The Pragmatic Methodand International Lawin the Fight against Terrorism

Michael M. Lieberman *

ABSTRACT

The inadequacy of the dominant theory of international, positivism, presents an impediment to employing this approach to

e the threat of terrorism. Positivism, which postulates that authorita­binding law can be deduced from fundamental principles, chiefly

te consent, remains wedded to an illusion given the abundance ofence indicating that the law does not actually function in this manner.lisrn, in either its legal or international relations variants, however,s not provide a promising alternative, although it does point the wayards an improvement in emphasizing the need to focus on thetexts in which law actually functions to affect behaviour. Ultimately,gh, it is the philosophical school of pragmatism that offers the most

mising way forward in thinking about international law. Pragmatismot a theory. Rather, it is a method, one which emphasizes that socialtexts ground all behaviour; that behaviour must be viewed in functio­not formal, terms; and that we can comprehend these contextual andctional phenomena only through a prism of instrumentalism, in otherds seeing behaviour as a means towards an end. These tenets applyternational law's role in the struggle against terrorism by emphasiz­the need to adopt an interdisciplinary, empirical approach to under­ding the ways in which formal and informal norms impact State andate action. In doing so, it makes no judgments regarding the value or

cacy of particular policies, believing that they must be assessed on theis of factual investigation, and that such assessments must formbasis for evaluations of international legality. The consequences

a pragmatic approach to international law and the war on terror arescussed in examples that include the development of informal norms by

Associate, International Group, Steptoe & Johnson LLP (United States);., University of California at Berkeley; M.A.L.D., The Fletcher School of

wand Diplomacy.

197PRAGMATIC METIIOD AND tNTERNATIONAL LAW

works, and the appropriate model by which to try suspected terrorists 4,

Humanistic, moral and policy-based critiques have been frequent, butperhaps the most prominent discursive mode bas been one of legality,whereby the practice under attack is seen to violate some apprehensible,established, binding rule of law, such as those contained in treaties andcustom. As a result of such tensions, "[njot since World War Two has thenature and adequacy of international. law provoked such a debate" s

Though it is unclear whether Fr£nck has in mind anything beyond aredrafting of t.reaties in the positivist-inspired internationalist tradition,he is right to believe that international law's new mission must be "tomake it more responsive to the onerous new circumstances in which itmust operate" 6, He is not alone. Security studies scholars also voice thisconcern. Audrey Kurth Cronin, for instance, asserts that throughout thepolicy-making and academic communities, there has been "little creativethinking" about how to undertake a sophisticated, long-term strategyagainst terrorism 7. "Instead, the tendency has been to fall back on estab­lished bureaucratic mind-sets and prevailing theoretical paradigms ..." 8

This is particularly so in international law, a field where "developmentsin legal theory ... fail, as a rule, to be retlected"".

Part of the reason for the inertia seems to be that

"terrorism is considered too policy-oriented an area of research inpolitical science, and it operates in an uncomfortable intersectionbetween disciplines unaccustomed to working together, includingpsychology, sociology, theology, economics, anthropology, history,law, political science, and international relations" J(),

Consequently, as one observer chides, "academe is no more strategic inits understanding of terrorism than is the U.S. government" 11,

This paucity of enquiry is disquieting, since given the transnationalnature of t.he terrorist threat, interstate co-operation - and theories toguide it - are more essential than ever 12. And while theorizing may

4, We can characterize the first four of these as tactical and the last two asoperational or structural. but either way each of these components of thecounter-terrorism regime implicates complex issues of security and freedom.

5. Philippe Sands. "Reasons to Comply", London Rev. Books, 20 July 2006,at p. 17.

6. Franck. supra footnote 2, at p. 688.7. Audrey Kurth Cronin, "Behind the Curve: Globalization and International

Terrorism"• Int'l Sec., Winter 2002·2003, at p. 30.8. Ibid.9. Martti Koskenniemi, "Introduction", International Law (International

Library of Law and Legal Theory), p. xix (Marui Kcskenniemi, ed., 1992).10. Cronin, supra footnote 7, at p. 57.II. Ibid.12. John Deutch, "Terrorism", F01: Pol'y, Fall 1997, at p, 21.

PART! ~ CHAPTER -'

INTRODUCTION

196

SECTION I

The campaign against terrorism is being waged at thefrontier of experience. While previous challenges and threats preparedpolicy-makers and enforcement personnel for the current effort, the multi..faceted nature of the terror threat is unique. Five years after the attacksof 9/l1, the United States and its allies continue to face choices thatrequire balancing both our security and Our values, frequently confront,ing issues that provide few clear policy or legal options. Where the lawsof armed conflict, for instance, developed because States found recipro.cal military and economic benefit in observing restraints on the use ofviolence, for the jihadis and their kind, "terrorism is total war: the endjustifies all means" 1. Squared off against an amorphous, death-enthralledfoe, internationally guaranteed civil rights and humanitarian law appear"obsolete and counterproductive in the face of new realities" 2, even fordefenders of the cosmopolitan spirit such as Thomas Franck. While it istrue, he says, that "inconvenience in law enforcement is the price of th#rule of law", updating our understanding of international law must never­theless form the subject. of a wide-ranging discussion between scholars,government lawyers and policy-makers if we are properly to balance thetensions between our security, liberty and morality 3,

So it is that States have not waited for the formal modes of internatio­nal law to adjust, but instead have forged ahead in the promulgation ofnew codes of conduct, or the abandonment of old ones. To some, the wayforward has proved wayward, undermining both the letter and characterof international law. To others, pushing the envelope on counter-terroristtactics has been crucial to saving innocent civilian life. Of t.he specificissues t.hat have come under scrutiny, several st.and out: targeted killings;extraordinary renditions; coercive interrogations; attacks on t.errorist tar­get.s resulting in civilian casualties; transgovemmental counter-terror net-

transgovernmental networks in the practice of extraordinary rendition,the International Court of Justice's opinion in the Barrier Wall case,the use of coercive interrogations.

1. Elizabeth Chadwick. "It's War, Jim, But Not as We Know It: A 'Reality­Check' for International Law", Crime, Law & Social Change, Aprl 2003 atPp- 233, 235 (internal citations omitted), '

2. ;-hom,ts M: F~,mck,. "Editorial Comment: Criminals, Combatants, orW~~t {. An Exanl1n~llon of the Role of La~ in Responding to the Threat of Tef"~or , 98 A~n. 1. hit I L. 686, ?86. (2004) (discussing due process rights such asfreedom from coerced confession, torture, and proof beyond a reasonabledoubt).

3. Ibid .. at 687.

199PRAGMATIC METHOD AND INTERNATIONAL LAW

19. Sands, "Reasons", supra footnote 5.20. See Koskenniemi, "Introduction", supra footnote 9, at p. xxi.21.. Louis Menand, The Metaphysical Club: A Story o] Ideas in America, p. xi

(2001).22 .. Richard A. Posner, The Problematics of Moral and Legal Theory, p. 228

(1999).23. Judge Posner has been called, among other things, "the wonder of the

legal world", Ronald Dworkin, "Philosophy and Monica Lewinsky", NY Rev.Books, 9 March 2000, at p. 48, and "the leading legal thinker of his generation",Peter Berkowitz, "Reduction and Betrayal", New Republic, 23 August 1999, atp. 38. judge Posner's fame derives in no small part from his promotion of thelaw and economics movement. See, e.g., Richard A. Posner, Law and Eco­nomics (7th ed., 200 I). Posner describes economics as an "instrumental sciencepar excellence". Richard Posner, Overcoming Law, p. 15 (1995). He goes evenfarther when he describes economics as "the most highly developed instrumentalc~ncept of law". Ibid., at p. 403. While Posner possesses great faith in the powerof economics, he sees that it "cannot be the whole content of legal pragmatism"and that it "works well only when there is at least moderate agreement em.ends ...". Ibid., at p. 404.

forma1l:sm that positivist approaches entailed, emphasizing the need forto be responsive to actual observed social conditions and realities.see an analogue of this today in the sub-discipline of international

t~lations known as institutionalism, which sees formal intergovernmental. structures, including international law, as a way to overcome the various

po-operative dilemmas that States face.The second type of realism is not legal, though it also has serious

iinplications for the study of international law. This type of realism islocated in the discipline of international relations (IR realism). IR realismcomes in multiple variants, but may be summarized as the view that theworld of State interaction is one of anarchy, in which unitary, rationalStates jockey for security and power. Where IR realism would seem to

. be a straightforward way to describe the nature of the war on terror 19,

relying on it exclusively as a diagnosis, let alone a prescription, fails to..either explain the complexity of State interaction or the way forward to..... improving it. While there can be no doubt that each type of theory pro­

vides useful insights, cabining our approach to counter-terrorism to anyone of them will leave us little better off?".

The philosophical school of pragmatism offers an antidote to theweaknesses of the above-mentioned approaches. Pragmatism's core is notany particular idea, but rather "an idea about ideas" 21, the central thrustof which is, according to Judge Posner, a "disposition to ground policyjudgments on facts and consequences rather than on conceptualisms andgeneralities'P". Such decisions should also contain, where applicable, theinsights and predictions of other disciplines, such as psychology, socio­

.. logy, organizational science, political science and economics 23. It ishere proffered that while economics and the rest are invaluable tools,

PART I - CHAPTER 5

Such intellectual allegiances permeate the subject of internationalparticular, manifesting themselves chiefly in the forms of positivismrealism.

Positivism, the dominant mode of analysis in internationalgrounds itself in the view that the law consists of a set of social ru"is, or should systematically be studied as if it were, a set of staoriginated exclusively by conventions, commands, or otherfacts" 15, as opposed to metaphysical phenomena rooted in discr~

conceptions of a "natural law" 16.

Realism, as described here, comes in two variants. The first i$realism, which derives from the insights of Justice OliverHolmes, "[tlhe great oracle of American legal thought" 17.

The gist of the legal realist perspective is that

"the point of reference for all things legal . . . shouldconsciously shifted to the area of contact, of interaction,official regulatory behavior and the behavior of thoseaffected by official regulatory behavior" l8.

In this goal, the realists rejected what they viewed

"theory is inescapable; all empirical or practical analysis resit. Pragmatic policyrnakers might think that they need pay noheed to theoretical disputes over the nature of world politicsthey pay to medieval scholastic disputes over how many angeldance on the head of a pin. Academic pens, however, leavein the minds of statesmen with profound results for poli'practical men who believe themselves to be quite exempt frointellectual influences [are actually] unconscious captivconceptions created by 'some academic scribbler of a fewback'." 13

13. Robert O. Keohane and Joseph S. Nye, Power and lnterdepende(2nd ed .. 1989).

14. Siegfried Schieder, "Pragmatism as a Path towards a DiscursiveTheory of International Law", II Ear. .l. Int'l L. 663. 686 (2000). Sarticle appears to be the only other article in the international law Ito explicitly employ the pragmatist framework.

15. John Finnis, "On the Incoherence of Legal Positivism", 75 NotL Rev. 1597,1617 (2000).

16. Ibid.17, Thomas Grey. "Holmes and Legal Pragmatism", 41 Stan. L. Rev,

(1989),18. Karl Llewellyn, "A Realistic Jurisprudence The Next Step",

L. Rev. 431 (930).

198

seem a luxury given the urgency of the matter, Keohane reminds;that

201PRAGMATIC METHOD AND INTERNATIONAL LAW

29. Grey, Holmes and Legal Pragmatism, supra footnote 17, at p. 799.30. See, e.g., Hans Kelsen, Principles of Internationa/. Law 177 (2n(.1 ed.,

Robert W. Tucker, ed., 1966). ("The normative order traditionally called Inter­national law does not contain norms limiting its spheres of vahd~ty,.and insofaras this normative order is considered as a supreme legal order which IS not underany other legal order, the validity of the international legal order cannot belimited in any ~irection.") . -, . ' -, . '. .

31. M. H. FIsch et al., 3 Writmgs of Charles S. Petree: A Chronological Ed,"tion 2566 (1982), cited in Schieder, "Pragmatism", supra footnote 14, at p- 681.

32. James, Pragmatism, supra footnote 27, at Pp- 43-44.33, Ibid" at 45.

Belie'ving in the futility of foundationalism 29, of the sort that remainsal to the positivist a~count30, pragmatism holds that we can under­

eas only by tracing their effects, As Charles Peirce famously wrote

8, we must

"[c]onsider what effects, which might conceivably have practicalbearings, we conceive the object of our conception to have. Then,our conception of these effects is the whole of our conception of the

object." 31

hbwledge and insights, in this view, are valuable only in so far as theyliddress themselves to particular issues, so that absent some objective.'phenomena are not reasonably comprehensible,

Peirce's interlocutor, the phIlosopher WIlham James, relates a tale"olving a trip to the woods he once took with some friends. Returnin~

In a walk alone, James found his friends embroiled in debate, sphtenly on this question: if a squirrel perches on the side of a tree, notible to a person on the other side, and if that person circumambulatestree to catch sight of the critter while the squirrel traverses around the

remaining hidden from view, does the person upon completing a[ution of the tree "go round" the squirrel? James, called on to breakbetween the "yes" and the "no" camps contradicted and vindicatedparties by explaining that there was no real dispute: it dependedwhat was practically meant by "going round" the squirrel. If Itsuccessively occupying each directional pole, in other words beingeast, south and west of the squirrel, then yes, the person went

"'"",,,,,I" it. But if the term implied that the person had been at the squir-front, sides and back, then the answer was no, he or she could not

be said to have "gone around" the squirrelF. James related this fictionaltale to illustrate the larger body of thought to which it led: the

method of "settling metaphysical disputes that otherwisebe interminable ... by tracing its respective practical conse­

Quence:,"33. As a means to its consequentialism, pragmatist thought alsostresses the realities of social life, however they can be ascertained.

CHAPrER 5PART I

the better all-encompassing strategy to follow is that of formalanalysis 24, employing each discipline or theory as necessary andpriate to solve particular problems 2s.

Rather than settle for a rationalist deduction or a pure fudescription in treating issues of concern, pragmatism offers itselfas a "future-oriented instrumen talism that tries to deploy thoughweapon to enable more effective action" 26. This formulation is at Oft

empty set and a comprehensive one. In disavowing reliance on anycular perspective, it embraces the potential of all perspectives, juthem only on their merits in addressing particular problems. Init offers a response to the obvious question of how we can rejectwithout a theory to do so. How, in other words, can pragmatism rreasoning from foundational premises when it itself has its own?answer lies in replacing our predisposition to have a theoreticalaccount with the utility of relying instead on a method", not an abstheory, that serves as a "maxim for human thought and action"::!rejecting as irrelevant the question of ultimate truth.

24. Fo~m~l policy analysis proceeds in at least five, usually iterated. s(l) e,st~~~lshl:,g the yon!cxt, problem or objectives; (2) laying out optipossibilities, including for gathering more information ; (3) predicting tsequenc;cs ~f each option; (4) assessing the likely consequences and balcompeting Interests; (5) making a decision. Edith Stukey and Richardhauser, A Primer for Policy Analysis, pp. 5-6 (1980).

