The rule of (administrative) law in international law

Law and Contemporary Problems

Volumn 68, Issue 3-4, 2005, Pages 127-165

  Dyzenhaus, David ^a  

^a UNIVERSITY OF TORONTO   (Canada)

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EID: 30944435628     PISSN: 00239186     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (226)

1. This does not imply that the common law's conception of the rule of law has more to offer to the debate about international administrative law than does that of civil law systems. The latter may offer more, but here my ignorance is a fact if not an excuse.
2. The argument here owes much to Mark D. Walters, The Common Constitution and Legal Cosmopolitanism, in The Unity of Public Law 431 (David Dyzenhaus ed., 2004). Walters wants to revive the original Roman idea of the ius gentium, which differed from the ius feciale, the law between states, since it was about a natural law or "moral common law of humanity."
3. Id. at 440. Walters argues that this natural law idea was lost when the Westphalian international system came into being and was equated with the ius gentium, in substance replacing the former with the ius feciale.
4. Id.
5. He asserts that Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817, and other cases discussed infra, demonstrate that the common law constitution can be understood as embodying Kant's idea of a ius cosmopoliticum, itself an attempt to revive the original ius gentium. Moreover, he believes that revival can meet the challenge of what would otherwise appear to be black holes in legal order.
6. Id.
7. See Jeremy Waldron, Is the Rule of Law an Essentially Contested Concept (in Florida)?, 21 L. & Phil. 137 (2002).
8. Cooper v. Bd. of Works for the Wandsworth Dist., 21 Eng. Rep. 414, 420 (C.B.), 14 C.B. (N.S.) 180, 194 (1863) (Byles, J.).
9. A.V. Dicey, An Introduction to the Study of the Constitution 424 (1987).
10. Dualists do permit one port of entry into domestic law for these non-customary norms of international law, via the maxim that judges should deal with statutory ambiguity by resolving it in favor of international law. However, since grants of discretion to officials were long viewed as unambiguous delegations of authority to the officials - an unfettered discretion to decide as they thought best - there did not usually seem to dualists to be any ambiguity to resolve.
11. For a full account of all except the last case discussed in this section, see David Dyzenhaus et al., The Principle of Legality in Administrative Law: Internationalisation as Constitutionalisation, 1 Oxford U. Commonwealth L.J. 5 (2001).
12. Convention on the Rights of the Child, adopted Nov. 20, 1989, 1577 U.N.T.S. 3.
13. [1994] 2 N.Z.L.R. 257 (C.A.).
14. Id. at 266.
15. Id. at 265.
16. (1995) 183 C.L.R. 273.
17. Id. at 291.
18. Id. at 291-92.
19. [1999] 2 S.C.R. 817.
20. Id. at 857-58.
21. Id. at 861.
22. Id. at 863. The Court also invalidated the decision on the ground of bias and recognized that the case could have been decided on that basis alone.
23. Id. at 848-49.
24. See David Mullan, Baker v. Canada (Minister of Citizenship and Immigration) - A Defining Moment in Canadian Administrative Law, 7 Reid's Admin. L. 145, 151 (1999).
25. As in other cases on the CRC discussed in the text, the line of argument put forward by lawyers shifted after they had started the process of litigation before the courts, once they had become apprised of the possible impact of the CRC.
26. The decision of the majority of the House of Lords in A v. Sec'y of State for the Home Department is instructive here. [2004] U.K.H.L. 56 (appeal taken from Eng.). At issue was Chapter 23, Section 1 of the Anti-terrorism, Crime and Security Act 2001, a post-September 11 statute, which permitted the indefinite detention of suspected international terrorists who could not be deported because they faced the risk of torture in their home countries. The majority of the House of Lords quashed the Human Rights Act 1998 (Designated Derogation) Order 2001, which alleged that the United Kingdom was entitled, because of the emergency which followed September 11, to derogate from Article 5(1)(f) of the European Convention on Human Rights, which permits deprivation of liberty only in certain exceptional cases, including deprivation of liberty of a person "against whom action is being taken with a view to deportation."
