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Published online by Cambridge University Press: 09 March 2016
This article argues that there is an increasing trend of civil society resorting to civil disobedience in relation to international legal values. International law, however, has not caught up with this trend. In fact, both international law and civil disobedience can gain much from a better understanding of their interaction. The article briefly traces the record of arguments drawn from international law in civil disobedience cases, highlights the theoretical constraints of the debate, and seeks to establish some basic foundations for an international legal theory of legitimate civil disobedience.
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5 For example, the classical moral theory dilemma is whether there is a moral obligation to obey/disobey the law. The question is often raised as if the law itself had little interesting to say on the issue, except presumably the stubborn assertion that it is binding.
6 For example, many books on civil disobedience do not mention international law once. Bedau, H.A., Civil Disobedience in Focus (New York: Routledge, 1991).CrossRefGoogle Scholar The vast majority of writings on civil disobedience come from the United States where, for all the occasional references to international law, the debate remains dominated either by domestic political theory or domestic constitutional concerns. In particular, the treatment of civil disobedience in political theory typically emphasizes the nature of the problem in, to use Rawls’s expression, “the special case of a nearly just society.” Rawls, J., A Theory of Justice (Cambridge, MA: Belknap Press, 1999) at 319 Google Scholar; see also, Dworkin, R.M., A Matter of Principle (Oxford: Oxford University Press, 1986) at 105.Google Scholar Dworkin defines civil disobedience as not “challenging the legitimacy of the government or of the dimensions of the political community.” However, that is arguably what many civil disobeyers have done, and it does not seem crucial to a proper understanding of civil disobedience that they do not.
7 This article is part of a larger project funded by the Social Sciences and Humanities Research Council to critically re-examine a neglected tradition of “resistance” in international law, in order to recapture some of international law’s subversive potential, whose emphasis is, to use the expression of Balakrishna Rajagopal, on the construction of “international law from below.”
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9 International law, particularly international human rights law, has had considerable things to say on the latter, protecting as it does such key civil and political rights as freedom of expression or freedom of assembly as well as various provisions protecting the integrity and freedom of individuals. In other words, the state is not at liberty to prohibit or frustrate a number of manifestations of political dissent.
10 The debates on conscientious objection, and “conscience-inspired” civil disobedience are sometimes unhelpfully confused. The former is not really a transformative, as much as a privacy-based, claim; the latter considers that it is not enough to be part of something, she also wants that something changed for her conscience to be assuaged.
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53 The reverse is of course also true — although less interesting for the purposes of this article — in that civil disobedience distorts, or at least purports to distort, the common law defence of necessity. See United States v. Schoon, 971 F.2d at 199 (1992).
54 The exception are a few European Court of Human Rights cases related to civil disobedience, in which the court re-qualified the purported disobedience as being, in fact, an exercise in a legitimate freedom of expression. Since it was not for the state to punish the conduct in question in the first place, the issue of civil disobedience did not truly arise in any strong sense. See case of Irfan Temel and others v. Turkey (2009), Application no. 36458/02, Judgment, 3 March 2009, European Court of Human Rights <http://www.echr.coe.int>.
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76 Dworkin, supra note 6 at 112.
77 Bauer, S.M. and Eckerstrom, P.J., “The State Made Me Do It: The Applicability of the Necessity Defense to Civil Disobedience” (1986) 39 Stan. L. Rev. 1173 at 1176, n. 1117.CrossRefGoogle Scholar
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90 This is consonant, at least in the common law, with the quite central idea that one cannot commit crimes by omission except in cases where a prior duty to act exists. This duty to act is typically a function of a higher degree of responsibility imposed in certain cases, in the case of the military a higher capacity to provoke harm.
91 See, for example, United States v. Montgomery, 772 F.2d 733 (11th Cir. 1985).
92 In State v. Marley, 54 Haw. 450, 509 P.2d (1973), the court dismissed as “frivolous any contention that (the defendants) were legally obligated to act to avoid criminal liability” under Nuremberg principles.
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98 See “Captain Paul Watson Responds to the Director-General of the Japanese Institute of Cetacean Research,” Sea Sheppard News (27 December 2005), <http://www.seashepherd.org/news-and-media/news-051227-1.html>. As it happens, the argument is sketchy at best from a legal positive point of view. The provision invoked — section 21 — of the Charter is merely a standard reference to the fact that non-state entities “to the extent that they are able … shall” implement relevant provisions. In addition, the Charter is really only a soft law argument. However, merely pointing out the unorthodoxy of Captain Watson’s sort of reasoning would miss the point, in that this agency is claimed even if it is not actually conferred by international law. UN General Assembly, World Charter for Nature, Doc. A/Res/37/7 (28 October 1982),
99 Boyle, supra note 83 at 41.
100 There is obviously an old tradition in international law that has defended this point of view, most notably in France with the likes of Duguit and Scelle. Inter-estingly, Duguit also considered that there were significant limits to obedience to unjust laws. See Hiez, D., La désobéissance civile: Approches politiques et juridiques (Villeneuve-d’Ascq: Presses universitaires du Septentrion, 2008) at 59.Google Scholar
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102 It is interesting in this respect to reflect on the fact that the idea of erga omnes norms is often framed as being that the violation of certain norms “shocks the conscience of humanity.” The fact that the expression “humanity” is used suggests that something more is at stake than states being “shocked.”
