Between 1817 and 1871, bilateral treaties between Britain and several other countries (eventually including the United States) led to the establishment of international courts for the suppression of the slave trade. Though all but forgotten today, these anti-slavery courts were the first international human rights courts. They were made up of judges from different countries. They sat on a permanent, continuing basis and applied international law. They were explicitly aimed at promoting humanitarian objectives. Over the lifespan of the treaties, the courts heard more than 600 cases and freed almost 80,000 slaves found aboard illegal slave trading vessels. During their peak years of operation, the courts heard cases that may have involved as many as one out of every four or five ships involved in the trans-Atlantic slave trade.
These international anti-slavery courts have been given scant attention by historians, and have been almost completely ignored by legal scholars. Most legal scholars view international courts and international human rights law as largely a post-World War II phenomenon, with the Nuremberg trials of the Nazi war criminals as the seminal moment in the turn to international law as a mechanism for protecting individual rights. But in fact, contrary to the conventional wisdom, the nineteenth century slavery abolition movement was the first successful international human rights campaign, and international treaties and courts were its central features.
In addition to being of intrinsic historical interest, the story of the anti-slavery courts has important implications for contemporary issues in international law. The history of the anti-slavery courts reveals a more complex interrelationship between state power, moral ideas, and domestic and international legal institutions than many contemporary theories of international law and relations acknowledge. Moreover, the anti-slavery movement's use of international law and legal institutions as part of a broader social, political and military strategy can help us better understand the potential role of international law today in bringing about improvements in human rights.
Saturday, May 12, 2007
This article attempts to identify and clarify what is genuinely new about the asserted “new paradigm” of armed conflict after the attacks of September 11, 2001, relative to international humanitarian law (IHL). Assuming that sound policy rationales counsel treating certain aspects of the global struggle against modern transnational terrorist networks within the legal rubric of war, it stresses that the principal challenge that such networks pose for IHL is that they require IHL, somewhat incongruously, to graft conventions - in both the formal and informal senses of that word - onto an unconventional form of organized violence in a context in which one diffuse “party” to the conflict both (i) repudiates a predicate axiom of IHL and (ii) exhibits an organizational structure at odds with the one presupposed by the inherited conventions of war.
In particular, modern transnational terrorist networks, by contrast to the non-state actors of concern to IHL in the past (e.g., franc-tireurs, insurgents, national liberation movements), characteristically repudiate the conventional, “amoral” conception of non-combatant immunity - and the triad of core IHL principles: necessity, proportionality, and distinction - that follow from it. Furthermore, their diffuse, decentralized, network structure - by contrast to the hierarchical, linear structure of professional state armies and cognate “private armies” of past eras - makes them structurally ill suited to IHL compliance. It also renders the principal historical mechanisms by which state neutralized threats from non-state actors - deterrence and negotiation - frequently ineffective. Coupled with the increasing availability of catastrophic weapons on illicit markets, these features of modern transnational terrorist networks vastly complicate efforts to adapt and revise the inherited war convention to address contemporary circumstances - a periodic ritual that has followed major wars and crises since the advent of modern IHL in the nineteenth century.
For these reasons, IHL must begin to work out the contours of a “voluntarist” war convention to govern what is likely to be a prolonged state of episodic armed conflict with this particular genre of twenty-first century non-state actor. The conventional regimes governing internal and international armed conflicts should be augmented - but not, in my judgment, displaced - by conventions designed for what may be characterized as transnational armed conflict. Several factors, however, counsel Burkean caution and multilateral deliberation before introducing innovations: the continuing vitality of certain instrumentalist rationales for IHL, IHL's synergy with international human rights law, and the manifest potential for abuse. I therefore conclude that, in the meantime, (i) any proposed modifications to IHL should be incremental, transparent, and tentative, subject to revision as the genuine scope of military necessity becomes clear; (ii) the burden of persuasion should be on those who urge such modifications; and (iii) insofar as existing law does not clearly govern, sound policy rationales nonetheless continue to commend adherence to the core precepts of the inherited conventions of war.
The world is moving so quickly - globalization of trade, terrorist attacks, global warming, preemptive invasions, international courts springing up around the globe - and the law necessarily changes to keep up with it. No one can keep abreast of the ever-evolving face of international law, much less pause and reflect on how these developments affect the way we teach and write about it.
This is the first AALS Mid-Year Conference on Teaching International Law in 11 years. It will bring together teachers and scholars for three days of intensive discussion on how we teach and write about international law and where the field is heading. There will be plenary sessions, small group discussions, and paper resentations. The panelists, drawn from the most highly respected scholars in their arious fields, will be around for the entire conference, enabling conversations to ontinue long after the formal discussions have ended.
We will start by asking - not ourselves but other scholars - “What is wrong with what we do?” The opening panel will look at international law teaching and scholarship from the outside - economics, sociology, political science, literature - and offer critiques on its academic value. Other panels will critique international law scholarship from a variety of perspectives, consider the future of the core international curriculum in the face of increasing specialization, and discuss the teaching of ethics and the ethics of teaching international law, especially in clinical settings.
Teachers of other subjects can benefit as well. The internationalization of the legal profession has reached the classroom. Globalizing the law school curriculum has meant not only adding courses and specializations in international law, but adding international and comparative components to core subjects or, even better, approaching them from a wider perspective. More and more, international law is becoming relevant to domestic law as Congress and agencies enact legislation and regulations implementing international obligations, as domestic law must reflect the reality that it is applied more and more in transnational contexts. It is becoming harder to find a field of trade or legal practice unaffected by international commerce, foreign competition law, and international financial and trade regulation. An intensive exchange with international legal teachers and scholars will suggest ways of incorporating international law - or insights gleaned from it - into other courses.
Transitional justice in post-conflict societies is increasingly no longer a matter of domestic law and politics. Over the past ten years, new institutions of international criminal law such as the International Criminal Court, states exercising universal jurisdiction, and international or hybrid criminal tribunals have transformed transitional justice into transnational justice. Has the transnationalization of post-conflict justice been a positive contribution for states seeking post-conflict recovery and retroactive justice? Are new transnational courts contributing to, or hindering, peace-making and democratic transition?
The conference is an international gathering of experts from law, international relations, political theory, and international NGOs. Topics include the legal and political role of international courts, the status of national amnesties in international criminal law, interstate relations and the uses of power in international law, and local justice and international criminal codes.