27. Id. at para. 72.
28. The Court also issued a declaration of incompatibility with Article 5 and with Article 14, which precludes discrimination on the grounds of national origin. Id. at para. 158.
29. While the majority conceded that the question whether there was an emergency was for the executive and Parliament to decide, the judges were not prepared to hold that a measure that targeted aliens was a proportionate and non-discriminatory response to the emergency, especially given that the government conceded that there were suspected national terrorists at large in the United Kingdom. Id. at para. 72.
30. The majority drew extensive support from international human rights law for its argument that it was impermissible to draw a distinction between nationals and aliens when at issue was the liberty interest involved in indifinite detention derogation orders. Id at paras. 44-72.
31. Nevertheless, the Court in Baker, [1999] 2 S.C.R. 817, avoided relying explicitly on this theme.
32. Since Suresh v. Canada, [2002] 1 S.C.R. 3, the Supreme Court of Canada is now rather preoccupied with the idea that whatever judges do, they should not "reweigh" the factors officials have to take into account in order to demonstrate that their decisions are reasonable. Weight is, however, just a metaphor for a proper inquiry into the balance of reasons. It became part of the Canadian discussion because the majority in Baker was clearly influenced by Canada's having ratified, though not incorporating by legislation, the CRC.
33. Id. at 860-61.
34. Since Baker, the Supreme Court has retreated from its position expressed therein, and has adopted the view, more like that of the Federal Court of Appeal in Baker, that judges must never evaluate the way that legally relevant factors figure in the official's reasoning. Baker v. Canada, [1997] 142 D.L.R. 554, 563 (Fed C.A.). They can verify that the right reasons were taken into account but may not balance, or reweigh, the reasons. It is hardly an accident that this apparent retreat from Baker took place in Suresh, the first major decision in the national security area given by the Supreme Court after September 11, 2001.
35. For comment, see David Mullan, Deference from Baker to Suresh and Beyond - Interpreting the Conflicting Signals, in The Unity of Public Law 21 (David Dyzenhaus ed., 2004).
36. Thus, in New Zealand, in a subsequent Court of Appeal decision, Justice Keith suggested, against the claim in Tavita v. Minister of Immigration, [1994] 2 N.Z.L.R. 257 (C.A.), that the children's interests should be the "starting point" of the analysis, that special weight should not be given to the children's interests in these sorts of cases since the starting point in an official's reasoning "must be the position of the person who is unlawfully in the country or who is being deprived of residency rights."
37. Puli'uvea v. Removal Review Auth., [1996] N.Z.L.R. 538, 540 (C.A.).
38. The analysis in Rajan v. Minister of Immigration, [1996] 3 N.Z.L.R. 543 (C.A.), is similarly unenthusiastic about the approach suggested in Tavita.
39. In Minister of State for Immigration and Ethnic Affairs v. Teoh, (1995) 183 C.L.R. 273, Justice McHugh forcefully dissented on separation of powers grounds, while in Baker, two judges entered a partial dissent, also on separation of powers grounds, to permitting the Convention any role in the determination of weight. The Federal Court of Appeal's decision in Baker adopted Justice McHugh's dissent in Teoh. When the Supreme Court decided Baker, both the majority and the partial dissent avoided any mention of Teoh, perhaps because dealing with Teoh would have required the judges to confront very directly the distinction between process and substance. For similar reasons, the majority avoided using the exact language of the CRC to describe the process whereby an offical had to take into account the children's interests.
40. [2002] E.W.C.A. Civ. 1598.
41. Id. at para. 64.
42. Id. at para. 66.
43. Id. at para. 53.
44. One of the authorities relied upon was the famous decision of the House of Lords in Oppenheimer v. Cattermole, [1976] A.C. 249 (appeal taken from Eng.), a decision in which the Court had to decide whether a decree passed in Germany in 1941, which deprived Jews who had emigrated from Germany of their citizenship, should be recognized by the English court. Abbasi, at para. 52.
45. Lord Phillips quoted at length the passage from Lord Cross's judgment, which ends with this line: "To my mind a law of this sort constitutes so grave an infringement of human rights that the courts of this country ought to refuse to recognise it as a law at all." Id. at para. 52 (quoting Oppenheimer, at 278).