25. This suggestion of course echoes the New Haven School'soriented" jurisprudence that sought to deploy international law in sera "human dignity". ,Myers S. McDougal, "International Law, Power andTowards a Policy-Oriented Jurisprudence", 82 Recueil des cours 133 (1McDougall and Lasswell's contributions in this area are, indeed, preciselytype of effort that the pragmatist method would seek to generate. TheHaven school shares pragmatism's critiques of formalism, as well as its scciSI~ .of the IR realist school's obsession with raw power. Ibid., at pp. 143,Positively, McDougall and Lasswell's contributions strive to both understanlaw's situated ~ature an? its func~ion.ing, as a prerequisite to employing ittfully towards Its end of human dignity. Ibid., at p. 140. While the New H"School's approach is thoroughly pragmatic, the pragmatic method isexhausted by the School's insights. For one thing, a strictly pragmatic metwould not nece.ssarily posit the goal of "human dignity", for internationalhowever attractive that goal might be, but could instead be directed at but 0

a ~u~ber of objectives, inc.Iudin~ more specific programmes such as a justeffective and counter-terrcnst policy. But see Richard Rorty, Contingency, I;~ml. ~olidarity.(l989) (explaining that the pragmatist endeavour comprises

abihty to envisage, and desire to prevent, the actual and possible humiliof others"), quoted in Stanley Fish, "Almost Pragmatism", 57 U. Chi. L.1447, 1465 (1990),

26. C~rnel West, The A.mer~can Evasion of Philosophy: A GenealogyPragmatism, p. 5 (1989) (cited III Posner. Overcoming Law, supra footnote 2at p, 395),

27. William James, Pragmatism: A New Name for Some Old Ways of Thiing, p. 51 (1907). ("It is", James explains, not a theory, but "a method only"

28. Schieder, "Pragmatism", supra footnote 14, at p. 681.

200

203

The Utilitarians

POSITIVISM: AN UNCONVINCINGDOMINANCE

PRAGMATIC METHOD AND INTERNATIONAL LAW

eriority of pragmatism over both positivism and realism. Section 5siders pragmatism's interdisciplinary focus, and analyses how thispective allows us to see that informal n0r.ms promulga:ed by sub­

mental entities can replace, from a functional perspective, the top­n efforts at treaty-making that characterizes so much of internationalThis idea is specifically illustrated by the practice of extraordinary

'ition. Section 6 then Utkes a closer look at the hazards of formalism,taposing this method, championed by some prominent scholars,mst the more promising insights that pragmatism offers. It takes the-rierWall case of the International Court of Justice and the practice of

interrogations as examples in this effort. Section 7 concludes.

35. H. L. A. Hart, "Positivism and the Separation of Law and Morals", 71Harv. L Rev. 593, 604 (hereinafter "Separation of Law") (1958).

36. Richard Rorty, "Introduction: Pragmatism and Philosophy", in Conse­{~f Pragmatism, pp. xiii-xv, cited in Grey, "Holmes and Legal Pragrna­

, supra footnote 17. at P: 793.

We can best understand the relevance of legal pragma­to international law by first locating this school and its variants

thin the broader constellation of legal philosophy. To understand prag-ism's importance, as well as its co-existence with the still-dominant,rvist mode of legal thought, a closer look at the development of posi­

ttVist legal thought is in order. Our look at the evolution of positivismins with the work of the eighteenth-century Utilitarian philosophers

emy Bentham and John Austin, and moves on to positivism's more¢Onte:mIJOrary exponents, Hans Kelsen and H. L. A. Hart.

The Utilitarian philosophers Jeremy Bentham and Johnsaw three propositions at the heart of the positivist viewpoint:

law consists of the commands of the governing sovereign; (ii) whileforces both gave rise to and are shaped by law, what the law is

. "L._ ...L' never be confused with what we think it ought to be; and (iii) thelaw is an "autonomous discipline", and so ought to be distinguished fromrelated ethical, sociological and functional considerations 35.

These forebears had in mind an ambitious social project. The originsof their ambition stemmed from the post-Enlightenment conceptions of"scientific positivism", which posited that "natural science~ facts abouthow spatio-temporal things worked - was all the Truth there was" 36.

CHAPTER 5PART 1

This agnosticism is pragmatism's strength, It allows it tothe most insightful aspects of opposing theories without committito accompanying, but less convincing aspects. As the philosoDewey recognized, "there are different logics in use" and each uof a particular theory or methodology must be judged in light of itsted aims?". A pragmatist approach, as a result, seeks to shift thefrom discussions of what international law docs or not pu"require" to what it does, will and can do in the affairs of the worlmatism thus invites any and all relevant disciplines to contrianswering the pertinent tactical and moral questions raised by the sof terror.

This chapter has several purposes: (I) to suggest that the philcsoschool of pragmatism, as of now scarcely recognized as useful tq.;national law, in fact heralds great promise for channelling debatefrom positivist justification based on hidden political preferenctowards more empirically based assessments of benefits, costs, risksVtrade-offs that underlie the values the law is intended to promote; (connect the upsurge of literature in international law/international .tions to the legal pragmatist movement in American domestic lawway to place the lRiIL collaboration in a larger philosophical contexincludes not just theories of international law, but also revolutiinnovations in philosophy and legal theory; and (3) to explore howinsights relate to key issues arising in the war on terror in both thestantive and procedural domains, affecting the evaluation of partiesubstantive counter-terror tactics.

In its effort to do so, this chapter proceeds in the following mSection 2 outlines the primary tenets of positivism, tracing the appfrom the Utilitarian philosophers Jeremy Bentham and John Austin tl)later exponents Hans Kelsen and H. L A. Hart. It then describes poWvism's inadequacy as a theory to understand international law amiimpact on State behaviour. Section 3 then turns to the developmentlegal realism, which emphasizes the contextual and functional aspectslaw rather than abstract notions of authoritativeness and bindingness';doing so it compares the thought of Justice Holmes and the great intnational relations realist Hans Morgenthau, and suggests why Holmepragmatism provides a richer vein for the analysis of terrorism and innational law than does Morgenthau's realism. Section 4 then discusthe philosophy of pragmatism more thoroughly, and elaborates on

34. John Dewey, "Logical Method and the Law", 10 Cornell LQ 17, 2(I 924). The international relations scholar John Ruggie echoes Dewey whenwrites, "[n]o approach can sustain claims to a monopoly on truth - or evenuseful insights". John Gerard Ruggie, "What Makes the World Hang TogetherNeo-Utilitarianism and the Social Contract". 52 lnt'l Org. 855,882.

202

205PRAGMATIC METHOD AND INTERNATIONAL LAW

44. Hart, "Separation of Law", supra footnote 35, at p. 607.45. H. L. A. Hart. The Concept of Law, p. 82 (2nd ed., 1997).46. Scott J. Shapiro, "The Bad Man and the Internal Point of View". in The

Path of the Law and Its Influence, pp. 197,200 (Steven J. Burton. ed., 2000).47. Hart, Concept, supra footnote 45, at pp. 92-96.48. lbid., at pp. 89-96,49. Ibid.50. Ibid., at p. 225.

roanded commanders of society, . ," 44. Such a view of law, Hart believed,provided that the law of the highwayman - an order backed by threat ­constituted a legally binding obligation, a conclusion he rejected 45.

Before Hart, every major figure in the legal positivist tradition backed asanction-centred theory of law 46. But for something to be law, Hartargued, there had to be something more. Hart found his answer In dicho­tomizing binding law into an intertwined phenomenon of primary andsecondary rules. Primary rules are th6se that govern conduct directly, forexample "thou shalt not murder". Primitive legal systems according toHart consist only of such laws: rules exist in a set of discrete, stand-aloneinjunctions rather than derive from a system governing rule-creation andadministration. So, for instance, a rule proscribing murder in a primitivesociety would be a rule unto itself, derived from custom and instrumentalfactors, without necessarily locating it in another source of authority,such as promulgation by an accepted rule-maker. Such primitive systemssuffer from uncertainty, rigidity and inefficiency because there are nostandards governing critical issues such as what is recognized as binding,how the substance of that recognition can change, and how the adjudica­tion of the primary rules shall occur".

These "rules" differ from the "command" of the sovereign in that eachof them commands some degree of fealty from its subject above andbeyond the potential sanction for breach 48. It is the perceived authorityof the rule-makers that distinguishes a sophisticated legal system ofsecondary and primary rules, in Hart's conception, from the coerciveorder backed solely by force 49.

International law, according to Hart, was a primitive system, as itgenerally lacked all three types of rules (recognition, change, adjudica­tion). Still, however, it remained "law" because

"what is necessary and sufficient, in order that the words of apromise, agreement, or treaty should give rise to obligations, isthat rules providing for this and specifying a procedure for theseself-binding operations should be generally, though they need notbe universally. acknowledged" 50.

Hart saw that for both primary and secondary rules, as well as in interna-

CHAPTER 5PART I

KeIsen

Kelsens contemporary H. L. A. Hart alsois/ought distinction in the law in the moral sensef', and accepted the Atinian version of law as a means of social control. He rejected, howeyAustin's view that law is no more than "the command of the unco

37. Rorty, op. cit. footnote 36, at p. 794.38. Ibid., at p. 829. .39. James Bernard Murphy, The Philosophy of Positive Law: Foundations

Jurisprudence. p. 215 (2005).. .'40. Intemationallaw, Kelsen wrote, IS a "system of norms WhICh prescribe

permit a certain conduct for states", Kelsen, supra footnote 30, at p. 17.41. Ibid., at p. 16 (emphasis added). .42. Ibid., at p. 6. .43. Hart did soften the distinction a bit, however, in recognizing that wh

facing ambizuous applicable law - "problems of the penumbra" - the jushould try t~ enunciate a "sound" decision. even if it cannot be reacheddeduction. Hart, "Separation of Law", supra footnote 35. at p. 605.

Kelsen, writing of a "Pure Theory of Law" retainedUtilitarians' value-neutral is/ought distinction, but charted a new coin identifying the origin of positive law as one ultimately stemming fthe validity of single master norm. This norm consisted, simply, 0

notion of a "legal order", unto itse1f 39 . Functional explanations suepsychological motives and sociopolitical causation were considered ilevant, as the exclusive validity of the ultimate norm itself was allwas required for the law's validity. Politics, though determinant 0

content and interpretation of the law, was nonetheless a sphere onlygentially related to the law as an objective, posited order t", such .....•."under certain conditions a certain act of coercion ought to be pformed" 4J. That coercion does or does not occur in a given case i~

no legal consequence, Kelsen held, because "the specific 'existeof a norm consists entirely in its validity, and the validity of a notprescribing or permitting a definite conduct is not affectedcontrary conduct" 42. Consequences remained outside Kelson's equatio

Paragraph 3 Hart

Paragraph 2

Importantly, scientific positivism viewed the law as a programmesocial betterment - in Bentham's view "the use of collective forcemeans to human happiness" 37. Bentham's distinction between lawnorms rested on his view that legal rights and duties consisted of clbacked by sanctions. Mere norms had no such enforcement mechanislaying claim [0 little more than sentiment 38.

204

207PRAGMATIC METHODAND INTERNATIONAL LAW

As a result it seems as true today as it did in 1940 when Morgenthauthat an excessive amount of intellectual resources

"is going to the articulation and elaboration of abstract normativetheories [i.e. positivism] and too small a one to the developmentand application of social scientific theories and to the collection of

Onuma Yasuaki, "International Law in and with International Politics;Functions of International Law in International Society", 14 Eur. J. Int'l L

60, Schieder, "Pragmatism", supra footnote 14, at P. 686.61. Ibid., at p. 667. For examples of this mode of reasoning, see, e.g., JamesR, Nafziger, "The Grave New World of Terrorism: A Lawyer's View", in Lawthe War on International Terrorism, pp. 55, 73 (Ved P. Nanda, ed., 20~5)

""""",,. is a] woefully inadequate framework of international law f(~r dealingthe threat of terrorism. In improving that framework and developing a new

of authority, several questions 100m large: How far does the scope ofself-defense extend under article 51 of the UN Charter? for example, does art.

anticipatory measures against non-state actors? What exactly i~ ~heof UN Security Councilor of the General Assembly under the Uniting

for Peace Resolution. after a unilateral act of self-defense'! Can the UN Char-'s prohibition on the use of force and the principle of non-intervention be.rec-

with the humanitarian principle of intervention to restore or InS~ltute

democratic institutions in the face of terrorism 7"); Yves Daudet, "InternationalAction against State Terrorism", in Terrorism and International Law, pp..201,213 (Rosalyn Higgins, ed., 1997) ("!n order that they conform to internationallaw many of these [illegal] counter-actions should be taken to the UN; thiswould guarantee their legality and provide a hope of their being effective") ; M.Cherif Bassicuni, "The Regression of the Rule of Law under the Guise of Com­bating Terrorism, in New Developments: Increased Cooperation between LawEnforcement and Intelligence Agencies after September 11,2001",76 Revueinternationale de droit penal 17, at p. 21 (t'the opportunity to advance interna­tional criminal law and international criminal justice as a whole is lost. withshifting the focus away from the building and strengthening of permanent Inter­national institutions, such as the International Criminal Court, and permanentmodalities of international cooperation of modalities of international coopera­tion in penal matters to the narrower tactical aspects of enhancing cooperationto combat terrorism"); Christopher Greenwood, "International Law and the'War on Terror' ''. 78 lnr't Ai]: 30! (2002) (passim).

or independence of law from politics, [its] treatment or analysis ofnoliti,ca: problems is almost always arbitrary and insufficient" 59.

positivist tradition's deficiencies lie in large part in the danger, fre­v realized, of a vacuous and abstract formalism, divorced from the

ties to which it is addressed. It remains rooted in fixed principles,flililulg agamst indeterminacy by proceeding under a formalist, rationalist

that results in obscuring the actnal functions and conse­au.ences of international law 60. The exposition of this mode of thought,oostulating first principles from which to reason to the binding moral pre­

of universal law, which the operating law on earth ought to reflect,continw:s to serve as the implicit framework of international law discus-

PART '1 ~~ CHAPTER 5

Positivism's PovertyParagraph 4

tiona} law, social acceptance of the rule at work constituted thetest of validity 51. Obligation, then, arises not from consent alatraditional basis for international legality, bnt from a posited orlaw stemming from States' actual practice",

Stemming from this belief was Hart's view that when "preblepenumbra" are encountered in applying readings of practice to fthe law as posited provides no reliable grounds for decision, judrely on grounds of what "ought" to be the rule", But judges, he hecan get there only by "stepping outside the law" 54, as if to do somalien to its essence. As discussed below, this perspective creates aartificial dividing line between the law and actual experience.mining both tbe functional understandings and normative potent]the law,

Positivism, as we have seen, directs practitiosuch as judges, diplomats, academics, and advocates - "to staterules of international law are, and to do this accurately and objecwithout choosing among non-legal values, such as moral, social aridtical values ..." 55.

According to positivist tenets, even in a world lacking any coexperience of such values, the States' body of subjective ideas andwill be harmonized via the universal structure of a value-neutruniversally accepted system of law, and "be recognized as a valid'.applicable law in all countries, whatever their economic, socio-polior religious histories or traditions" 56.

