of the popular vote translates that into holding more than 60% of the seats. Lastly, the head of state is an individual who holds that position by nothing other than accident of birth. The European Union is surely a paragon of democracy in comparison.
- If the E.U. is "unaccountable," then what is the British parliament? Is one seriously contending that the government in London is more "in tune with" someone living in, say, Manchester (let alone Edinburgh or Derry) than are the organs of the European Union!?
- There has been much acrimony about the E.U.'s recent demand for extra remittance to its quasifederal budget from Great Britain on account of the latter's well-performing economy. If that is somehow egregious, why is it not equally egregious that the taxes from the affluent Home Counties are deployed to fund the welfare payments of the putative poor or that they are redistributed to the more indigent areas in the north of the country? After all, a Sussex taxpayer hardly has more of a connection to a politician in Brussels or a Greek in Athens than to a Scot in Glasgow or to an Irishman in Belfast.
- Further regarding the allegedly exorbitant cost of the E.U. upon the longsuffering British taxpayer, it turns out that each Brit pays less than a hundred euros per annum to the E.U. Considering the ability to travel (and settle) in 27 states without any restrictions, avail--freely--of all those states' health care (whose quality very often exceeds that offered in G.B.), and accrue indirect benefits of Great Britain's membership in the Union, that is a pretty good deal.
- As far as immigration, formal studies are unequivocal in determining that European Union migrants are net contributors to the British economy; yes, even after the "flood" of impecunious and supposedly indolent Romanians and Bulgarians. Moreover, E.U. migrants share many of the majority Brits' demographics (ethnicity, religion, cultural and historical heritage, etc.). The drain on the economy is not effected by E.U. migrants. Nor are E.U. migrants the ones who are slow or ill-disposed to integrate in the British society. Nor are they the ones whose values and culture frequently clash with the natives'. The preponderance of the antecedent would be non-E.U. immigrants, and withdrawing from the E.U. will do nothing to stem the tide of them. Indeed, Great Britain would lose many of its most industrious, productive, and best educated residents by withdrawing.
- It is correct to observe that the E.U. has issued edicts that boggle the mind; howbeit, in many cases it was the zeal of the national (and particularly municipal) organs that caused E.U. regulations and directives to be implemented in absurd and frustrating ways. In any event, do the Europhobes credulously argue that exiting the Union would or could cause the "meddlesome" Union diktats to be rescinded? If Great Britain is to continue trading with the E.U., its goods and services will have to conform to Union-wide standards, and that means that the "busybody rules" instituted per E.U. laws will have to remain in situ.
- As regards the human rights charge, Europhobes often (whether due to ignorance or out of intellectual dishonesty) conflate the European Court of Justice with the European Court of Human Rights. The former is an E.U. organ and its decisions have occasioned groundbreaking progress in e.g. consumers' rights, whereas the latter is not in any way connected to the European Union, belonging as it does to a completely separate set of treaty instruments. Withdrawing from the E.U. would in no way rein in "human rights gone mad" pursuant to either the European Court of Human Rights' decisions or the Human Rights Act-inspired British courts' judgments (that Act incorporated the European Convention on Human Rights into domestic law). For that to happen, Great Britain would have to exit the E.C.H.R. mechanism, the political and legal fallout from which would be far more perilous than that of exiting the E.U.
- Concerning the Commonwealth, firstly, by "Commonwealth" what is commonly meant are Canada and Australia; its other significant member states are--not to put too fine a point on it--economic and political basket cases. A question then insuperably arises: How can it make more sense to trade with countries on the other side of the world with populations numbering a few ten million than with a bloc just across la Manche whose population exceeds a half billion? Besides, what makes the Europhobes believe that the Canadians and Australians are idly sitting around just waiting for the "mother country" to come knocking on the door seeking to rekindle ties of yore which opportunity they would eagerly and readily exploit?
- What, therefore, practical benefits from withdrawing from the European Union do the "Euroskeptics" envision, other than being able to pull up the drawbridge and wave their flag again on their isolated little island? Can they genuinely be so naive as to aver in earnest that exiting the E.U. would render Great Britain once more the place of, per John Major, "long shadows on cricket grounds, warm beer, invincible green suburbs, dog lovers and pools fillers[, ... 'o]ld maids bicycling to holy communion through the morning mist' and [...] Shakespeare [...] read even in school."?
For the record, many of us outsiders would indeed very much prefer Great Britain to exit wholesale. After all, ever since joining, the state has been nothing but an albatross around the Union's neck, retarding its progress and subverting its operations. Great Britain, as an enfant terrible, forever insists on opt-outs from this and rebates from that. As if being the one Trojan horse is insufficient, the country is one of the foremost (possibly the only) advocates of allowing Turkey (yes, Turkey!) to become a full member-state. If that is not proof positive that Great Britain wishes to corrode the E.U. from within, it is hard to imagine what might be.
The legal grounds for a British exit are incontestable. The E.U. treaties are just that, and a country can derogate from or fully withdraw its consent from a treaty at any time. The political repercussions and implications for Great Britain's international reputation (q.v. Guzman's theory of compliance) are another matter, but that is for the British people to ponder.
It is rather transparent the fact that the British society--such as it might be--has not yet reconciled itself to the loss of its empire and to the profound societal changes culminating in what many would describe as a state of anomie, all of which came to pass within two or three generations. Great Britain went from being an imperial power that controlled a fourth of the planet and in which everybody "knew their place" to an island living on past glories, playing second fiddle to the superpowers that be, and having its values diluted by the newly-empowered, irreverent lower "classes" and heterogeneous immigrants alike. That is quite a humiliation and it is natural for one coping mechanism to consist of harking back to yesteryear and latching onto whatever doctrine might be promoted as able to recreate the environment from that bygone era.
However, that will be impossible. The world has irrevocably changed and the notion that a state such as Great Britain (and for how long even that, i.e. before it disintegrates owing to an inevitable future Scottish referendum?) can be more successful alone than as part of a strong commercial and political union is nothing short of utter nonsense. It does boggle the mind though that even many reasonable and educated British people's kneejerk reaction is one of such myopic ignorance and parochialism.
If Great Britain does come to its senses before it is too late, it will undergo the type of radical reform that the Germans subjected themselves to (not necessarily always of own volition) in the aftermath of the Second World War. Germany is today a modern, confident, prosperous, forward-looking state right at the center of the European Union, often "calling the shots" as its distinguished insider. What a contrast to the petulant, snobby, uncooperative Great Britain. It does not need to be that way, but it will have to be a collective British decision.
One thing is certain: The status quo is untenable.
© 2014 Michael L.S.