46. Id. at para. 64.
47. Specifically, the Court referred to Lord Atkin's dissent in Liversidge v. Anderson, [1942] A.C. 206 (appeal taken from Eng.), id at para. 60, and to a dictum of Justice Brennan for the U.S. Supreme Court in 1963, in which Brennan adopted the claim of an English judge that habeas corpus was "a writ, antecedent to statute, and throwing its root deep into the genius of our common law."
48. Id. at para. 61,
49. citing Fay v. Noia, 372 U.S. 391, 400 (1963),
50. adopting Lord Birkenhead, in Sec'y of State v. O' Brien, [1923] A.C. 603, 609 (appeal taken from Ir.).
51. Abbasi, at para. 63.
52. In Article 4, the ICCPR provides the right of a detainee to have access to a court to decide on the lawfulness of his detention and, in Article 2, requires that the parties, which include the United States and the United Kingdom, ensure that the rights protected by the Covenant are accorded to all individuals "without distinction of any kind, such as ... national origin."
53. Id. at paras. 70-79.
54. Id. at para. 80.
55. [1985] A.C. 374 (1984).
56. Abbasi, at para. 82.
57. Id.
58. Id. at paras. 83-85.
59. Id. at at para. 86,
60. citing R v. Home Sec'y of State for the Home Dept. (Ex p. Ahmed and Patel), [1998] I.N.L.R. 570, at 584.
61. Id. at paras. 88-92.
62. Abbasi, at para. 99.
63. A British citizen had a legitimate expectation that if he is "subjected abroad to a violation of a fundamental right, the British government will not simply wash their hands of the matter and abandon him to his fate."
64. Id. at para. 98.
65. Id. at para. 99.
66. Id. at para. 104.
67. Id. at para. 107.
68. See Johan Steyn, Guantanamo Bay: The Legal Black Hole, 53 Int'l & Comp. L. Q. 1 (2004).
69. Charlotte Kilroy, R. (on the Application of Abbasi) v. Secretary of State for Foreign and Commonwealth Affairs; Reviewing the Prerogative, 2 Eur. Hum. Rts. L. R. 222, 229 (2003).
70. Id.
71. Abbasi, at para. 25.
72. Id. at para. 39.
73. Baker v. Canada, [1999] 2 S.C.R. 817, at 865-66.
74. This is the Canadian standard, which is equivalent in the United Kingdom to Wednesbury unreasonableness, see Assoc. Provincial Picture Houses v. Wednesbury, [1948] 1 K.B. 223 (1947), and in the U.S. to an "arbitrary and capricious" standard.
75. The argument relies very heavily on an excellent paper by E. Alexandra Dosman, For the Record: Designating "Listed Entities" for the Purposes of Terrorist Financing Offenses at Canadian Law, 62 U. Toronto Fac. of L. R. 1 (Winter 2004), as well as on the factum (brief) prepared by the lawyers for Liban Hussein: Michael D. Edelson and David M. Paciocco, Edelson and Associates, Ottawa, Ontario (on file with the author). The author thanks David Paciocco for answering some queries about the episode.
76. One might object to this study on two grounds. First, it is about only one case, so little can be learned from it. However, this kind of lawmaking by international bodies is quite widespread (for example, edicts by the World Health Organization about whether a city or country is SARS-affected) and is one of the factors that prompted inquiry into the prospects for a global administrative law. Second, one might object that international law purports to relate primarily to the interests of states and states' interests were adequately protected in the case discussed here. My argument presupposes the position that international law, especially given the development of international human rights law, can no longer be seen as being exclusively about states' interests. It is also about the protection of individuals' human rights from arbitrary power, whatever the source of that power.
77. Paul C. Szasz, The Security Council Starts Legislating, 96 Am. J. Int'l L. 901 (2002).
78. Id. at 902.
79. S.C. Res. 1373, U.N. SCOR, 56th Sess., 4385th mtg., at 2, U.N. Doc. S/RES/1373 (2001).
80. Szasz, supra note 54, at 902.
81. The Afghanistan Committee was created previously by Resolution 1267 of the Security Council in order to deal with Afghanistan, S.C. Res. 1267, U.N. SCOR, 54th Sess., 4051st mtg., U.N. Doc. S/RES/1267 (1999).
