Three International Law Professors, Tied Together by the Moral Urgency to Redeem the World from Ethnic Conflict

Nanda and Wedgwood
Professor Ruth Wedgwood, the 2013 Myres S. McDougal Distinguished Lecturer, and Professor Ved Nanda

Professor Ruth Wedgwood’s Keynote Speech –“Human Security and the Tradition of  Myres McDougal” at the 2012 Regional Conference of the American Branch of the International Law Association, held at the Sturm College of Law

DU’s Sturm College of Law was honored to receive Professor Ruth Wedgwood as the keynote speaker for the International Law and Human Security in the 21st Century Conference, held here on March 2, 2013. Human Security was chosen as a timely topic for the 2012 Regional Conference of the American Branch of the International Law Association (ABILA).

Nanda and Wedgwood
Professor Ruth Wedgwood, the 2013 Myres S. McDougal Distinguished Lecturer, and Professor Ved Nanda

Professor Wedgwood is the Edward B. Burling Professor of International Law and Diplomacy and Director of the International Law and Organizations Program at Johns Hopkins University.  She currently serves as President of the American Branch of the International Law Association.  Among her many accolades, she has worked to support the realization of human security as U.S. member of the United Nations Human Rights Committee in Geneva, calling on countries to meet the standards of the International Covenant on Civil and Political Rights.  She was director of the Council on Foreign Relations Ford Foundation program on international law and organizations, convening a diplomatic roundtable of U.N. ambassadors, senior U.N. staff, NGO’s, and corporate leaders to address security crises and post-conflict reconstruction in areas such as Bosnia, Rwanda and Kosovo.  With an insider’s understanding of the politics and protocols of the U.N., she  was able to suggest how one can improve U.N. performance in realizing human rights and human security, a goal that  reflects the spirit of Myres McDougal.

Myres McDougal–the aftermath of World War II

Myres S. McDougal
Myres S. McDougal

Myres S. McDougal, or “Mac” to those who knew him, was a professor of international law at Yale Law School from 1934-1998. Our very own Professor Ved Nanda was one of his most prominent protégés, and the legacy is carried on through the McDougal lecture at Sturm College of Law.  McDougal’s greatest legacy, however, is his contribution to international law and theory on a global scale. Yale at the time was an intellectual center of the New Deal, with scholars such as Jerome Frank.  They were tired of the purely doctrinal way of teaching law and believed that one should look at law on the ground.  As Karl Llewellyn taught, the ambit of view must include the law as practiced, law on the street, law for poor people, not confined to the abstract rules recited in a black book.  Harold Lasswell , who was a sociologist and psychologist, was also influential at the time.

McDougal saw his role as restoring a workable international order after World War II.  As Professor Wedgwood noted, in a sense, he systematized pragmatism –pushing for law to be a subtle mixture of positive rule and moral aspiration.  He emphasized that “the global public order of human dignity” should undergird any legal system.  His goal was to create a universal language for such an inquiry. Americans are pragmatic by nature, we reason from example, we don’t like rules, we like practice, we are folksy lawyers, we remember, if only instinctively, the time when the dockets of law and equity were fused.  McDougal captured what was best about American pragmatism and generalized it for an international audience. He was trying to liberate international students by showing them that they didn’t just have to recite black letter texts–even though European students still sit in a large classroom and listen to professors reading their treatises. McDougal was also fighting the cult of positivism –the claim that law is whatever the sovereign directs, the rules you read in a book. There has always been a debate about when to attempt codification of a legal system –and McDougal argued that codification was never a good idea, that the law would never be settled, that it was made and remade constantly, that it assessed what went right and wrong with moral challenges. McDougal believed that it is good to craft a language that would describe the process, but not to “patent the product.”  As Professor Wedgwood suggests,  he was also warning of the worst side of a purely positivist conception of law – namely, the acceptance in Nazi Germany of a fascistic and racialist positivism, and the imposition of the law of party rule in Communist Russia and Eastern Europe. He was simultaneously fighting a retrospective war against American isolationism. He adopted a slightly artificial vocabulary–some American students had a hard time grappling with it, talking in an abstract way about American law–but he was addressing himself to an international audience as well and trying to avoid parochialism.

