What are we really securing and for whom?

The Centre's most recent symposium on "Securing humanity: perspectives from international law" was a true success both from an academic legal and a humanistic perspective. The discussions reverberated in the audience's emotional impulses and successfully preserved a healthy tension and density in the air as an additional speaker commenced with their discourse.

Most interestingly, however, was the capturing discussion that was developed surrounding the question of "us" and "them", another way for dualizing the system and basing it on the preconceived premise that 'divisions' are innate and inherent and colonialism and dominion is inseperable from the ways of mankind. Instead of allowing us to conceptualize our ends and develop upon the means (lamenting to enter the ontological discussion that lurks into and within this discourse), it dooms us to dystopia (as the esteemed scholar amongst us mentioned) and is a further self-limiting, self-justificatory, exercise.

After a series of self-sufficient, but despite this, interdependent dialogues, the second panel presented two speakers who were able to ground the discussion in the pragmatic case studies of the operability of the law on the international platform. International Criminal law and International Human Rights applicable in the context of asylum and immigration law on the International, regional, but particularly, national arenas, have shown (undertaking a very trivial analysis) that international law has tripped over itself a number of times and continues to do so.

The nature of the doctrine of Universal Jurisdiction has been curtailed by the sovereignty of states, and the fully justified right to invoke State Responsibility under the secondary rules of international law has analogously been negated by the flaccid rules on Individual responsibility that, as a result of the non-concurrence of the two, allow for the preservation of state impunity in the most appalling cases.

On the other hand, UK Immigration law has become a true cesspool breeding creatively mechanisms to allow for the furtherance of human rights violations. We mentioned the deprivation of asylum seekers from social services and the complete and utter disregard for the principle of the Universality of human rights and the application of fundamental human rights to non-nationals (leaving only a very limited and restrictive margin of appreciation to the state). But where does "security" come in?

Have we not by choosing this course of conduct asserted that we are choosing "our" security over theirs (even though it may only be a question of racism and sterility of the more conservative, but nonetheless dominant, parts of society)? We could even see "security" as a means for protecting our societies from those that try to bring them down, in the very direct sense of the word, advocating actively for border security policies and the drastic cut-down in the number of migrants allowed in, by all means possible. This would bring us even further into the discussion of security and human rights and the questioning of whose human rights would we prioritize when push comes to shove. The present author boldly and brutally asserts: "ours!" If it ever came down to a clash between Article 3 ECHR (prohibition of torture) rights to a potential terrorist (who is likely to be tortured and persecuted if removed to his country of origin) and Article 2 ECHR (right to life) rights to the London tube riders, we can all foresee the likely outcome.

So we had established, superficially, that international law does not, because more likely it cannot, accomodate "humanity". Why? This very naive question can only be answered with another: What is "humanity"? What is the "accomodation" (to what extent and for whom)? This brings us back to the basic premise that it is almost always our "humanity" over theirs or vice versa. The often-neglected truth is that the "good life" (in all of its ingredients) is not an ever expanding cake; it is conclusively finite and its parameters are clearly conceivable.

We had awakened our chronic sense of disillusionment with the international legal order, and then confirmed it with a sense of striking but familiar data, and still, some of us continue to comfortably resign to sinking back into the self-justificatory exercise that we recognized, conceptualised and negated to begin with (a good example: what are we doing with the UN if we know what we are doing and we know what it is like?)

We may want to leave ourselves with a set of basic existential contemplations (whether individual or communitarian): Has our innocence been lost to such a profound degree that there is no way back out of the abyss? Has individualism (in the white, western sense) negated the very pure view of the role of the law in society? Has the international legal order become a prophesy that has brain-washed some, intensely convinced a large group of others, whilst left the rest in a state of unfathomable irritation?

Who Is Defending the Rule of Law?

General Musharraf's murderous thugs are pictured beating the lawyers who are refusing to accept his usurpation of power. Right now they and the judges refusing to take new oaths of allegiance to a corrupt and illegitimate regime are the only defence to the total abandonment of the rule of law.

Pakistan's coup d'etat demonstrates a cavalier attitude to the rule of law, which is the only barrier to authoritarianism, even dictatorship. While Pakistan's move towards democracy has been hesitant at best given its virtual enslavement to the 22 high echelon families, it did possess a constitution, a legal system, an active legal profession, and a respected judiciary.

Now we find because the Supreme Court was about to carry out its mandate and declare Musharraf ineligible for election, he's grabbed power and tried to immobilize the only group that has the strength to resist him. I can't imagine lawyers in this country or the United States taking similar action. I do applaud the lawyers in Pakistan.