After all, "from the viewpoint of positivism there is ... only the anative between internationally lawful or internationally unlaaction" 57. Rather than viewing the law as a means to political or sends, positivism's hallmark modus is to view the law as a set of "jurirelationships ... that goes beyond the physical, the positive, the histcal, or the sociological" 58. Because positivism in this way "assertjs] se

51. Hart, Concept, supra footnote 45, at p. 108.52. Ibid., at p. 225.53. lbid., at p. 94.54. lbid., at p- 102 (emphasis added).55. Hedley Bull, The Anarchical Society: A Study of Order in World

pp. 149-150(1977).56. Quoted in Kcskenniemi, "Introduction", supra footnote 9, at p. xxv.57. Schieder, supra footnote 14, at p- 692.58. Ernest Weinrib, "Legal Formalism: On the Immanent Rationality 0

Law",97 Yale Lf 949 (1988).

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209PRAGMATIC METHOD AND INTERNATIONAL LAW

70. Glennon. "Rules Die", supra footnote 69 (quoting J. L. Brierly, The LawofNations: An Introduction to the International Law of Peace, p. 53 (HumphreyWaldeck. ed., 6th ed., 1963),

71. Glennon, "Rules Die", supra footnote 69, at p. 945. ("A positive rulemust therefore rely for its validity upon something more than another positiverule. Legal rules must, in the received understanding, rest upon a naturalistrationale of posited obligation- a seeming contradiction in terms.")

72. Morgenthau, "Positivism", supra footnote 62, at p. 264. See also, e.g.,Philip Trimble, "International Law, World Order and Critical Legal Studies", 42Stan. L. Rev. 811, 813 ("For most of the twentieth century much of the scholarlyoutput has been bound in 'European doctrinal formalism''') (internal citationsomitted).

73. Oliver Wendell Holmes, The Common Law, p. 173 (M. Howe, ed., 1963).

,.,..., •...,'1'T(')1'J 3 FROM REALISM to PRAGMATISM

comes to an end" 70. For in harkening back to itself as a "pure" legalptder or as an ultimate end, it reoccupies the very ground of natural lawdiat it had ostensibly repudiated 71,

. his unsatisfactory circularity gave rise to the turn towards legalism, originating with US Supreme Court Justice Oliver Wendell

es. The law, the realists held, could not be viewed as some posited,order operating directly to judge human endeavour. Rather,

both highly contextual and eminently malleable, both reflective ofresponsive to extant and shifting social conditions.

For so long has the international arena remained domi­....,lltf~d by the discourse of positivism that it is almost as true today as it

when Hans Morgenthau wrote in 1940 that no competing theory "hasable to affect the predominance of positivist thought over the

science of international law" 72. That it is only almost as true is evidencethe developments in legal theory that have impacted the study and

practice of law in general, including. if belatedly, international law. Oneof the most profound innovations in legal thought is the transitiontowards legal realism inspired by the famed US Supreme Court JusticeOliver Wendell Holmes. Holmes laid the foundation for the legal realists'response to formalistic positivism in his insight that

"the actual life of the law has not been logic: it has beenexperience. The felt necessities of the times, the prevalent moraland political theories, intuitions of public policy, avowed or uncon­scious, even the prejudices which judges share with their fellow­man, have had a good deal more to do than the syllogism in deter­mining the rules by which men should be governed." 71

Though "the logical method and form flatter that longing for certainty

PART I - CHAPTER 5208

data about how the legal system actually operates and witcosts and other consequences'tv-,

. This imbalan~e result~ because the method of calculating acd:pIS constructed via an arbitrary and opaque deductionism 63. In intnal law, positivism sidesteps the question of the causal or conmeans by which adherence to such a rule comes about, not to mendrule's effects, instead resting its ground for validity on yet another,~dary rule, namely the grundnorm of obligation to a rule laid dotreaty or custom arising from prior State consent.

The formulaic tendency in positivism "postulates that law is tgible as ~n int~rna.lly coherent phenomenon", self-referentially jwithout illumination from any external source, from which caextracted an apolitical, objective truth 64. It is "not so much an illment i? the service of foreign ideals as an end in itself constituting,were, Its own ideal"65. The "positivist judge", Posner writes, "is upto question his premises" 66, and so limits his or her enquiry to asbasket of legal considerations pondered without regard to ernpi 'supportable propositions as to the decision's future consequene~his ,treatment of law seeks to retain the field's autonomy, keepifree trorn the influence of interdisciplinary contaminants. As discusbelow, the judgments of the IeJ provide preeminent examplesthese formalist methodologies 68. ,•••••

When positivists argue on the basis of these traditional sources'international law, not only do the doctrinal arguments tend to reflectsonalized preferences, but the choice of legitimating rationale doeswell. As Glennon writes, positivism's rationalist structure "presuppoan a priori obligation to obey the rule requiring compliance, forinfinite regr~~s is created if the rationale for compliance consists onlyanother posiuve rule requiring compliance with the antecedent rule"Quoting Brierly, he continues, "[a] consistently consensual theory,would have to admit that if consent is withdrawn, the obligation creat

62. Hans. J. Morgenthau, "Positivism, Functionalism, and Internation!ilLaw", 34Am. .T. Int'l L. 260. 265 (1940). .'

6~. ~art, COfl~'ept ofLaw, supra footnote 45; Grey, "Holmes and Legal Prag-matism , supra footnote 17, at p.822.(

64. Weinrib, supra footnote 58, at p. 100 I. .65. Ibid.66. Posner, Problematics, supra footnote 22, at p. 264.67. Ibid68. Morgenthau, supra footnote 62, at p. 264 (referring to the Permanent

~ourt of I~1te:~atJonalJustice, the curren.t..Court's predecessor); Koskennierni,Introduction .supra footnote 9, at p. XVlU.

69. Michael J, Glennon, "How International Law Rules Die" 93 Geo U 939945 (2005). ' ..,

211PRAGMArIC METHOD AND INT8RNATIONAL LAW

·7~-·S·~~~;;;·preoccupation with power and security is frequently said to. arisefrom the "security dilemma" resulting from States' inability to know the inten­tions and capabilities of other States. See Robert Jervis, "Co-operation under theSecurity Dilemma", World Politics, January 1978, at p. 167.

80. See text accompanying footnotes 152-181.81. Morgenthau, supra footnote 62, at p. 269.82. Ibid., at pp. 273-274.83. tu«. at p. 276.84. Ibid.85. Ibid.. at 274 n. 42, p. 283.86. Ibid. (condemning "the utter futility of all attempts to reform human con­

ditions on the basis of idealistic assumptions without knowing the laws underwhich these conditions stand").

87. Ibid.

maximizing States 79 - does not. as liberal theories of international rela­tions tell us, capture the full complexity or potential of State interaction

and co-operation 80.

By precluding sociological facts from consideration, even when theyplainly are at odds with or are not intelligible under the rul~, Morgenthaubelieved, the "positivist concept of the normative sphere Itself reveals ametaphysical attitude, a kind of negative metaphysics which plainlycontradicts the very assumptions of a positive science" based on objectiveobservation Sl. To this view of law Morgenthau opposed his "functional"

jurisprudeuce 82 . ' .What counted for him was an understanding of the international sys-

tem and the way States behave within it. in other words a sociologicalun,ierstanding of relationships and normative functions 83 Lacking thisknowledge, "the general attitude of the internationalists [is] to take theappropriateness of the devices for granted and to blame the fac,ts for thefailure" 84. Little. we often see, has changed smce Morgenthau s time inthis respect. .

Morgenthau's functionalism, however, limits itself to description. Hedenied that international legal theory was as yet adequate to the task ofinstrumentalism, as its counterpart in legal realism was seen in thedomestic sphere. Without first knowing the conditions and mechanismsby which States mteroperate, Morgenthau believed, instrumentalistnotions would be condemned to "utter futility" 85

These views do not result from the cynicism with which Morgenthauoften charged, but follow from his belief that "international law is

in a retarded stage of scientific development" 86 While Morgenthau didnot completely deny the possibility that international law could indepen­dently influence State behaviour, and thus held open the door, one day,for instrumentalism, neither scholars, practitioners nor States ought todelude themselves that international law could be a force for co-operationuntil a more complete understanding had been achieved 87 .

CHAPTER 5PART I

From Holmes to Morgenthau to Holmes

74. Oliver Wendell Holmes, "The Path of the Law", reprinted in 110Rev. 991,998 (1996-1997).

75. Martti Koskenniemi. The Gentle Civilizer of Nations: The Rise andoflruemational Law i870~1960, p. 465 (2000)..

76. Morgenthau, "Positivism". supra footnote 62, at p. 260.77. Ibid.78. Ibtd., at p. 262. He did, however, recognize certain contributions of

tivism : it settled the question of the metaphysicism of law by soundly rejit; it proffered that objectivity could be gleaned only from cognizable cband was a method aimed not at judgment, but at knowledge; and that itvaluable technique for nonnative reification, which was useful so long asadequately met the political, ethical and socioeconomic expectations of asociety at a particular moment in history. See ibid.

Morgenthau, one of the "most influential ofgee intellectuals" in American political theory 75. embracedrealist spirit in the international realm. especially its contextualifunctionalism and its rejection of positive law as an independentminant of behaviour. Initially a student of internarional lawMorgesoon abandoned that field for international relations, where he beesprogenitor, along with E. H. Carr, of the school of international reirealism, finding the law an arid field for understanding howbehave.

Morgenthau propounded the basis for his discontent in hisrique, "Positivism, Functionalism, and International Law" 76. Ingenthau savaged positivist theorists in the international spheresame lines as discussed above, likening them to "the sorcerers oftive ages, [who] attempt to exorcise social evils by the indefatigabletition of magic formulae" Ti. He accused them of "system worshidogmatic conceptualism" for believing that disputed questionsnational law could ever be free from ethical, sociological andgical influences via deductive, a priori reasoning 7B.

Morgenthau's critique of positivism in the international spherevides us with a compelling argument for the necessity of his functionperspective, even if his brand of IR realism - postulating aninnately conflictual world of unitary, rational, cost-sensitive and

Paragraph I

and repose which is in every human mind", he warned, "certaintyerally is illusion, and repose is not the destiny of man"?".

Holmes's experiential conception of the law paved the way fdevelopment of Legal Realism, which emphasized the socially emand contextual nature of the law as it actually operated in theits subjects, not as it could be extrapolated and deduced from fauthorities.

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213PRAGMATIC METHOD AND INTERNXDONAL LAW

91. Grey, "Holmes and Legal Pragmatism", supra footnote 17, passim.92. Ibid., at p. 819.93. Ibid.94. Grey, "Holmes on the Logic of the Law", in The Path of the Law and Its

Influence, supra footnote 46, at p. 137 ~ See also Grey, "Holmes and Legal Prag­matism", supra footnote 17, at p. 806; Grant Gilmore, The Death of Contract,

14-53 (2nd ed., 1995) (quoting Holmes 'hat the goal of his The Commonwas "to make known the content of the law; that is, to work upon it from

or logically, arranging and distributing it, in order, from its summumgenus to its infima species, so far as practicable", citing Oliver Wendell Holmes,The Common Law, p. 173 (M. Howe, ed., 1963).

95. See, e.g., Greg Myre, "Offering Video, Israel Answers Critics on War",Times, 5 December 2006, at p. A5.

receptiveness, even embrace, of formal, case-law driven conceptualiza­tion 91, which in the international sphere we can liken to principles.doctrine and rules drawn from treaty and custom.

In contrast to the formalist positivists, against whom the Holmes­inspired legal realists, including Morgenthau, had fired so many asalvo 92, Holmes himself did not consider the doctrines extracted fromreading the common law as binding in any authoritative sense. Insteadhe thought them "to be guidelines, rules of thumb, instruments of inquirydesigned as practical aids to making sound decisions" 93. Holmes's appre­ciation for such conceptualism also-followed from a default position thatlegal matters should be assessed on the basis of a clear set of rules,in service of two fundamental policies that the law helps achieve:predictability and satisfaction of collective desires 94

Holmes's pragmatism suggests that custom. treaties and formal insti­tutions may provide practical areas for study and analysis in assessinghow co-operation may best be generated to suppress terrorism-relatedactivities. Moreover. the elaborate conceptual edifices of internationalhumanitarian law and human rights law, including their articulation ofvalues of human dignity and their attempts to balance various counter­vailing interests, such as the safety of civilians and the requirementsof military operations, themselves are important focal points for normcreation and development. Witness, for instance, the concurrent appealsboth Israel and the Lebanese Shiite group Hezbollah made to the inter­national community in their 2006 conflict with respect to their adherence

of international humanitarian law in not targeting civilians 95.

Ultimately. Morgenthau's functionalism is vital to Holmes's pragma­But it does not rival it for the purpose of crafting superior interna­law responses to terrorism. This is because in eschewing instru­

mentalism it does not envision a wide enough scope of study for law toany effect. By limiting its application to areas in wbich States are

predisposed to co-operate by reasons of interest or power, Morgenthauunduly little credence to its independent causal power. In doing so

PART r - CHAPTER 5

Holmes's Realistic PragmatismParagraph 2

Justice Holmes, tbough barely toucbing on the subject of mternallaw, would likely have shared Morgenthau's scepticism of instrunIism in the international sphere 88. Yet in true pragmatist faswould not have been so quick to reject international law's potenthis is so is suggested by the fact that despite his realism, Holmesshut the door to the utility of positivist conceptualization, instead ohis mind to its possible functions and benefits. This, in the end,i~,

separates Morgenthau's diagnostic form of legal and IR realismHolmes's evolution towards pragmatism. From Holmes's more expvision, we can see that despite its failings as the predominant mdiscourse, the traditional, formal modes of international law _ .potentialities with respect to the war on terror - ought not bedismissed. It is to a closer look at Holmes's pragmatism thating section addresses itself.

Given the starkly different worlds inoperated, it could well be that Morgenthau would have adopted aconciliatory view towards instrumentalism had he been, like HoIobserver of the domestic sphere where sovereign authorityinstead of "the international field [where] the authoritative decireplaced by the free interplay of political and military forces" 8~.

Morgenthau's application of realism to the international sphere,bis legal and IR variants, add much to our understanding, he still,Holmes, unduly discounts the potential of positivist conceptualizaof the sort that could be derived from studies of treaties and custom,

Where Morgenthau found the creation and explication of treatiescustom by States and scbolars largely detached from the reality ofbehaviour, Holmes would not have been so quick to dismiss the v'these sources as informative of state decision-making, whether dior indirectly. Because of their shared emphasis on functionalism,even in the end some similarities with respect to instrumentalism,this distinction that places Holmes in the pragmatist camp while leaMorgenthau's thoughts on international law confined to a descriprealism 90, Indeed, Holmes's pragmatism comes distinctively from

88, Grey, "Holmes and Legal Pragmatism", supra footnote 17, at pp- 798-89. Morgenthau, "Positivism", supra footnote 62, at p. 275.90. When we consider Morgenthau's international relations realism wi

stark an~ limited view of State co-operation, the divide becomes wider still,pragmatist thought w0i.!-ld eschew any such theoretical straitjacketing aconvmctng empirical evidence of the sort that IR realism, to this has notmanaged to provide. See, e.g., Jeffrey W. Legro and Andrew Moravcsik,Anybody Still a Realist?", Int'[ Security, Fall 1999,

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215PRAGMATIC METHOD AND INTERNATIONAL LAW

Of course, international legal decisions are often said to lack the bindingpower of stare decisis. Article 59 of the Statute of the ICJ, for instance, makesclear that "the decision of the Court has no binding force except between theparties and in respect of that particular case". Statute of the International CourtOfJustice, Art. 59. See also, e.g., Morgenthau, Politics, supra footnote 96, atpp.309-31O.