82. S.C. Res. 1390, U.N. SCOR, 57th Sess., 4452d mtg., U.N. Doc. S/RES/1390 (2002).
83. An individual or organization that has been listed cannot apply to be delisted. A listed person must petition his or her home country to request a review of the case, and the home country then acts as the person's advocate if the review is favorable. The home country has to approach the government requesting the listing and attempt to persuade it to submit a joint or separate request to the Security Council for delisting. The home country can then submit the request even if the other government does not agree, but every member of the committee has an effective veto on any request. If the committee cannot achieve consensus, then the matter is remitted to the Security Council for final decision-making. See Dosman, supra note 52, at 13 (discussing the Guidelines established for the 1267 Committee.)
84. For an illuminating study of the listing mechanism, see Dosman, supra note 52.
85. Section 2(1) states that a "person whose name is listed in the schedule is a person who there are reasonable grounds to believe (a) has carried out, attempted to carry out, participated in or facilitated the carrying out of a terrorist activity," (b) is controlled directly or indirectly by any person conducting any of the activities set out in paragraph (a); or (c) are acting on behalf of, or at the direction of, or in association with any person conducting any of the activities involved in paragraph (a)." The Regulations create two tracks of listed persons. The first is directly linked to the list controlled by the 1267 Committee, so that the names that appear on its list are directly incorporated into Canadian law. The second track is contained in a Schedule created by Canadian authorities. The maximum fine and maximum term of imprisonment are those set out by the United Nations Act. In addition, Canada's Anti-Terrorism Act, another reaction to September 11, amended the punishment provisions of the United Nations Act to increase the fine on conviction from $5000 to $100,000 and the maximum term of imprisonment from five to ten years.
86. See Dosman, supra note 52.
87. 2001 WL1420777 (F.D.I.C.). This order added names to a list already issued by executive order on September 23, 2001, Exec. Order 13,224, 66 Fed. Reg. 49,079, primarily under the authority of International Emergency Economic Powers Act, 50 U.S.C. § 1701 (1977), but also claiming the authority of various other statutes and United Nations Resolutions.
88. In Why the President (Almost) Always Wins in Foreign Affairs: Lessons of the Iran-Contra Affair, 97 Yale L.J. 1255, Harold Hongju Koh notes the Act was enacted in 1977 to curb executive abuses of national emergency powers but has become a vehicle for the kind of exercise it was supposed to limit.
89. Id. at 1264-65.
90. Dosman, supra note 52, at 16.
91. Factum, supra note 52, at paras. 45-57.
92. Id. at paras. 58-71.
93. Id. The factum argues that laying regulations before Parliament is not a sufficient democratic safeguard.
94. Id. at paras. 72-78.
95. The Regulations thus in this respect also violated section 7. The lawyers also argued that the Regulations violated section 2(d) of the Charter, which protects freedom of association, since they prevent association with listed persons in the absence of reasonable grounds to believe they are involved in terrorism, or penalizes "unwitting or innocent association with persons who are involved in terrorist activities." Id. at paras. 79-96.
96. They submitted that Canada's Extradition Act was constitutionally invalid to the extent that it permitted the retroactive application of legislation. That is, the Act permitted Hussein to be extradited for actions that were criminal at the time extradition was sought rather than at the time he did those things. Retroactivity, especially criminal retroactivity, is against the rule of law, and the Charter of Rights and Freedoms is intended to secure the rule of law. "The primary mischief is avoidance of arbitrary and targeted use of legislation by the government of Canada to prejudice persons after they have already acted." Id. at paras. 98-114.
97. Id. at paras. 115-26.
98. See, e.g., Patrick Macklem, Canada's Obligations at International Criminal Law, in The Security of Freedom: Essays on Canada's Anti-Terrorism Bill 353 (Ronald J. Daniels et al. eds., 2001).