Finally, I'm ashamed of my government and that of the US for condoning these actions. This leaves Pakistan's lawyers on their own as the sole defenders of the rule of law.

Causation is a cosy state of mind

To assume causation as a possible explanatory avenue is a cosy state of mind indeed, and it is in the interest of existing structures to maintain such cosiness. The variety of perspectives through which a situation can be observed leads one progressively to replace objective causation with other forms of connection. Thus, attribution, parallel distance, asymmetry etc are ways that currently float about, with the important feature of being uniquely incapable of replacing every other perspective and offer an adequate description of unity.

In such a draughty attributional format, where one observes causation without the possibility of conclusive proof, the one thing that international politics can do is abandon the theorisation of a hierarchical causal structure, its parts connected through direct control or even influence, and accept the multiplicity of differentiated realities. This can only mean that, however close one looks into causation, one can only come up with an attribution and this is all right. A reconceptualisation of distance, both in terms of causation and in terms of physicality, as the necessary enabler of development (in the evolutionary rather than the growth-targeting sense) is becoming increasingly more apparent in the international financial markets, where unpredictability (in the sense of perspectival cognitive isolation) is precisely the driving force behind the market itself.

What is more worrying is the public attribution of consequences to such a drive. In other words, and to put it in a slightly (certainly not radically) different parlance, does legitimacy need causation? And if so, is legitimacy a cosy state of mind too?

Indexicals, Causation and Regulation

The Philosophy Department at York University has been holding a series of seminars on causation. The fascinating element of them is that they bring together a collection of scholars who would not normally talk to each other. At the most recent (31 October 2007) Huw Price from Sydney University gave a paper on indexicals and causation to a group consisting of philosophers, computer scientist, ecologists, lawyers, and demographers. (See for example this paper.)

Rather than accepting causation as an ex ante objective state of affairs to be evaluated, Price argued that indexicals (I, you, here, there, now...) determine how causation will be assessed. The standpoint/perspective one adopts will affect the characterization. This should allow us to assess action and non-action.

My query is how does this operate within the recent global liquidity crisis in financial markets. From the perspective of the central banker, we could say that the US (although the progenitor of the crisis) has begun to handle the situation competently through the market manipulations of the Federal Reserve. Similarly, the European Central Bank and the Bundesbank in Germany have mounted rescue operations that have kept markets moving. And in the case of Germany rescued two minor banks, IKB and Sachsen LB, from their subprime morass. None of these banks caused the crisis.

But when we examine the UK, the situation is so different. The Bank of England and Northern Rock should have been a partnership that was quietly consummated without the public being aware. Yet, it was a disaster. Did the Bank of England cause the collapse of Northern Rock? It came close to doing so, and its subsequent actions have hardly inspired confidence.

I have mentioned before that prior to the tri-partite regulatory scheme adopted by the government, the Bank of England was able to coerce gently institutions into mounting rescues through the London Approach procedure. It was informal and private. And it worked. The Bank can't do this now. Partly it's the regulatory apparatus and partly it's the burgeoning array of financial players who won't always abide by the threat of the governor's eyebrows being raised.

Globalization is forcing financial regulators to assess how they handle complex financial instruments such as collateralized debt obligations, to what extent they can rely on private regulation through the credit rating agencies, and more fundamentally whether in fact they can do anything at all.

To this end the Securities and Exchange Commission (SEC) is considering establishing its first office outside the USA in 73 years. It could be London or Brussels. It is, however, a welcome move because one thing sociology has taught us is that no matter how much communication takes place vicariously through email, video links, etc, there is a fundamental compulsion to proximity ("comprox") that impels us to meet and talk face to face. (See eg. this discussion on the handshake and this paper on travel.) Perhaps this is the time to have a proper and sustained global regulatory dialogue.

Welcome Note!

Dear Bloggers and prospective Commentators,

The Westminster International Law and Theory Centre is happy to present the World Wide Web with its new blog and hopes, in short, that it will provide for a breeding ground for fruitful and provocative discussions on the current intricacies of international law and theory from a myriad of perspectives and angles, both theory and practice oriented.

We have chosen 'Non-Liquet' as a name as this is the best statement about international law and theory at the present juncture: no firm findings, no certainties, unstable terrains and leaky boundaries.

We hope that this will become a playground both for faculty affiliated with the centre and other contributors, academic and practitioners alike, to engage in vibrant discussions on some of the most intriguing and contraversial topics that occupy the changing frontiers of the international legal order.

For any information about the centre or the blog please contact its directors Andreas Philippopoulos-Mihalopoulos (andreaspm@westminster.ac.uk), and Julia Chryssostalis (j.chryssostalis@wmin.ac.uk).