105. Alexander Wendt, "Driving with the Rearview Mirror: On the RationalScience of Institutional Design", 55/nt'l Org. 1019,1022 (2001).

101. Matthew Kramer describes three primary modes of pragmatism. Thet'irst is metaphysical or philosophical pragmatism, which rejects essentialistfoundations. The second is methodological or intellectual pragmatism, whichemphasizes the importance of a marketplace of ideas in all aspects of humanendeavour. The third is political pragmatism, which celebrates civil liberties andtolerance, and innovational experimentation in structuring social institutions.None of these modes necessarily entails the other. Matthew H. Kramer, "ThePhilosopher-Judge: Some Friendly Criticisms of Richard Posner's Jurispru­dence", 59 Mod. L Rev. 465,475-478 (1996).

102. Grey, "Holmes and Legal Pragmatism", supra footnote 17, at p. 806.103. Posner, Overcoming Law, supra footnote 23, at p, 242 (emphasis in ori-

The grundnorm of international law - State consent itself creatingiallObligation - cannot justifiably in theory, nor obviously in practice,1)etf exempt 104. In the absence of an ultimate, foundational norm, no¢6rtstruct, not even the primary positivist sources of international law, canclaim a non-arbitrary supremacy. Treaties and custom, indeed the whole

. notion of State consent giving way to binding obligation, must also provetheir worth. As Alexander Wendt observes, "[klnowing why we acted inthe past can teach us valuable lessons, but unless the social universe isdeterministic, the past is only contingently related to the future" lOS.

For this reason pragmatism speaks of optimality more than it doestigality. The formal sources of international law provide an immensebody of explicit or possible implicit agreements, reflecting the judg­ments, expectations, co-ordinates and modalities of State interaction and

••. policy co-ordination. They are, to use Posner's appropriation of Holmes's

tiveness towards the agreed-upon goal - and allows it to be of useacross the range of disciplines 101.

In addition to its anti-essentialism, pragmatism's fusion of instrumen­'tIllism and contextualisrn comprises another key trait of the method, com­

': hining two approaches that traditional philosophical schools held to be. incompatible 102. Pragmatism's instrumentalism extends to precedent,i induding prior agreement, that it sees as but one input among many.

"[Pjragmatist judges always try to do the best they can do forthe present and the future, unchecked by any felt duty to secureconsistency in principle with what other officials have done in thepast." 103

PART I - CHAPTER 5

LEGAL PRAGMATISM: A BRIEF OVERVIESECTION 4

As we have seen, pragmatism holds that all investions must be guided by an explicit purpose. Yet pragmatism can sayabout ends 99. Those must be supplied by other sources. Nevertheless,can hazard the notion that among reasonable observers, there is a gsense that the war on terror cannot be waged with the equivaleterror, and that our interest in retaining our own lives and limbsbe balanced against our interest in maintaining our commitmemodem, liberal values. Indeed, these interests may often be mureinforcing. It is, of course, the precise line-drawing that is the crudebate.

Pragmatism's anti-essentialist receptivity allows it to assist in reduthis grey area of controversy, paving the way for greater conseon bow to strike the proper balance between competing interestswidening the scope of the "objective" analysis. As Posner explains,

"<objective.' does not mean corresponding to the way things reare; no one knows the way things really are. It means capablecommanding agreement among all members of a group subscribito common principles." 100

Pragmatism's agnosticism results in a willingness to embrace varitheories - backed only by the criterion of practical, contextual

96. Hans J. Morgenthau, Politics among Nations, p. 296 (5th ed., 1972).97. See generally Robert O. Keohane, After Hegemony.' The Future of Inte

national Cooperation (1984).98. As Judge Posner has it, "[iJt begins to seem as if the greatest value

pragmatism lies in preventing the premature closure of issues rather than in aally resolving them". Overcoming Law, supra footnote 23, at p. 397.

99. Ibid" at p. 403.100. Ibid., at p. 18 (emphasis in original).

he also rejects the utility of conceptual analyses to shed light onbehaviour. By contrast, Holmes's pragmatic inclination instructseven international law can reflect far more than Morgenthau's nsense of law as reflecting "identical or complementary interests ofvidual states and the distribution of power among them" 96. Rather, itin fact be independently effective in generating co-operationwithout it - or its functional equivalent - more beneficial behavwould not occur 97. At the very least, pragmatism keeps the door ainvestigation. And in formulating appropriate responses to the scouterror, no investigation ought to be foreclosed 98. A deeper look aaxioms of this philosophical method, and how the method aidsenquiry, forms the basis of the next section.

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217PRAGMATIC METHOD AND INTERNATIONAL LAW

from Posner that "for the study of consequences, doctrinal analysis isuseless" 114, a pragmatist approach would employ a policy-oriented,empiricist take towards matters of international law, In "nudging aca­demic law a little closer to social science, and the judicial game a littlecloser to the scientific game", the pragmatic method can illuminate morecommon ground for exploration than can positivism, whose purportedlyobjective dednctionism provides ample ground for virtually any conclu­sion '!". While it is true that policy debates may be nearly as contestableas legal ones, empirical data - unlike formalism .- can more readilylead to compromise and agreement as the actual trade-offs at hand areidentified and explicitly brought/into the picture, Absent a vigorousenqniry into "objectively" determinable facts, the debate over the properscope of international obligation in a given situation is, like in moraltheory, "interminable because it is indeterminate" 116.

In the global struggle against terrorism such dissensus is untenable.When States disagree on who is a terrorist, what constitutes a terroristact, or what to do with terrorist suspects or related information, seriousconflicts result, conflicts that conld conceivably cost lives. Where, forinstance, the United States sees extraordinary rendition as an appropriatemeans of incapacitating terror suspects and gathering intelligence, manyof its allied Governments in Europe (if not all their sub-components)have adopted a qnite different position II'. The conflict between the Euro­pean Union's privacy ombudsman and the United States relating to finan­cial transactions brokered by the Society for Worldwide Information onFinancial Transactions (SWIl'i), in which the ombndsman accusedSWIFT of violating EU privacy regulations, is another case in point I I'.

Snch debates are, indeed, a matter of line-drawing, bnt positivistformalism cannot inform this effort alone. To make progress towardsidentifying the actual functions of international law, and how it operatesto affect behaviour, we must draw from the empirical discoveries of otherdisciplines. Naturally, the rich vein of work in international relationstheory lends itself well to this task 119, It is to the importance of this joint

114. Posner, Problematics, supra footnote 22, at p. 237.115. Cited in Posner, Problematics, supra footnote 22, at p. 252.116. lbid., at p. 53,117. See, e.g., European Parliament resolution on the alleged use of European

countries by the CIA for the transportation and illegal detention of prisoners,adopted midway through the work. of the Temporary Committee (2006/2027(1NI), available at http://www.europarl.europa.eu/comparlltempcomltdip/defaultjen.htm, then follow "Activities",

118, See, e.g, Dan Hilefsky and Eric Lichtblau, "Swiss Official Says BanksBroke Law by Supplying Data to US", NY Times, 15 December 2006.

119. See, e.g., Kenneth Abbott, "Modern International Relations Theory: AProspectus for International Lawyers", 14 Yale J. Int'I L. 335 (1989); Anne­Marie Slaughter, "International Law and International Relations", 92 Am. J.

PART I ~- CHAPTER 5

106, Posner, Problematics, supra footnote 22, at P. 242.107. Ibid. (emphasis added),108. Morgenthau, "Positivism", supra footnote 62, at p. 269.109. Schieder, "Pragmatism", supra footnote 14, at p. 686.110. Andrew C. Wicks and R. Edward Freeman, "Organizational Science

the New Pragmatism", Org. Science, March-April 1998, at p- 127, TheyTolstoy, in words that go beyond any pragmatist's, but which nonethresonate: "Science is meaningless because it gives no answer to ourthe only question important for us: 'What shall we do and how shall we

Ill. Grey, "Holmes and Legal Pragmatism", supra footnote 17, at p.112. Menand, Metaphysical Club, supra footnote 21, at p. xii.113, Dewey, "The Logical Method", supra footnote 34, at P. 27,

insight, "repositories of knowledge. even, sometimes, of wisdom;would be folly to ignore them even if they had no authoritative signicance" !O6.

Still, the pragmatist judge sees legal authorities "merely as sourcesinformation and as limited constraints on his freedom of decision.Taso] does not depend on them to supply the rule of decision for thenovel case" un. Because novel cases are the norm, not the exception ininternational order 108, the authority of a State's past treaty obligationof custom ought not to be a dispositive constraint if the particularsmatter merit a different outcome, taking into account the multivaripotential repercussions of the decision. Rules of decision, in other woshould be geared directly towards the circumstances, informed by ext'formal provisions, but not controlled by the "dead hand" of the past.

Complementing this instrumentalist tenet is an insistence on a comhensive contextualism that goes beyond the law to employ different 4iplines as needed in making a sound decision, In doing so, pragrejects cabining legal analysis to the terms of formal legal sou"Autonomous reason", Schieder explains, "seeking to be its own fountion becomes reflexive or self-referential and ends" ..,.- like positivism"in an irresolable endless circle." 109 The pragmatist agenda sees:interdisciplinarity does not subordinate law to science, but seesscience is simply "another vehicle for interpreting the world and immenting human purposes, not for obscuring or defining them" llO. Wthe subjects of human activity implicate both science and law, then,vital to undertake a holistic perspective, Because the law is "a meachieving socially desired ends, and available to be adapted to tservice" 111, the value of ideas "depends not on their immutability",instead "on their adaptability" 1l2.

These contextual and instrumental aspects of pragmatism reinfoone another. In seeing the law as a tool "to be adapted to the conditiin which they are employed rather than as absolnte and intrinsic '1\ciples', ... attention will go to the facts of social life" 113, Taking ac

216

219PRAGMNrIC ME1110D AND INTERNATIONAL LAW

~ork for understanding interstate co-operation on counter-terrorism 122.

though useful to a degree, IR realism's reach is limited because it exaltsUle idea of the unitary State and explains institutions not as autonomous~pgines of influence themselves, but as reflections ?~ under.lyin.g confi­gurations of State power 123. Its model of State political umty, mhere~t$p;uflict, relative gains and rational self-aggrandizement cannot explainHie robustness of co-operation, even in the security sphere, nor the reality

. ub-State activity 124. Nor, however useful its descriptive insights, asdiscussion above on Holmes and Morgenthau illustrates, can it point

ffilbway towards an agenda to improve co-operative efforts.Institutionalists, or "regime theorists" 125, in the vein of Richard Kea­ne are more sanguine about the possibility of generating co-operation

~kcreating organizations and agreements 126. Adopting realism's coreassumptions of anarchy, conflict and self-interest, they show using the

·.ls of game theory and rational choice how cunning egoists canrove their lot by using fact-gathering, transparency-enhancing anderally formalized institutions to decrease barriers to collective action

solve complex prisoners' dilemmas l27. These include strategiesas "increasing iteration, increasing the quality and availability of

[and] linking regimes" 128, so that States can have an

See, e.g., Philippe Sands, "Reasons to Comply", supra footnote 5, at p. 17.See Joseph M. Grieco, "Anarchy and the Limits of Cooperation: A Realist

Criitiql1e of the Newest Liberal Institutionalism", 42I7It'l Org. 485,488 (1988).See, e.g., Legro and Moravcsik, "Is Anybody Still a Realist?", supra

.footnote 90.International regimes are defined here as

"social institutions consisting of agreed-upon and publicly announced prin­ciples, norms, rules, procedures and program~ that gove:n the i?teractionsof actors In specific Issue areas. As such, regimes contain specific regula­tions and give rise to recognized social practices in international society."Michael Zurn, "Sovereignty and Law in a Denationalised World", in Rulesand Networks: The Legal Culture ofGlobal Business Transactions, p. 50(Richard P. Appelbaum, William F. Felstiner and Volkmar Gessner, eds.,2002).

126. Institutionalism is often subsumed under liberalism, with which it isoften associated. See Legro and Moravcsik, "Is Anybody Still a ~eal!st'~", suprafootnote 90, at p. 516. Moravscik seeks to show, however, that institutionalism

more in common with realism than with liberalism. Ibid. Keohane recog­nized their connection as well, and in fact based his theory on appropriating therealist assumption of rational egoism. Robert Keohane, After Hegemony, supra

in)otu,ote 97, at p. 67.127. Ibid., at 66 (1984). Realists respond, however, that what States actually

care about is not absolute gains, of the tYl(e that an institution could secure, butinstead relative gains, i.e. their status vis-a-vis their c?mpetitors. Once a~ insti­tution is seen to result in relative losses for a State, It will depart from It. SeeJoseph M. Grieco, "A Realist Critique", supra footnote 123.

128. Abbot, "Modern International Relations Theory", supra footnote 119,at p. 408.

PART 1 - CHAPTER 5

INTERDISCIPLINARlTY AND,<:cINTERNATIONAL LAW: THE UTILITY OF«INTERNATIONAL RELATIONS THEORY

Int'l L. 367, 373 (1998). Slaughter, for instance, describes three ways in wthe legal profession can employ international relations theory: to explainnational policy problems and envision responses, to reconsider and recotualize specific international institutions or general international law,analyse the function and structure of international law. Ibid.

120. A fourth school, constructivism, is also fairly prominent, taking thethat States' preferences, identities and interests are not exogenously determbut instead are the products of interstate interaction. See, e.g., Alexander"Rear-View Mirror", supra footnote 105. This approach may well yield prainsights for a pragmatist approach towards international law and terrorismis omitted for the purpose of brevity and because its development remainstively nascent.

121. Eric A. Posner, "Fear and the Regulatory Model of Counterterroris25 Harv. JL & Pub. Pol'y 681 (2002).

International relations theories that seek to explaibehaviour fall into three primary categories: realism, institutionaliberalism 120. As we have seen, each is useful to a pragmatic atinternational law in so far as it helps us to understand the natufie problems with the hope that practicable solutions may be deour purposes, international law serves as a means for policy htion and co-ordination, and furthering joint ends and co-obetween States to suppress terror-related activities. In this arenand practices are diffused not just by formal international lawtions attended to by the central political authorities (essentially trto a lesser extent custom) but also by informal norms and practicesthose practised by the agencies responsible for implementing theeterrorist regime. These agencies include the intelligence serviemilitary, certain regulatory entities such as ministries of infrastrutransportation and finance and law enforcement personnel 121.

In order to gain a better sense of how these international telatheories may be useful to a pragmatist approach to internationalirole in combating terror, it is worth a brief understanding oftheoretical approaches can illuminate the functioning of interstateaction.