The Tradition of Myres McDougal–post Cold War international law

Professor Wedgwood described her own discovery of the “participant anthropology” of international law and politics at the United Nations.  The procedures of the United Nations as described in the Charter often do not reflect the political drivers of its decisions, much less the role of the regional groups and Cold War caucuses that have often governed its decisions.  The U.N. was a particular disappointment in its failure to respond adequately to the bloodshed in Bosnia and Rwanda.  Professor Wedgwood noted a dilemma of liberal societies – that that when there is a cosmopolitan mixture of groups and beliefs, the introduction of ethnic or ideological conflict can lead to particular brutality.  If Croats and Serbs and Muslims are at war with each other, one may doubt the friendship even of a neighbor. He may have been your friend, but then he’s frightened of you, or compelled by his compatriots.  Integrated communities can become the most dangerous when conflict reaches a tipping point, as neighbor doubts neighbor, and groups self-segregate through violence.  The examples of the partition of India and Pakistan and the conflicts in Bosnia and Croatia reflected this process. The profound aspirations of international law scholars in the period after World War II reflected the nature of these tragedies.  Indeed, Professor Nanda’s own life history, as a scholar and ethicist in international law, is no doubt founded in part on his own family’s experience of the partition in India and Pakistan.

Professor Wedgwood also discussed the application of McDougal’s philosophy of international law since the end of the Cold War.  With the collapse of the Soviet Union, Security Council action has no longer faced an automatic veto by Russia or China.  There was the hope that the U.N. would rise to the level of effective governance that was once supposed in 1945.  But then Bosnia and Rwanda happened. Countries proved to be reluctant to take part in peacekeeping missions.  Peacekeepers were instructed to report and retreat –to distribute food but not to prevent ethnic killing. In Rwanda, U.N. peacekeeping troops were withdrawn as soon as the real fighting began, and the U.S. said it would veto any new mission for peacekeepers amidst the genocide, even if the peacekeeping force could be reconstituted by other countries without United States participation. Over time, many U.N. members have become more skeptical of the efficacy of outside intervention in difficult missions with no seeming end, and opinion is still divided.

To be sure, there is room for some interpretive latitude in international law. Peacekeeping wasn’t discussed in the framing of the U.N. Charter –rather, Secretary General Dag Hammarskjold saw a need and filled it.  As the saying goes, peacekeeping is authorized by “Chapter 6 ½” of the U.N. Charter – in other words, somewhere between the conciliatory methods of Chapter 6 and the coercive methods of Chapter 7.  It makes sense, so we read it into the text.

The international community has also ‘reread’ Chapter 7 in defining what is a a threat to international peace and security.  One could have read it to be just about world wars or international wars –Germany invading France, or Stalin sending troops into Hungary. . But in the 1990s, the looming challenge was ethnic fighting in countries that were collapsing. Quelling the violence of ethnic conflict seemed morally compelling, and so the interpretive reach of Chapter 7 was expanded. In addition, the diffidence of some Security Council members, such as China, was accommodated by procedural innovations.  Since 1945, the abstention of a member of the Permanent Five powers in the Security Council has been read to qualify as the required  “concurrence” under the U.N. Charter.  Hence, even when China did not wish to authorize the use of force, it might be content to abstain.  So, too, in the 1990’s, China’s views were accommodated by greater specificity in resolutions, indicating what particular part of a mission might be authorized under Chapter 7 – a practice fondly deemed “Chinese Chapter 7”.

And then there’s R2P – the “Responsibility to Protect.” The power of the idea may disguise the fact that its legal grounding is less certain. It was a phrase coined in 2001 by a ”high level panel” of retired statesmen and stateswomen — “elegant formers” –assembled by Secretary General Kofi Annan, including the former Secretary General of the Arab League and other notables.  The High Level panel concluded that states have a duty to protect civilians against violence and depredation – including states acting collectively – and reflects the elegiac speech of regret delivered by the former Secretary General to the General Assembly in 1999.  Mr Annan put the dilemma to the members of the General Assembly in the aftermath of Rwanda — what if the international community faced again an emergency situation and the question of how to prevent a genocide, but could not win a political resolution of authorization for the use of armed force from the Security Council.   As Secretary General Annan asked, if tens of thousands of lives were at stake but the Council was deadlocked, what should one do?  Could a state provide rescue without formal legal permission?  Mr. Annan left it as a pilgrim’s question to the wise man, but in a sense he answered it by asking the question.  It might be within the realm of moral possibility to intervene, even if the formal text of authorization was lacking.