103 Franck, supra note 1 at 11.
104 The issue of the moral authority of the state to govern is, probably much more than in international law, a central concern in political and moral theory. See Copp, D., “The Idea of a Legitimate State” (1999) Philosophy and Public Affairs 3 CrossRefGoogle Scholar; Wellman, C.H. and Simmons, A.J., Is There a Duty to Obey the Law? (Cambridge: Cambridge University Press, 2005).CrossRefGoogle Scholar
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107 Agenda Item 61, UN GAOR, 5th Sess., UN Doc. A/AC.38/L.21 (1950) at 6 (Annexes): “[A]government … should be recognized if that government … has the obedience of the bulk of the population of that territory in such a way that this control, authority, and obedience appear to be of a permanent character”).
108 See, for example, the Convention on Duties and Rights of States in the Event of Civil Strive, 10 February 1928, 134 L.N.T.S. 45 (entered into force 21 May 1928).
109 It should be noted in passing, though, that international law’s increasing proclivity to reflect on the legitimacy of domestic systems may also provide arguments against civil disobedience — for example, when it considers that a state is legitimate domestically and finds little cause to resort to extreme tactics.
110 Goodin, R.E., “Toward an International Rule of Law: Distinguishing International Law-Breakers from Would-be Law-Makers” (2005) 9(1) Journal of Ethics 225.CrossRefGoogle Scholar
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113 Of course, the domestic system defined by the state is in a sense exactly the contrary of a decentralized system, and, under normal conditions, its constituent parts (individuals, citizens) are characteristically not supposed to “take the law in their own hands.” However, if this system is fundamentally unjust and in contravention of fundamental international norms, one can argue that the domestic legal order either dissolves or is sidelined by international law, so that the individual finds herself as a sort of newfound depository of international personhood. The civil disobeyer thus operates in a decentralized system, left vacant by the waning of a fundamentally “unjust” domestic order.
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115 In addition, one should probably add a non-criterion, which is the issue of whether the state laws/policy involved are either domestic or international. I think that should be largely irrelevant if the laws/policies involved actually intersect with any of the listed criteria. Although civil disobedience will often be primarily geared towards domestic decisions, it may very well target the state’s foreign policy or, more likely, a mix of domestic and foreign policies (draft dodging in the context of the Vietnam War, for example, was based both on anti-imperialist “international” grounds and on a “domestic” resistance against the draft, which, at least in the circumstances, was seen as an abuse of its power by the state).
116 In the East German Border Guards case before various German courts after reunification, the ideas of legal philosopher Gustav Radbruch (that a legal system loses this quality if it excessively departs from certain standards ofjustice, a line of argument also associated with Fuller in the Anglo-American tradition) were largely accepted. See Quint, P.E., “The Border Guard Trials and the East German Past-Seven Arguments” (2000) 48 Am. J. Comp. L. 541.CrossRefGoogle Scholar
117 One can imagine certain situations of state deliquescence — for example, an occupation — where it would be legitimate for civil disobeyers to stand up for the interests of an absent sovereign. On this subject more generally, see Mégret, F., “Grandeur et déclin de l’idée de résistance à l’occupation: à propos des ‘insurgés” (2010) Revue belge de droit international [forthcoming in 2010].Google Scholar
118 Allowance may be made for the more or less functional character of the democracy in relation to the problem at hand. For example, one of the key theoretical justifications of civil disobedience in defence of the environment even in democracies is that democracies have been very bad at taking the sort of massive action that would be required by a threat such as catastrophic global warming.
119 See, for example, “Declaration of Francis A. Boyle,” in USA v. Carol Gilbert, Jackie Marie Hudson and Ardeth Platte, Criminal Case no. 02-CR-509 R B (N.D. Col. 2002) (United States District Court for the District of ColoradoChapters, <http://chapters.scarecrowpress.com/07/425/0742538923ch1.pdf> (alleging a “breakdown in the Constitutional principle of checks and balances which implements the separation of powers”).
120 See Williams v. Wallace, 240 F. Supp. 100 (M.D. Ala. 1965).
121 For example, individuals often have to exhaust domestic remedies before they can bring a case to an international body.
122 Although proposals of the sort have no doubt been made. See, for example, Raskin, Marcus G., The Common Good: Its Politics, Policies, and Philosophy (New York: Routledge, 1986) at 298 Google Scholar; Lippman, supra note 97.
123 Bay, Christian, “Civil Disobedience,” in Parsons, T. and Sills, D., eds., International Encyclopedia of the Social Sciences (New York: Macmillan-Free Press, 1968) at 478.Google Scholar
124 Etienne Balibar has developed this idea of “foundational transgression.” See Balibar, E., “L’État d’urgence démocratique,” Le Monde (19 February 1997).Google Scholar