Given the often conflictual nature of interstate disagreementrorism, and the apparent drive for relative power maximization beinternational relations realism would seem to be an appropriate

SECTION 5

discipline to understand the alternative functionality of lawnorms in the context of transgovemmental relations that we now

218

221PRAGMATIC METllOI) ANI) INTERNATIONAL LAW

Positivism's Progeny: The Inadequacy of LiheralInternationalism

133. See, c.g. Jack L Goldsmith and Eric A. Posner, The Limits of Interna­tional Law (2005).

134. M. Cherif Bassiouni, "Legal Control of International Terrorism: A Pol­icy-Oriented Assessment", 43 HarvLnt'l U 83, 91-92 (2001). Yet he describesthe logic of having a comprehensive convention on terrorism as "compelling, asis the logic against the current piecemeal approach ...". Ibid. at 92,

135. Raustiala, "Architecture", supra footnote 132, at p. 71.136. See Bassiouni, "Legal Control", supra footnote 134, at p. 91. See also

Report of the Ad Hoc Committee Established by General Assembly Resolution5I!2to of 17 December 1996, Tenth Session (27 February-3 March 2006), UNdoc. (A/61/37) (March 2(06).

137. See also Gregory Rose and Diana Nestorovska, "Towards an ASEANCounter-Terrorism Treaty", 9 Sing. Yrbk.lnt'l L. 157 (2005) (recognizing that atreaty "should promote its own implementation by building regional capacity toenforce national laws through cooperative intelligence gathering, preventionstrategies, crisis management and investigation efforts". See also, e.g., MauriceFlory, "International Law: An Instrument to Combat Terrorism", in Terrorismand International Law, pp. 30-39 (Rosalyn Higgins and Maurice Flory, eds.,1997); Ely Kartnon, "International Cooperation in Tackling Terrorism; TheMiddle, East", in United Nations .. Multilateralism and International Security,p. 235 (e. Uday Bhaskar, Uttam K Sinha and K. Santbanam et al., eds., 2005).

The limits of liberal internationalism are becomingclearer at the same time as are its functions 133. As Bassiouni recog­!llzes, echoing Franck, "treaty-based international legal efforts to combatterrorism have suffered from ... problems in enforcement and deter­rence" 134. The increasing relative unattractiveness of liberal internatio­nalism stems from the unwillingness of States to relinquish power tointernational organizations, the unaccountability of internationalbureaucrats, the overly stulted, formalized procedures of internationalInstitutions and high bargaining costs 13:( That may be why, as Raustialaproclaims with respect to international law more generally, "[tjhegolden age of the treaty as the central tool of international cooperationisending".

Nevertheless, the typical positivist response to a crisis or long-standingproblem is to craft, or interpret, a convention. The Ad Hoc Committee onMeasures to Eliminate Terrorism, charged by the UN General Assembly,for instance, remains hard at work on creating a comprehensive treaty 136

against terrorism to supplement the 12 more specific treaties nowin force. None of these attempts to define terrorism, hut insteadcommit States to deal with particular types of terrorist crimes, such ashijacking and bombing 137.

If, indeed, a comprehensive treaty against terrorism were to be sue­cessfully negotiated, the next question (and what should be the first ques­tion) would be why it would be effective given the enormous obstacles

PART I - CHAPTER 5220

easier time learning of and responding to violations by other States,reducing incentives to cheat by engaging in free-riding or rent-seekj,behaviour 129.

Regimes, then, should be seen as both information-increasingtransaction cost-reducing 130.

When States seek solutions to terrorism in formal institutiarrangements to overcome these common problems, they seek to elish stable ~ehavioural expectations and foster relationships thatallow for effective co-operation in the future 131. Though regimesnot be formal, the positivist framework for international law priemphasizes treaties and intergovernmental organizations, an approreferred to as "liberal internationalism" 132. Like positivism, it too fto provide a complete basis for undertaking a comprehensive coltterrorist project.

1~9. Keohane, After Hegemony, supra footnote 97. Both institutionalistsrealists see that international law/relations can be divided into two .spheres : s1?cun~y and. non-secunty. In security matters. States are obsessedr~lat~ve g,ams vI~-a-vls oth~r States. EveJ.1 if they stand to gain in absoluten~y, If a .Sta~e gains more vta a co-operative agreement, the less-benefited SwI~l desist tr?f?1 co-operation, concerned with their ultimate safety in an~hl~, c?mp~tItlve environment, an assumption both theories maintain.insututionalists believe this dyn~mic does not hold up in the economic spwhere S!ati~s are ,more c?ntent with absolute advances, realists counter that sec~momic ~orce ~s fungible, and easily transmutable to military force, rel&a1OS considerations playa role here, also, dampening the prospects of intIon~1 co-operation, See Grieco, "A Realist Critique", supra footnote 123. Ifre,altsts ~re,nght, we can perhaps b.etter explai~ institutional co-operation ineconorr,llc sphere by reference to liberal theones that emphasize domestic fa.t~)fs. Disparate domestic actors, themselves interested in absolute and not ret~ve eC0!1?mIC gains, may p~essure States to adopt wealth-enhancing co-openve policies, even If actors 10 other States are benefiting more. In the secu!"ealm, however, much greater deference and responsibility is given to centized decision-makers, who might adopt a relative gains position on securityte~~. Suc~ a perspective would, however, probably apply more to a distinctof ISSU~S mvolvmg.suspe:cted !errorists and unfolding plots, and less to gendefensive co-operative efforts rn the regulatory arena governing threats to puheal:h a~d safety. Indee~, agencies t~adition.al1y associated with other regulacOlll:e:ns have se~n then role rn antr-terronsm efforts expand, as they gen~ew airport security standards, put the squeeze on terror-related money laumg an~ assess security requirements of civilian economic infrastructufrom ShIpS to computer networks to chemical plants. See Eric A. Posner "Fand th~ ~egulatory Model", sill~ra f~otnote 121, at pp. 681-682. Thes~ rel~tory aspects ~)f counter-terrorist efforts may be more amenable to instional co-~)pera~IOn because they deal in terms more like the economic thanthe secunty-oflented, where absolute gains - not suffering an attack _adequate.

130. Keohane, After Hegemony, supra footnote 97, at p. 101.131. Ibid.,alp. 89.

. 1~,2. See, e.g., Kal Raustiala, "The Architecture of International Coopera­non .43 Va. J. Int'{ L. 1,2-3 (2002).

223PRAGMATIC METHOD AND INTERNATIONAL LAW

142. Ellickson, supra footnote 141. . . '."143. Anne-Marie Slaughter, "International Law III a World of Liberal States,'

6 Eur: J. Int'l L. 503, 505 (t995). Where Slaughter's liberalism treads that thischapter does not is to stress the likelihood that liberal democracies ar~ morelikely to co-operate with one another through legal mea~s suc~ as tre,alles. andadjudication. This explains the "liberal" label. While 11s matn project IS toexplain how domestic liberalism, inthe fon:n of ~emocracyand free markets: ~<l?enhance the potential for co-operation by fostering we~s of cross~bo~?era~tJvI­ties, in its emphasis on transgovernmental networks, Iiberal theory applies toall states". Ibid. See also Annie-Marie Slaughter, "Government Networks: TheHeart of the Liberal Democratic Order", in Democratic Governance and Inter­national Law, p. 199 (Gregory H. Fox and Brad R. Roth, eds.,.2(00). , " .

144. Harold Hongju Koh, "Why Do Nations Ohey.lnternatlOnal Law? , 106Yale Ll2599 (1997) (citing Keohane that "[s]ubtler instrumentalist arguments

functional alternatives for one another, and mayor may not overlap 142. Insome areas, where treaties, for instance, are vague, weak or otherwisealmost entirely hortatory, such informal norms and co-operation can be farmore powerful means of understanding, and tailoring interstate interaction.

We need not lose sight of institutionalism's insights as we considerhow to modify its assumptions to better tailor our law-related counter­terrorist efforts. Yet a key assumption a nimble understanding of interna­tional law that ought to change, from a functional perspective, is therealist/institutionalist commitment to the unitary State. Liberal theories(distinct from "liberal internationalism"), by contrast, emphasizedomestic politics, bureaucratic competition and transgovernmentalrelationships of sub-national regulators and law enforcement personnelas the primary forces in international affairs. The arrangements Statesmake to foster these transnational relationships, however, arise not fromsystemic or personal factors, nor from ration~l, centralized decision­makers, even if they obviously wield great influence. As Slaughterexplains, we must instead envision

"the disaggregation of the State into its component political institu­tions - courts, legislatures, executives and administrative agencies- and examine the principles governing transnational interactionsamong these institutions" 143.

This insight, as Keohane and Nye observed some time ago, may allowus to consider transgovernrnental networks as a means to spur policyharmonization and State co-operation where it might otherwise beineffective. As Koh sees it,

"[t]he more sophisticated instrumentalists are willing to disaggre­gate the state into its component parts, to introduce internationalinstitutions and transnational actors, to incorporate notions of long­term self-interest, and to consider the issue within the context ofmassively iterated multiparty games" 144.

PART I - CHAPTER 5

138. See, e.g., Guzman, A General Theory of International Law 18coming; draft manuscript on file with author).

139. Glennon, "Rules Die", supra footnote 69,140. Oona Hathaway, "Do Human Rights Treaties Make a Difference?", II

Yale U 1935 (2002).141. Robert C. Ellickson, Order without Law; How Neighbors Settle

putes (2005); Hans Morgenthau, Politics among Nations, supra footnote 96,p. 276 ("There are rules of international law which are valid, althoughenacted in such legal instruments, and there are rules of international laware not valid, although enacted in such instruments").

and disagreements that underlie the current contention. If the concluof such a treaty signalled a new-found consensus that so-called freefighters can or cannot be terrorists, and that consensus resulted frchange in State policy that would be duly executed, then the treaty mbe meaningful, or least a symbol of meaning. Whether it performedwork is a question that would depend on such variables as the repersions for States' domestic prosecution of terrorists or the consequenfor faster or more frequent extraditions,

If, however, a treaty is successfully negotiated and enters into fwithout the underlying change of heart, then, the pragmatist wouldwhat is the point of the treaty'? Does it, for instance, simply reflect wgame theorists would term a "pooling equilibrium" wherein Stathave incentives to conform to the plurality/majority view u,"cheap talk" 138 '? Will it be as effective as Article 2 (4) of the UN Chartgoverning when States may resort to the use of force, a provisithat has arguably fallen into desuetude J39 '? Will the treaty resemblehuman rights treaties that Oona Hathaway's empirical work shows tso unavailing 140? What does it mean for these provisions to "applfrom a pragmatist perspective, i.e. in terms of their effects '?

If a comprehensive counter-terrorism treaty is signed with the flaabove or is never reached, what would be the consequences for Stateoperation in suppressing terrorism? Even formally, reservations to ttreaty could well gut key provisions. In this light, the pragmatist woask, what is not being done as a result of the treaty's absence'? Are spected terrorists being freed? Are counter-terror efforts actually commised ? Are alternative methods of counter-terrorism inadequate?countries that would co-operate in a particular initiative not co-opera .for lack of a common definition? Or are informal norms generated'among law enforcement and intelligence agencies filling the gap '?

Because despite rafts of multilateral treaties and bilateral agreements,co-operation remains suboptimal, it is reasonable, indeed essential,consider what other means are available. If we are to take a truly tunctio­nal view of law as a means to co-operation, we must first of all seethe law and norms are not coterminous 141. Norms and laws may serve

222

225PRAGMATIC MP:rHOD AND INTERNATIONAL LAW

-"-14~-:Tra~sgovernmental Relations", Keohane andNye, supra foo~note 147.149, The criminology literature echoes his call for tur~her research ,~nto trans­

governmental relations, specifically with respect to police co-operanon, a keycomponent of the multifaceted counter-terrorism, regime: See Nora .Be~,sah,el, ~'ACoalition of Coalitions: International Cooperation against Terrorl~m , Studiesin Conflict & Terrorism, pp, 35,43, January-February 2006. As of 2.001, thert?was said to be "a paucity of available scholarly literature" on the subject, KormSwaroop Kumar, "International Police Cooperation in Asia",.in InternationalPolice Cooperation: A Wodd Perspective, pp. lOS, 110 (Daniel J. Koenig andDilip K. Das, eds., 200 I).

150. Raustiala, "Architecture", supra f?otnote 132, ~t p, 26., ".lSI. See, e.g., Mathieu Deflern, 'v'Wild Beasts without NatlOn.ahty . ~he

Uncertain Origins of Interpol, 1898-1910", in Handbook ofTransnational Crimeand Justice, p. 284 (Philip Reichel, ed., 2(05).

lanet's most challenging regulatory difficulties, from financial regula­~on to trade to global organized crime to terrorism 148. In fact, tra~s-

overnmental law enforcement relationships have long been a major~ bject in the field of criminology, though fairly little of this literature~:ems to have been incorporated into discussions of internationa! law.The pragmatic method's interdisciplinary nature recommends w~ mear-.porate that discipline's insights into our own understandings ofhlternational law 149, ,

Preliminary evidence suggests that networks may have differentimpacts depending on the regulatory ~nvironment. Raustiala has s?ownthat where global regulatory authority is concentrated, for example m thesecurities context, networks' greatest impact may be IU promotmgharmonization. Where power is diffuse, by contrast, as with globalpublic zoods such as the environment, networks' most significant effectmay bein helping States better abide hy their treaty obligations ISO.

Research into transgovernmental criminal law enforcement networksindicates that networks can also have important harmonizing and policyco-ordinating functions in their own right 151. Informal, transgovernmen­tal regimes can also engage in monitoring others' performance, so thatstates can rationally calibrate their expectations about their counterparts'

motives, intentions and propensities, as well as their currentcondlJc!. Though not specifically discussing transgovernmental criminal

enforcement networks dedicated to counter-terrorism, Keohanepresciently observes'

"[Ejffective international regimes facilitate informal contactand communication among officials. Indeed, they may lead torransgovernrnental networks of acquaintances and friendship;supposedly confidential documents of one government may beseen by officials of another; informal coalitions of like-mindedofficials develop to achieve common purposes; and critical dis-

PART I .~ CHAPTER .5

Transgovernmental Relations as an Alternativefor Counter-terrorist Policy Convergence

recognIze "til'iit rules, as part of the environment faced by a state, exert an imon state behavior because they alter incentives, not merely for states con 'of as units but for interest groups, organizations, members of professionalciarions. and individual policymakers within governments". Hongju Koh, op;a' 2633. note 176).

145. Glennon, "Rules Die", supra footnote 69, at pp, 955-956.146. Robert Ellickson, supra footnote 141, at P: 286.147, Robert 0, Keohane and Joseph S. Nyc, "Transgovernmental

and International Organizations", 27 Int'l Org. 39,43 (1973), Slaughtbroader, calling them "patterns of regular and purposive relations amonggovernment units working across the borders that divide countries fromanother and that demarcate the 'domestic' from the 'international' spheAnne-Marie Slaughter,A New World Order, p. 14 (2004).