The Legacy of Myres McDougal–the future of international law

Ruth Wedgwood
Professor Ruth Wedgwood of Johns Hopkins. DU Law’s 2013 Myres S. McDougal Distinguished Lecturer

Professor Wedgwood commented on her family’s own legacy in the American labor movement, in particular, the history of the International Ladies Garment Workers Union, for which her father was general counsel from 1947 to 1992.  In the early days of the garment industry in New York City, the 1911 “Triangle Fire” presented a clear moral challenge to people of conscience and changed American politics.  In the Triangle Fire, dozens of young women laboring in a sweatshop were forced to jump to their deaths from a locked factory building which lacked fire escapes, while police and firemen stood by helplessly. That scandal pushed the passage of safety legislation and the growth of the American labor movement.  Now we operate in a global supply chain, where garments are produced in South Asia in the cheapest available locale, moving from Sri Lanka to Bangladesh to Myanmar. The ability to monitor the decency of working conditions is challenged by the shifting array of hundreds of subcontractors, the corruption of local policing, and the emphasis on cost minimization by American importers – although the Congress retains a political instrument in its regulation of preferential tariffs for imports. Professor Wedgwood believes the global supply chain will be a real challenge for our moral presence abroad going forward, and corporations and industry in general  will  have to consider more seriously how to provided minimum safeguards while remaining competitive.

Professor Wedgwood also discussed how the United Nations could be more forthright in meeting its own standards of responsible conduct. The United Nations’ International Law Commission – a standing organ that meets each summer in Geneva to work on draft treaties and restatements of customary law ­– has recently finished a statement of principles of “responsibility” for international organizations – parallel to its earlier work on principles of state responsibility.  Yet no sooner was this work completed in 2012, than one saw a startling evasion of responsibility in U.N. peacekeeping – for the United Nations summarily refused to address claims for compensation made by the victims of a cholera epidemic in Haiti whose origin apparently lay with international peacekeepers deployed to the island without adequate prior medical testing.  The United Nations is a poor teacher when it refuses to abide by its own standards.

Finally, Professor Wedgwood discussed some of the peculiarities of decision-making in the United Nations.  The persistence of caucuses and regional groups means that crucial meetings are often closed to others, and the decision of the General Assembly is often determined before it convenes.  It would be helpful to allow observers in regional caucuses and groups.  In addition, there is the practice of taking decisions by “consensus” rather than formal votes.  The chair of a U.N. caucus or group may exercise surprising influence by characterizing an emerging consensus (or claiming one to exist) – and announcing that it will carry the day unless objection is heard.  This often discourages dissent, since countries rely upon the backing of their regional or ideological group for a host of benefits, including candidacies for U.N. organs, staff hiring, and other resolutions.  It is a socially dense process–but we need to understand it in order to engage more effectively in U.N. politics.  The idea of a Community of Democracies within the United Nations – as an alternative to traditional regional and Cold War groupings – is one way to champion a more open debate within the organization.

Myres McDougal understood that international law is not a “read-only” phenomenon.  Its development requires moral, political, and personal skill–learning how to talk to a variety of states and regional groups, understanding their ambitions and constraints, knowing that principles can develop over time and that winning the support of key individuals can be decisive.  A diplomat at the United Nations may need to be a skilled conductor of the orchestra of politics, using persuasion, political seduction, the accommodation of personal ambition, and high principle to achieve a worthy result.

The U.N. bookshop used to sell a small and humorous book, published in French.  Its title, rendered in English, was “What do diplomats do between cocktails?”   In one sense, the answer is nothing–for cocktails are the point. “Cocktails” – read as a broad category of discursive persuasion–provide a chance  to beguile, cajole, persuade, ask for a vote as a small indulgence,  just this once, could you, please?   As Myres McDougal sensed, shaping international law is as much a sociological undertaking, as a formal legal exercise.  It’s an art form, an exercise of personality, persuasion, seduction, making it possible for people to survive politically and do what’s right.  It calls for every human capacity of eloquence, friendship, moral lucidity, and counting heads.  As such, it is an exercise in which lawyers–the lawyers who know how persuade friends and foes–have a natural calling.

Jaime Menegus is a second year law student at DU Law, a Vice President of DU’s International Law Society, and a Staff Editor on the Denver Journal of International Law & Policy.