According to Keohane and Nyc, transgovernmentalworks are "sets of direct interactions among sub-units ofgovernments that are not controlled or closely guided by the pthe cabinets or chief executives of those governments" 147. Becaaim here is to examine the generation. modification and observinternational norms affecting issues in the war on terror, this transgovmentalist insight goes a long way towards explaining the export, cogence and harmonization of various norms. lf the value of all ttheories is measurable in light of how they contribute to pracproblem solving, then the study of transgovernmentalism holdspromise for injecting the study of international law with fundicontextual and, hopefully, instrumental insights into how best to enhthe overarching counter-terrorist regime.

Transgovernmental law enforcement networks have long workesemi-autonomous agents to advance a set of national, bureaucraticpolicy agendas, in the process relying on, creating, enforcing and adjing international norms of behaviour with respect to both privateand themselves, Through their co-ordination of State activity,said to offer an innovative, effective method for dealing with many

Paragraph 2

Indeed, "norm creators within the international system sometimespreference to use informal control mechanisms rather than 'risky'rules to maintain international order" 145. And as Ellickson w"lawmakers who are unappreciative of the social conditions thatinformal cooperation are likely to create a world in which .thboth more law and less order" 146 So it is that international relscholars have begun refocusing their attention on the potential ofgovernmental networks.

224

227PRAGMATIC METHOD AND INTERNATIONAL LAW

158. Deflem, "Wild Beasts", supra footnote 151, at p. 280.159. Ibid., at pp. 275, 277.160. Ibid., at p. 277. See also Malcolm Anderson, "Interpol and the Develop­

ing System of International Police. Cooperation", in Crime and Law Enforce­ment in the Global Village, supra footnote 155. The representatives to Interpolconsist only of representatives of police agencies, not State ministries, and theconsequent lack of ministerial involvement gives the organization a great degreeof independence and freedom from political oversight.

161. Deflern, supra footnote 151, at p. 281.162. tu«, at pp. 283-284.163. Ibid.

at the national levels and restricted the practical implications ofrelated plans to foster international police cooperation" 158.

The potential for informal, transgovernmental co-operation to overcomethese divisions was on display in 1914 at the First Congress of Interna­tional Criminal Police, held in Monaco. The meeting's purpose was topromote law enforcement co-operation, but failed "because it was stillframed in terms of the provisions of international law rather than thebureaucratic model that police institutions had by then come to adopt" 159.

What was needed to spur co-operation instead was the establishment ofthe International Criminal Police Commission in 1923, today known asInterpol, built by professionals "oriented toward criminal enforcementduties and ... independently established by the representatives of policeinstitutions rather than their nations' political authorities" 160.

Ultimately, co-operative success against anarchism came about in largepart by the direct contacts between different police forces, and becausethe agreements' conceptual terms were technical and bureaucratic, notlegalistic. This, in turn, resulted from "the attained level of expertise andprofessionalism in police institutions rather than because of any willing­ness on the part of the governments of national states to legislate ..."161.

Ultimately, Deflem finds,

"accomplishments in effective practical police cooperation, evenwhen cooperation was achieved in the wake of formal intergovern­mental treaties, was not governed top-down by governments and thetreaties they had been able to agree on, but was worked out from thebottom up at the level of a developing cross-national police cultureof experts, despite the politically charged nature of anarchism" 162.

A very similar dynamic has played out in the United States-led war ondrugs and other transnational crime. Deploying Drug EnforcementAgency, Federal Bureau of Investigation and other liaison agents, along­side other modes of leverage, the United States worked to harmonizeanti-drug policies "by persuading foreign agents and agencies to adopt[US law enforcement] methods and models" 163. These efforts brought

PART I - CHAPTER 5

And security experts such as Anthony Cordesman recognize that tbuilding via institutions like Interpol, which remains a transgovernmeproject of law enforcement personnel and not constituted undertreaty 155, is critical. Such institutions, he writes, "have long showncan foster international cooperation in spite of national and cultudifferences", differences that "terrorists often do a superb jobexploiting" 156.

History provides a clue to the efficacy of transgovernmental intaction. The turn of the twentieth century also Saw its days of terrorisin that day exemplified by the regicidal anarchist 157. Yet the

"ideological-political differences among the governmental powof Europe prevented anti-anarchist legislation from being pass

cussions by professionals probe the assumptions and asseof state policies. These transgovernmental relationshipsincrease opportunities for cooperation in world politics byviding policymakers with high-quality information abouttheir counterparts are likely to dO."152

This insight is supported in the law enforcement realm. As Heywrites, "institutional constituencies such as law enforcement officmay find that their interests resemble those of their foreign counterpmore than those of other groups within their Own country" 153. Hetinues,

"[wjhile personal relationships can replace such formal systemsfacilitate the exchange of information, regular access to forcounterpart agencies and facilitating arrangements, suchperiodic conferences are necessary for personal relations toeffective" 154.

226

I52. Keo~ane, After Hegemony. supra footnote 69, at p. 101.. 153. Philip B. Heymann, "International Cooperation in Dealing with TeIsm: A Review of Law and Recent Practice", 6Am. VJ Int' L. & Pol 'y I (l1991).

154. Ibid., at p. 15. He qualifies his faith in this model somewhat by writhat while "police have a greater propensity to share info with their countparts", they will not commit violations of their domestic law by sharing certaInformation. Intelligence, defence and foreign ministry officials see riskletting even their own colleagues in other ministries in on certain informlion. tu«, at p. 14.. 155. M~lcolm Ande~son, '~lnterpol and the Developing System of Intern!J~mal Police Cooperation", In Crime and Law Enforcement in the GlobVIllage, pp. 89, 91 (William F. McDonald, ed.. 1997). ....

156. Anthony Cordesman, "The Lessons of International Cooperation iCounter-teITori~m", 3-4, availabl~ at http://www.csis.org/mediaJcsis/pub060118~lessonsllltcteoop.pdf (last Visited 13 Decemher 2006).

157. See Deflem, "Wild Beasts", supra footnote 151, at p. 277.

229PRAGMATIC METHOD AND fNTERNATIONAL LAW

that "promotes consensual, bilateral action on the part of all statesinvolved ..." 172.

The practice of rendition illustrates the perceived shortcomings ofliberal internationalism as manifested in extradition treaties, which havebeen fairly ineffective in the fight against international terrorism 173.

Extradition is often cumbersome and slow, and subject to variousobstacles, such as the requirements of double criminality, political offenceexceptions \74, extra-legal requirements. such as those part of a nation'sdomestic system 175, fear of retaliation, bribery and governmental corrup­tion 176. When intelligence collection is such a vital part of counter-terror­ism efforts, such delay can mean the loss or obviation of vital information.

Renditions are understandably controversial. Part of the controversy isthat the practice is generally associated with a different, but related, andeven more contentious tactic: torture. Often terrorists or their sympathi­zers, as well as innocents caught in the middle, find themselves snatchedfrom a sidewalk or an airport by foreign or domestic agents, usually atthe behest of the United States. American agents also arrange the sus­pects' transfer to third-party States with histories of torture and abuse.That of course is said to be the point, a way to circumvent American lawsprohibiting torture by "outsourcing" it. This matter is separate from thedistinct question of rendition alone, however, which has also beencondemned (and defended) under international law in its own right 177.

Witness, for example, the recent controversy surrounding the rendi­tion of Osama Moustafa Hassan Nasr, an Islamic cleric and suspectedterrorist, resulting from the collaboration of Central Intelligence Agencyoperatives working with their Italian colleagues. While it is unclearwhether Italian intelligence had the green light from their politicalsuperiors, it is clear from the resultant criminal investigation into theiractions that the Italian Government is not of one mind on this issue 178.

172. Laflin, "Kidnapped Terrorists", supra footnote 171, p. 326. ~ .173. Sylvia Borelli, "The Rendition of Terrorist Suspects to the United

States; Human Rights and the Limits of International Cooperation", in !f:nfo~­

cing International Law Norms against Terrorism, pp. 351,356 (Andrea Bianchi,ed.. 2004).

174. tua.. at pp. 333-336.175. Warner, supra footnote 170, at p. 490.176. France, e.g., in 1977 refused Israel and West Germany's request for the

extradition of Muhammad Daoud Audeh, the mastermind behind the 1972Munich Olympics massacre in which Palestinian terrorists kidnappe~ a~d kill~d

eleven Israeli athletes. Laflin, supra footnote 171, at p. 318. Italy, similarly, III1985, assisted Palestinian Liberation Organization operatives suspected ofhijacking the passenger cruise ship the Achille Lauro to flee from Italy toYugoslavia, Ibid.

177. Borelli, supra footnote 173, at p. 356. . . .178. Ian Fisher and Elisabetta Povoledo, "Italy Seeks Indictments of eI.A.

Operatives in Egyptian's Abduction", NY Times, 6 December 2006.

PART I - CHAPTER 5

Extraordinary Renditions: Convergence on a Qutionable Norm? ...

Paragraph 3

228

The "Decade of Regicide" 169 has long since passed, aiithe war on drugs no longer occupies the minds of policy-makers as;once did (except in so far as it relates to terrorism, as in AfghanistanUn surprisingly, those charged with waging this new effort in the woof law enforcement and intelligence continue to employ some of tmethods of the past leading to similar modes of policy harmonization anco-ordination initiated and led by transgovernmental actors.

One such method is the practice of rendition 170, which under the defi;nit ion employed here occurs when "a state allows removal or assists H;wlo legal processes and outside the parameters of a formal extradititreaty" 171. It is "essentially a cooperative expulsion or deportation

about profound and controversial changes in European policing 164.

tactics the DEA pushed, and which were ultimately incorporated,sisted of "flipping" informants, i.e. negotiating plea bargains or offeIi.leniency in exchange for information about higher-ups 165. This tactic ....previously considered to contravene the "legality principle" or the "rulcompulsory prosecution", requiring prosecutors to charge all crimeswhich they had evidence, but eventually gave way to an entire systeminformant recruitment 166. "Buy and busts", more intrusive surveillancecontrolled deliveries also became part of the European toolbox 167. A .;as "proponent, example, tutor and lobbyist" 168, US law enforcemenengagement with European police resulted in an informal means of policonvergence instigated and maintained via a professional transnationetwork. These transnational relations, then, clearly serve to initiatestrengthen critical international co-operation where the power of traditiomethods of international law is not, for whatever reason, up to the task.

164. Ethan Nadelmann, Cops across Borders: The internationalizationCriminal Law Enforcement, p. 12 (1993).

165. Ethan Nadelrnann, "The Americanization of Global Law EnforcementrvThe Diffusion of American Tactics and Personnel", in Crime and Law nntorce• ...ment in the Global Village, supra footnote 160, at p. 123.

166. lbid., at p. 129.167. Ibid.168. Ibid.169. Deflern, "Wild Beasts". supra footnote 151, at p. 277.170. See, e.g., David P. Warner, "Challenges to International Law Enforce;

ment Cooperation for the U.S. in the Middle East and North Africa: Extradition.and Its Alternatives", 50 Vill. L. Rev. 479,501 n. 104,502 n. III (2005).

17~' Melanie ~' Laflin, "Kidnapped Terrorists; Bringing International'(Criminals to Justice through Irregular Rendition and Other Quasi-LegalOptions", 261 Legis. 315,326(2000).

231PRAGMATIC METHOD AND INTERNATIONAL LAW

pragmatist method compelling. For he g?es on to s,ay, and not because,,~fmisapprehension, that such a post-realist theory IS actually needed in

. . h d tism" ,82order to move beyond an lmpovens e pragrna Ism .In doing so he condemns pragmatism's "anti-formalism" as "reduc-

tionist;' and warns that

"[i]n seeing law as determined by ~xte~al objec~ives,. structures ornecessities, or making it seem the infinitely flexible instrument ofthe political decision-maker, it kills the possibility of politics, andof freedom, that lies in the gap between the two" 183.

Like Kelsen, Hart and their positivist successors, Kosk~n~ien:i se~s thelaw as its own autonomous, independent discipline, requmn~ ll~tl~ III ~heway of contribution from other areas of social sci~nce. Interdisciplinarity,argues Koskenniemi, invites the legal profession to acknowledge as

controlling

"the styles of argument and substantive outcome that the internatio­nal relations academia has been able to scavenge from the moralbattlefield. Behind the call for 'collaboration' is a strategy to usethe international lawyer's 'Weimarian' insecurity in order to te~pt

him or her to accept the self-image as an underlaborer to me policy. "l I' rth d "184agendas of the (American) intemationa re auons 0 0 oxy.

Thus, to Koskenniemi, the

"interdisciplinary agenda itself, together with a d;~orm~ize~concept of law, and enthusiasm about the spread of hber~IH'~,constitutes an academic project that cannot but buttress the Justifi­cation of American empire" ,85.

In assailing the stream of international relations/inte.rnational l~wscholarship's "collaboration" he argues that these theones emphasl.zeinstrumentalism as if it were a "special kind of sociology or moralityof the international" 186. The danger, he warns, lies in the prospect of instru­mentalism's misuse. "If law is only about what works, and pays noattention to the objectives for which it is used, then it will become onlya smokescreen for effective power." 187 Denouncing the dearth of rhe­torical power in a functionalist agnosticism, he warns t~at "Iw]~thout theability to articulate political visions and critiques, International law

~i82~'i(~;k~nniemi, "Introduction", supra footnote 9, at p. xii,183. Koskennierni, Gentle Civilizer, supra footnote 75, at p. 508.184. lbid.. at p. 494,185. Ibid., at p. 485.186. Ibid.187. Ibid., at p. 487.

PART I - CHAPTER 5

UTOPIAN DYSTOPIA: THE FAILURESOF FORMALISM

SECTION 6

As discussed above, such fragmentation, even within a single State,isnot uncommon, providing opportunities for arms of other States to workwith sympathetic agents abroad in the construction of new, extra-legalnorms that can either undermine or complement the intended functions - both moral and practical - of the law,

Yet a pragmatic appraisal requires that rendition's use and its mantlemust be weighed against its absence if we are to adequately assess tl1desirability of this tactic, taking into account both our values and 0

security 179. Is it "a vital tool in combating transnational terrorism. , .save[s] lives" 180 or an illustration of abuse law enforcement run amIf rendition is limited to the international transfer of suspects for non-toturous interrogation, to take advantage of the expertise and knowledgeforeign interrogators, perhaps from the suspect's home country, then ithard to see how it differs so much from preventive detention ­widely accepted practice of holding suspects without charge for a limiamount of time. This chapter does not purport to resolve or even fuaddress these questions. It seeks only to point out that the pracillustrates the possible emergence of a potentially beneficial, co-operalaw enforcement norm that depends not on formal law, and not necessily upon the acquiescence of central governmental authorities, but inston bureaucratic interests and relationships. ....

In sum, the pragmatist method tentatively embraces all theories andapproaches, sifting through them for their value in solving real-worldproblems. It rejects nothing out of hand on the basis of theory or s .lation, Instead it allows for possibilities and effects, however slight,embracing them all for any contribution they might make towards an ulti....mate objective. The same cannot be said for Martti Koskenniemi's prote-.formalism, discussed in the following section, which advocates just thalsort of rejection. Its target, in fact, is pragmatism itself.

Although the contextual, functional and instrumentalapproach sketched above would seem to answer Koskenniemi's call for."a post-realist theory which would articulate for international lawyers theexperience of . , , post-modernism" ISl, Koskenniemi does not find th~

179. Warner, supra footnote 170, at p, 493; Laflin, supra footnote 171.180. Quoted in John R. Crook, "Contemporary Practice of the United States;

Continuing Controversy Regarding Secret U,S. Rendition and Detention Prac­tices", 100 Am. J. Int'[ L. 232 (2006).

181. Koskenniemi, "Introduction", supra footnote 9, at p. xii.

230

J88. Koskenniemi, Gentle Civilizer, supra footnote 75, at p. 516.189, [bid.190. [bid,19L [bid" at p. 500.192. [bid,

233PRAGMATIC METHOD AND INTERNAI'JONAL LAW

negative example !93. In his utopian exhortation for a progressive inter­national agenda, Koskennierni's Platonist, formalist model rests on yetanother a priori set of ideals, of "universal emancipation, peace, andsocial progress" 194,

These are of course comely concepts and at first glance would seembard to contest as ultimate objectives, But the devil, as ever, is in thedetails. As Glennon points out, there can be no such things as value­neutral principles, not even ones as attractive as Koskenniemi's."[N]eutral (or any other) principles", he writes, quoting Holmes, are no

'" 'brooding omnipresence irf the sky' but social constructs, cre­ations of the human mind ... [tjheir breadth is subjective, elastic,and manipulable, and they can be generalized or particularized atwill to support or oppose any conclusion" 195.

And they have been. Which historical villain has not sought someversion of these in his mind. some vindication for past wrongs andassurances of future security for "his" people, even when this is but him­self and his adherents? To invoke even these nohle, seemingly universalconcepts is to provide little guidance to those seeking to achieve (ourconcept of) them, and little to constrain those whose conduct we findrepugnant to them. Are those States that justify terrorist acts as unfortu­nate but understandable acts of "freedom-fighting" expressing the "lack"of self-determination? To judge from the current impasse at the UN AdHoc Committee responsible for drafting the comprebensive anti-terrorconvention, the answer is a resounding yes. Otherwise, a uniform defini­tion of terrorism would have been reached long ago.

And even if these principles do accord with a more widely sharedview, to what purpose does their trumpeting go? Who in a position toactually redress or prevent injustice is incentivized by their pronounce­ment? While there might be times when such rhetoric in the form ofinternational law can be galvanizing or act as a trump card, perhaps in adomestic courtroom, if international law is to be more than a self-congra­tulatory vocabulary, we might endeavour to explore how it can do more.

The inherent malleability of "neutral" principles of international lawis even better iHustrated by the International Court of Justice's decisionin the 2004 decision in Legal Consequences ofthe Construction ofa Wallin the Occupied Palestinian Territory (the Barrier Wall case) 196. That

193. Koskenniemi, Gentle Civilizer, supra footnote 75, at P. 500,194, [bid"atp.516.J95. Glennon, "Rules Die", supra footnote 69, at p. 945.196, Advisory Opinion of 9 July 2004, available at http://www.icj­

cij.org/icjwww/idocketlimwp/imwpframe.htm (last visited 6 December 2006)(hereinafter Barrier Wall case).

PART [ - CHAPTER 5232

becomes pragmatism all [he way down ..." 188 Ultimately, the resultant"function-dependent, non-autonomous law" would serve as "an ingeniousjustification for a world Leviathan" 189.

Given the gravity of these charges, it is tempting to think that Koske.n&niemi's critique derives from a miscomprehension of what pragmaticaccounts of international law entail. For instance, he describes, interna..tional lawyers "stress the pragmatic functions of their profession", oycreating and advocating human rights regimes, writing commentary orcritiques, and by "sustain[ing] back-up narratives that link counseling o.~

article-writing to larger visions, grasped by private intuition rather thanpublic discourse" 190 If this is the value-added of international law, thenKoskenniemi has little to fear. While these may indeed be practical tasks,they are by no means necessarily pragmatic ones, because they are sO:often detached from concrete consequence, Indeed, human riglii~

regimes, commentaries and critiques, to say nothing of "article-writiri~fi:

and "back-up narratives", cannot be confidently said to regularly impactbehaviour.

These tasks in fact frequently entail the formalistic positivism, on its ownerrand, that sniffs at considering the pragmatist concept of consequencesas a guiding light.

Koskennierni's condemnation, however, owes nothing to misunder­standing. His critique cuts to the quick of the pragmatist method. Hemakes this clear in assailing the very core concepts of pragmatism ~.

functionalism, interdisciplinarity, contextualism and instrumentalism -:.:..that distinguishes it as a useful tool for thinking about shaping the world.On the grounds that pragmatism is "impoverished" as an apology forpower, Koskenniemi rejects pragmatism's promise because he looks to"pure" law as a means to achieve his view of justice, a power-equalizing,value-neutral, formalism.

This "culture of formalism", according to Koskenniemi, is one of"resistance to power. , . [that] makes a claim for universality that maybe able to resist the pull towards imperialism" 191, International law's"energy and hope", he goes on, "lies in its ability to articulate existingtransformative commitment in the language of rights and duties andthereby to give voice to those who are otherwise routinely excluded,"namely the victims and subjects of colonial power 192. Such a principleuniversal yet "non-imperial" because it is "empty", justifying itselfarticulating the deprivation suffered by the victims of colonialism as

235PRAGMATIC METHOD AND INTERNA:flONAL LAW

202. Barrier Wall case, supra footnote 196, at para. 140.203. Barrier Wall case, supra footnote 196, Declaration of Judge Buergen-

thal, at para, 9.204. Ibid., at para. 3.205. Ibid., at para. 5.206. Ibid., at para. 6.207. Ibid., at para. 7.

vinced that the construction of the wall along the route chosen wasthe only means to safeguard the interests of Israel ..." 202. It did not,apparently, feel compelled to elaborate.

Such reasoning failed to win the support of the lone dissenter on theCourt, Judge Buergenthal. His declaration, in contrast to the Court'sformalism, nicely illustrates the pragmatist approach. Buergenthal dulyacknowledged the value of the concepts articulated in the various treatiescited by the majority, but also insisted on a fact-specific analysis that tookinto account the actual consequences and considerations governing theconstruction of the fence. In doing so, Judge Buergenthal did not, as Kos­kenniemi would fear, affirm the legitimacy of Israel's military superiority.In fact, Judge Buergenthal made clear his belief in the likelihood thatIsrael had in fact contravened international law.

"Given the demonstrable great hardship to which the affectedPalestinian population is being subjected ... 1 seriously doubt thatthe wall would here satisfy the proportionality requirement toqualify as a legitimate measure of self defence",

he opined 203. He wrote further that

"[i]t may well be, and I am prepared to assume it, that on athorough analysis of all relevant facts, a finding could well bemade that some or even all segments of the wall being constructedby Israel on the Occupied Palestinian Territory violate interna­tionallaw" 204.

Yet Buergenthal understood that "to reach a conclusion either way, onehas to examine the facts bearing on that issue" 205, a scrutiny that "theCourt's formalistic approach to the right of self-defence enables it toavoid addressing" 206. He concluded:

"Lacking is an examination of the facts that might show why thealleged defences of military exigencies, national security or publicorder are not applicable to the wall as a whole or to the individualsegments of its route. The Court says that it 'is not convinced' butit fails to demonstrate why it is not convinced, and that is whythese conclusions are not convincing." 207

As it happened, Israel's own Supreme Court took the pragmatic

PART I -~ CHAPTER 5

The Barrier Wall Case

The Barrier Wall case involved a controversial securityfence that Israel began constructing in 2002 to prevent Palestinian suicidebombers from entering Israel proper after a spate of attacks that killed,as of April 2004, just before the Court issued its judgment, some 900<Israeli civilians since the beginning of the "Second Intifada" in late2000 197• From its inception the fence came under intense criticism f{)rrunning through confiscated Palestinian land, cutting off farmers from.their crops and curtailing the freedom of movement for thousands of elvi:. .:Hans 198. In response, the UN General Assembly requested the IClioissue a non-binding advisory opinion on the legality of the fence underintemationallaw 199.

In its ruling, the IeJ determined that the fence contravened internatio­nallaw as articulated in a variety of instruments, including the UN Char..ter, numerous General Assembly and Security Council resolutions, the·Fourth Hague Convention of 1907, the Fourth Geneva Convention of1949, the International Covenant on Civil and Political Rights, the Inter­national Convention on Economic, Social and Cultural Rights, theConvention on the Rights of the Child, customary international humani­tarian and human rights law, and its own previous decisions 200. Thepaid scant attention to Israel's stated rationale for constructing thein the first place, leaving the questions of proportionality and necessity- key concepts that strike a balance between security and humanity --'­as mere afterthoughts 201. "The Court", read the judgment, "is not con-

197. See http r//securityfence.mfa.gov.il (last visited 6 December 2006).198. See Beit Sourik Village Council v. The Government of Israel, HCJ

2056/04, 30 June 2004, paras. 9-11, available at http://elyon Lcourt.gov.il/files_eng/04/560/020/a28/04020560.a28.pdf (last visited 13 December 2006).See also Human Rights Watch, Israel's "Separation Barrier" in the OccupiedWest Bank: Human Rights and International Humanitarian Law Consequences,available at http://hrw.org/englishldocsI2004/02120/isrlpa7581.htm (last visited6 December 2006).

199. Barrier Wall case, supra footnote 196, at para. 133.200. Ibid.201. Ibid., at paras. 140-142.

Paragraph 1

decision, indeed, seems tailor-made for Koskenniemi's anti-t'colonial"formalist methodology. Ironically, it succeeds instead in illustrating thefutility of formalism, at the same time that it points the way towards amore satisfying path for the analysis of international law - the pragma­tism that Koskennierni rejects. After a discussion of that case, the sameapproach is taken to an even more controversial topic, that of physicallj:coercive interrogations of terror suspects.

234

237PRAGMATIC METHOD AND INTERNATIONAL LAW

The question of a definition of torture is a contentious one and subjectto a spectrum of interpretations. At the more expansive end we haveviews along the strict lines of "as soon as the person is intimidated, it'storture" 212, to the Bush administration's previously held view that for tor­ture to take place, it "must be equivalent in intensity to the pain accom­panying serious physical injury, such as organ failure, impairment ofbodily function, or even death" 213. Common Article 3 of the GenevaConventions, for its part, prohibits "violence to life and person" and"outrages upon personal dignity, in particular, humiliating and degradingtreatment of any kind" 214. The Convention against Torture (CAT) differs,viewing it in relevant part as "any act by which severe pain or suffering,whether physical or mental, is intentionally inflicted on a person ..." 215.

Interestingly, as Oona Hathaway has found, States that have signed theCAT and related treaties may in fact have a slightly higher chance ofcommitting the ghastly practice?". Her statistical work in this area is pre­cisely the sort of functionalist empiricism at the heart of the pragmatistmethod, looking at the causal power of treaties as a means to alter Statebehaviour. While widely hailed, its conclusions and methodologies havenot gone unchallenged 217. Thus far, however, her analysis has not beenconvincingly refuted. If it holds, or even if it is shown that the CATamounts to nothing but cheap talk, it would do much to call into questionthe liberal international forms of positivism that continue to dominatediscussions of international law.

The question of whether torture itself might be an effective counter­terror tactic has garnered more attention, and is also an appropriatesubject for the pragmatic method. Given the widely recognized horrorof the practice, mainstream debate recognizes really only the questionof whether it should even be used in the most extreme circumstances,when the lives and pain of dozens, hundreds, thousands or more are

212. Bellamy, op. cit. supra footnote 211 (quoting Dr. Rona M. Fields of theCenter for Advanced Defense Studies at George Washington University).

213. Office of Legal Counsel, Office of the Assistant Attorney General,"Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A I",1 August 2002, available at http://www.humanrightsfirst.org/us_law/etn/gon­zales/memos,_dir/memo.,_20020801_JD_%20Gonz~.pdf(last visited 13 December2006).

214. Convention Relative to the Treatment of Prisoners of War (GenevaConvention Hl), 12 August 1949, Art. III, 75 UNTS 135 (entered into force12 August 1949).

215. Convention against Torture and Other Cruel, Inhuman or DegradingTreatment or Punishment, adopted 10 December 1984, 1465 UN7S 85 (enteredinto force 26 June 1987), Art. 1.

216. Hathaway, supra footnote 140.217. Ryan Goodman and Derek Jinks, "Measuring the Effects of Human

Rights Treaties", 14 EUI: J. Int'l L. 171 (2003) (criticizing Hathaway's researchdesign and conclusions).

PART I - CHAPTER 5

Coercive InterrogationsParagraph 2

208. Beit Sourik: Village Council v. The Government of Israel, supra foot­note 198, paras. 9-11.

209. Yuval Shany, "Capacities and Inadequacies: A Look at the Two Separa­tion Barrier Cases", available at www2.colrnan.ac-illlaw/concord/publications/capacities%20and%20inadequacies,:lo20C/o20shany,doc (last visited 6 December2006).

210. See Revised Route of the Security Fence, http://www.securityfence.mod.gov.illPages/ENG/news.htm#news46 (last visited 15 December 2006).

211. For a discussion, see Alex J. Bellamy, "No Pain, No Gain? Torture andEthics in the War on Terror", 82 Im'l Aff. 112 (2006).

One might ask the same questions of victims of coerciveinterrogations. Would they prefer a legal opinion that, ignoring thereal world facts and circumstances of their interrogators' motivesknowledge, leaves them as vulnerable as before? Or an analysis thatempirical data to show that torture simply does not work, or not as effec­tively as less extreme methods, findings that would presumably havemuch more impact on interrogational tactics 211?

approach - using the doctrines of proportionality and necessitygenthal employed - as the centrepiece of its analysis. Only daysthe IC]'s opinion, it ordered the Israeli Government to alter the route ofthe barrier so as not to impose unnecessary hardship on affected Palesti..nians 2oa, a decision with which its Government has since cornplied,Unlike an IeJ advisory opinion, of course, a domestic Supreme Courtruling in Israel is authoritatively binding. Yet the pragmatic methodologythe Israeli high court deployed still imposed serious "constraints upon thegovernment's freedom of action in a most sensitive area of national seen":rity policy" "", and need not have been followed fully. One reason it hasbeen, it may be supposed, beyond the internally binding explanation, isthat the Israeli court took pains to recognize the factual scenarios under;pinning the fence's construction. What if the IC]'s ruling had been "bind­ing" and Israel removed the fence to an onslaught of suicide bombers 1Then Israel would surely have been justified in practising self-defence,in the process undoubtedly killing scores more Palestinians than if suereprisals had no basis at the outset. Moreover, the fence, though stillimposing significant hardship, now does less harm than before, allowingmore freedom of movement and increased access to agriculture 2lO. Oneneed not stop to wonder long which sort of reasoning _.- Koskenniemisor Buergenthal's ~ the dispossessed Palestinian farmers and civilians atthe heart of these cases would prefer, one that futilely condemned thefence as overreaching, or one that negotiated the tough humanitarianissues to reach, under the circumstances, a reasonable, tlexible solution.

236

218. See International Law: Cases and Materials, p. 1140 (Lori F. Dam­rosch, Louis Henkin and Richard Crawford Pugh, eds., 2001, 4th ed.).

219. See Joseph Lelyveld, "Interrogating Ourselves", NY Times Mag. 36,39(12 June 2005).

220. For the view that this hypothetical prejudges the outcome and isdesigned to justify more widespread use of torture, see Bellamy, "No Pain? NoGain 't", supra footnote 211. at pp. 145-146.

221. See Menand, Metaphysical Club, supra footnote 21, at pp. 177-195.

thought to be at stake. Even then, a strict international law analysis insistson torture's illegality, as it is an ostensibly jus cogens norm that is flatlynon-derogable-!", no matter if the trade-off between one person's severepain and the lives or severe pain of many took place with lOO per centcertainty.

The policy behind the jus cogens standard and the CAT is of course amost admirable one, and a certain vindication for the moral integrity ofthe formalist standard. Still, it is not obvious what is the particularnotion of the legal or policy good holding torture always and forever pro­hibited, besides the bootstrapped stilts of positivism. The practice simplycannot be condemned on moral utilitarian grounds if the trade-offbetween the torture of one person and the lives and limbs of manymore is certain, or on strict civil liberties grounds if security concerns areindeed urgent 219. The view might also be held that torture degradesus as a people, while visiting horrific pain on others.

Such ground for opposition to torture in all circumstances is entirelycompatible with a pragmatist viewpoint, but the method would alsorequire us to make more explicit the true costs and benefits involved. Foris not the pain and suffering of victims of terrorist attacks just as real asthe torture of a suspected terrorist? If one is sympathetic to the prospectof torture in a "ticking time bomb" scenario, whether immediate or inter­mediate, it is there we feel the rub: all such detainees are, and only canbe, suspected of knowledge. That is, of course, the context in whichtorture takes place - where the victim is believed, but not necessarilyknown, to have actionable intelligence 220.

Without the utmost assurances, perpetrating such a wrong cannot bejustified on the grounds of utilitarianism, nor on pragmatist grounds,which give all due weight to our socially conditioned moral sentimentsand notions of fundamental rights, as well as the experiential harm of"witnessing" the pain of torture. On a utilitarian conception of moralityand a pragmatist conception of law, however, one could base an absoluteprohibition of torture only on finding that our low levels of certainty asto torture's efficacy prevents us from resorting to it. This reasoningextends to possible justifications for torture under the necessity, self­defence and emergency exceptions as well. Either way, it comes down tothe question of probabilities, the science of uncertainty 221.

222. Designing an empirical study would be a difficult matter. One considera­tion is the expansiveness of the definition of torture. If a broad definitionapplies, then the results of efficacy might well be different than if a narroweronedoes. There is also the matter of self-selection in both cases, since extrememeasures are ex hypothesi more likely where there is reason to believe valuableintelligence really does exist.

223. James Glanz, "Torture Is Often a Temptation; And Almost NeverWorks", NY Times, 9 May 2004. ("Torture can make people talk - but experi­enced interrogators know that they usually can't tell if what the subject saysunder torture or humiliation is true. because the subject will say what he or shethinks will end the torture. Novice interrogators are seldom aware of how corn­promised information gained under duress is likely to be .. :')

224. Lelyveld, "Interrogating Ourselves", supra footnote 219, at p. 38.

239PRAGMATIC METHOD AND INTERNATIONAL LAW

One could well stop here, if greater certainty as to the lives "saved"were deemed from the start incommensurable or incalculable. As to thefirst, in commensurability if human pain and suffering is the bottom linevalue at stake, then we deal with the same subject matter and the suffer­ing of the tortured and the suffering of the victims is deemed equivalent,pound for pound. As to calculability, we would also be justified instopping if extrapolations of effects, and consequent line-drawing, aretoo speculative.

Such conclusions are understandable, but do not go as far as theymight to striking the proper balance-between physical coercion and life­saving, actionable intelligence, or towards convincing us that we'vestruck the best possible balance as it is - an unconvincing proposition.Pragmatism's consequentialisrn would also look to the impact of differentdefinitions in treating the problem it purports to solve, namely preventingtorture from occurring, or if exceptions are said to apply, then within cer­tain "bounds". It would, in short, grapple with the uncertainty at the heartof the issue and undertake an empirical investigation into the costs andconsequences of activity deemed to be unacceptable physical coercion,recognizing that different methods might have different effects, and thatspecific techniques will be more or less effective 222.

In doing so, we might well find support for the most convincingground for retaining a flat prohibition on torture: it doesn't work. That isindeed the position of various experienced interrogators 223. But a moreelaborate survey would be invaluable to making truly sensible decisionson physically coercive interrogations. If the prognosis is decidedlymixed, or in favour of a utilitarian gain using torture, the dilemma arisesof balancing the consideration with moral and reputational considerationsplaying a part in a macro-view cost-benefit analysis that takes intoaccount the imperative of winning hearts and minds in the war on terror.As one observer notes in this regard, even "the coldest cost-benefitcalculation, a dead detainee is a disaster: he cannot be a source of'actionable intelligence', only fury" 224.

PART I - CHAPTER 5238

241

CONCLUSION

PRAGMA:rIC METHOD AND INTERNATIONAL LAW

229. Richard A. Posner, "Torture, Terrorism, and Interrogation", in Torture:A Collection (Sanford Levinson, ed., 2(04).

Given the unprecedented practical and moral issuesraised by the struggle against terrorism, and the complex calibrationsof values and tactics required thereby, it is natural for the debate on anoptimal set of counter-terrorist policies to be highly charged. Issues suchas Israel's barrier fence, extraordinary renditions, torture, targetedkillings, the rights due "enemy combatants" elicit passionate defencesand attacks from well-meaning individuals across the political spectrum.Actors in the legal community constitute a (prominent) discursive sub­set in this debate, employing the language of the law to justify preferred

positions. As Judge Posner observes,

SECTION 7

acceptable if alternative means, such as trickery, bribery or threats notinvolving physical harm, could achieve the same ends. We cannot achievean optimal balance between security and human values by reactivelycondemning physically coercive interrogations out of hand, even thoughit is entirely reasonable and most likely desirable to maintain formally acomplete prohibition given the uncertainty of its efficacy and the cer­tainty of its horror P". Such a conclusion, even if reached via formalism,can still be entirely functionally pragmatic, in so far as it represents a

value enhanced in stature by its status as law.In matters such as the Barrier Wall case and coercive interrogations,

the pragmatic approach towards in'ternationallaw would grapple with theuncertainties and countervailing interests at the heart of the tensionbetween security and rights head on. It would allow for a range of empi­rical studies and policy options, including formal law and positivistanalyses where appropriate, to strike an appropriate balance in thismorally and mortally critical aspects of counter-terrorism. In doing so itwould hold no notion of positive international law as sacred, expand­ing the discipline's dimensions to account for analytical and multidisci­plinary methodologies that inform the practice of international law in theworld as it is, in a tentative yet hopeful step towards making it as wewant it to be. While Koskenniemi's vision may articulate that desire,without providing a meaningful way of achieving it, we will be left com­forted by an empty idealism alone, devoid of effect, and thus a betrayalof itself. Pragmatism in its dogged insistence on facts and consequencesdemands more, and urges observers, practitioners and subjects of inter-

national law to do the same.

CHAPTER 5PART I

225. Quoted in George Packer "Comment" N v k h. k I'·····, ew lor er at ttp ·/I,,,ruW»newy~r er;com talklcontentiarticles/060918ta talk packer (lss'ue of 91l8/200l$Lposte online 9/1112006; last visited 1 December ii106) ...

rel:=~~eA:O~~t~~r:~e~~int~I;~~rdCi~~n~utsourc.ing,g'igh turnover ratesnote 219. at pp. 67, 69. ' , errogatmg urselves", supra

(T~;~;12~~~~)C(;7c~i~le(e)O(/19g4ain6stsTorture in Israel et al. v. The State ot Israel":. , . ' epternber 1999

228. Lelyveld, "Interrogating Ourselves", supr~ footnote 219.

As Lieutenant General John (Jeff) Kimmons the A . df

. ff f" . . . , , rmy eputyo sta or intelligence recently explained,

"~o g~od intelligence is going to come from abusive practiI thl~k history tells us that. I think the empirical evidence oflast five years, hard years tells us that And m 'f" .."'" arcover, anypro tn~elhgenc~ which IS obtained under duress, through the ua.buslve t~chmque$, would be of questionable credibility, andationally It would do more harm 'than good when it inevitabe~ame known that abusive practices were used. And wedafford .to go there. Some of our most significant successes on tbattlefield have been - in fact, I would say all of th I'. Ii . em, amca~egon~a y all ~f them,. have accrued from expert interrogat~smg mixtures of authorized humane interrogation practiceg,cle~er ways that yo~ ":,,ould hope Americans would use them,push the envelope within the bookends of legal, moral, and enow. as further refined by this field manual. So we don'tabusive practices in there," 225

Lt. ?en. Kimmons's comments suggest that a significant level oftture results from of a lack of professionalism (perhaps a chargetshould extend up the chain of command with respect to that isslndee~, Israeli interrog~tors have long levelled such criticisms at~Am~n~an counterparts _26. The Israelis, of course, have by their dadmlss:on lo~~ practised harsh methods of interrogation, across the SIJtrum of definitions of torture. Yet since the Israeli Supreme Court foumany of the harshest methods unjustifiable and ordered th A.. lici .., e . rmyrevise Its po IC.les, dl~clphnar~ practices, and training 227. incidentst~rtur~ and thel: relative seventy have decreased, according to bothIsraeli hu~an rights organization B'Tselern, as well as the Palestini'Human RIghts Monitoring Group 228. •

. The comprehensive a~proa~h effectively mandated by the Israeli cospeaks t? anoth~r consideration in assessing terrorism's effectiveneidrawn ~Irectly fro~ formal policy analysis, namely the availabilityalternatives, Even If torture turns out to be effective, it would not

240

230. Posner, Overcoming Law, supra footnote 23, at p. 20.231. Kate Zernike, "Military Lawyers Urge Protections for Detainees", NY

Times, 14 July 2006.232. Posner, Problematics, supra footnote 22, at p. 7.

243PRAGMATIC METHOD AND iNTERNATIONAL LAW

too feeble to override either narrow self-interest or moral intuitions" 233,while the academic setting of moral philosophy provides few opportu­nities for real influence 234. The analogy to international law is obvious.

A progressive project cannot be reified employing "philosophical"tools such as positivism any more than moral theorizing can changemoral behaviours. The tools of formal international rules and institutionsmay serve important co-operative ends, but their form must follow, notlead, their function. It is the case, of course, that forms indeed have func­tion, and this must never be forgotten as Holmes reminds us, but thelodestar must ever be the former. So, it is that the pragmatic method, inintemationallaw no less than in science, philosophy and all walks of life,seeks to rebalance the calculus of analysis. As Rorty points out, "valuesare not defended philosophically; they are defended politically" m. Andit is a tenet of pragmatism that in policymaking, legal or otherwise, factscount.

Accordingly, a pragmatist agenda of international law would consistof research into the role law or norms play in transgovernmental, inter­organizational interaction. In doing so, such work would do well todraw on the immense, but largely untapped, literature on police co-opera­tion, specifically, and also On organizational theory, behaviouraleconomics and empirical analyses such as Hathaway's work on humanrights treaties. If it is true, for instance, that personal connections facili­tate co-operation and co-ordination 236, then it would be wise to look athow such connections can be forged, and whether they can, at themargin or otherwise, be an independent causal force in State co-operation.And if for such organizational connections it holds true that law is asubstitute for moral sentiment 237 , then attempts to appeal to such sensiti­vities may prove more effective than a formal, top-down impositionof order or protection of valued rights. It will not do, in other words,to extol the need for more treaties and for more co-operation without athoroughgoing look at why such treaties would help and how theymight be used in actual practice, and when we might wish our speciesof co-operation to remain rooted in the informal 238. A pragmatic concep-

233. Posner, Problematics, supra footnote 22, at p. 7.234. ibid.235. Schieder, "Pragmatism", supra footnote 14, at p. 684, citing Richard

Rorty.236. Otwin Marenin, "The Role of Bilateral Support for Police Reform Pro­

cesses: The Case of the United States", in Peacebuilding and Police Reform,pp. 93, lOS (Tor Tanke Holm and Espen Barth Bide, eds., 2(00).

237. Posner, Problematics, supra footnote 22, at p. 37.238. The US Congress wished to know about it whenever it arose, and so

passed the Case-Zabloki Act requiring executive agencies to tr~nsmi.t agr~e·ments they make to the Congress for review to r.emam ~b~ea~t of relationshipsbetween intelligence and enforcement communrues. 1 USC, § 1126.

CHAPTER 5PART I

"most lawyers, judges, and law professors still believe that demons:strably correct rather than merely plausible or reasonable answers to ...most legal questions, even very difficult and contentious ones, canbe found -- and it is imperative that they be found - by reasoningfrom authoritative texts, either legislative enactments ... or judicial>decisions, and therefore without recourse to the theories, data;insights, or empirical methods of the social sciences ... "230,

What is peculiar to much of this discourse is the ostensible neutrality.of the law; its ostensible objectivity provides a cover for otherwise"mere" political preference. Yet as we have seen, there can be no pur~

objectivity, not only because of the impossibility of precise deductivereasoning, but because initial premises are themselves arbitrary.

Positivist accounts of international law, as applicable to the war 011

terror and beyond, fall into this trap. While they do not necessarily foregopolicy considerations, these tend to be but a miniscule part of the anal~+

sis, and in any event are premised upon the notion that somehow a part1':cular conclusion is or would be meaningful in influencing behaviour•.That is not to say that positivistic analysis does not have its place; in th..trEU system, for instance, sui generis though it is, such exercises holdthe prospect of influencing supranational courts with real authority?over their subjects. Moreover, the universalistic, supposedly objectiveidea of "the law" may bolster domestic enforcement, either directly Or

indirectly, or perhaps both. When, for instance, US military lawyerspresent their case to Congress that policies strictly prohibiting the useof torture ought to be inserted in their field manuals, the language ofinternational law and the attendant considerations encapsulated therein,may be a persuasive toot?".

More often, however, the persuasive force is taken for granted, sub"sumed in layer upon layer of legal reasoning premised on ideas ofsecondary rules and binding obligation that are autonomous fromthe real world contexts and functions of international law. The various"tools" of international law - analyses, treaties, resolutions, treatises,exegeses of custom - can really mean anything only in so far as theyhave an impact, even if remote, on State or private behaviour.

One cannot determine this, however, by relying on the law alone. Theformalistic, positivist approach recalls Posner's critique of "academicmoralism", in "having no prospect of improving human behavior" 232,

The analytic tools of that field, including casuistry, text and critique "are

242

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tion of international Iaw in the war on terror would be neither apologeticnor dogmatic in its defence or prosecution of various strategies anqtactics.

For "pragmatism has no inherent political valence" 2~\9. It doesitself defend pre-emption, targeted killings, torture etc. Yet neitherit condemn them categorically because even given their relm~:nalrtcej..alternatives may sometimes be even worse. That is why, in the end,empirical, interdisciplinary and instrumental efforts that the pnlgt1nat:i~i

method champions are so vital, both as a prerequisite to an effectivepolicy and as a means to a safer, fairer world.

244