99. But see Jutta Brunnée, Terrorism and Legal Change: An International Law Lesson, id. at 341.
100. For an analysis sympathetic to this kind of argument, see Andrea Bianchi, Ad-hocism and the Rule of Law, 13 Eur. J. Int'l L. 263, 269-72 (2002).
101. At para. 58 of the Edelson and Paciocco Factum, supra note 52, the lawyers observe that the Charter of Rights and Freedoms permits them to avoid relying on a constitutional convention argument about the impropriety of the legislature conferring legislative powers on the executive, an argument rejected by the Canadian Supreme Court in In re Grey, [1918] 57 S.C.R. 150 (Can.).
102. See Peter W. Hogg, Constitutional Law of Canada § 14.1(d)-(14.2(a) (4th ed. 1997 & Supp. 2004). That the lawyers did not choose to rely on an argument akin to the one outlined below does not undermine it, for reasons explored in the text.
103. Factum, supra note 52, at para. 125.
104. As the author of a 1962 Note in the Yale Law Journal explains, the term "act" or "bill of attainder" comes from the practice in sixteenth, seventeenth, and eighteenth century England of using statutes to sentence "to death, without a conviction in the ordinary course of judicial trial, named or described persons or groups." Note, The Bounds of Legislative Specification: A Suggested Approach to the Bill of Attainder Clause, 72 Yale L.J. 330 (1962).
105. In addition, the term came to be used for "bills of pains and penalties," statutes that imposed sanctions less than capital. Id. at 331. Both sorts of statutes were aimed at revolutionaries and were considered offensive to the rule of law because they attempted to bypass the courts by establishing a system of either legislative or administrative conviction and punishment.
106. See, e.g., David Schweigman, The Authourity of the Security Council Under Chapter VII of the UN Charter: Legal Limits and the Role of the International Court of Justice 276-77 (2001).
107. Schweigman discusses the question of when Council decisions are ultra vires. The options he contemplates for who should declare decisions to be ultra vires are states and the International Court of Justice. He warns against domestic analogies, saying that "For one thing, the trias politica ... is (as yet) not applicable in the international sphere. In other words, there is no distinction between the executive, the legislative and the judicial powers known to national systems." Id. at 276-77.
108. But see Ian Brownlie, The Rule of Law in International Affairs: International Law at the Fiftieth Anniversary of the United Nations ch. 15 (1998).
109. Brownlie, relying in part on Hersch Lauterpacht, argues that the domestic analogies are apt even if no adequate institutional means exist to remedy violations of the rule of law. Brownlie outlines several criteria of legality or non-arbitrariness which would bind the Security Council; see especially his discussion of the ultra vires doctrine in relation to the Security Council's exercise of its Chapter VII powers. Id. at 217-25.
110. Szasz, supra note 54;
111. see also text accompanying note 54, supra.
112. In a review of a book by Danesh Sarooshi about the Security Council's delegation of its Chapter VII powers, Bardo Fassbender reproduces Sarooshi's quotation of Hans Kelsen's remark that, "No organ can legally delegate power to another organ without being authorised by the constitution to do so." Danesh Sarooshi, The United Nations and the Developemnt of Collective Security: The Delegation by the UN Security Council of its Chapter VII Powers 20, n.81 (1999)
113. reviewed by Bardo Fassbender, Quis judicabit? The Security Council: Its Powers and Its Legal Control, 11 Eur. J. Int'l L. 219, 228-32 (2000), quoting at 231
114. Hans Kelsen, The Law of the United Nations: A Critical Analysis of its Fundamental Problems 142 (1950).
115. Fassbender says this remark provides the right point of departure for the idea of delegation in this context: "[A] recognition first of the Charter as the constitution of the international community, second of the Security Council as an organ of that community established by the constitution, and third of the proposition ... that in the absence of an express or implicit authorisation by the constitution an organ is not entitled to delegate its power to another organ or entity. . . . The next task would then have been to interpret the U.N. Charter in order to determine the existence, possible scope, and limitations of such an authorisation, taking into account the Charter's singularity as well as its affinity to other constitutional documents." Fassbender, at 231-32 (footnote omitted).
116. The idea of constitutionalism that is relied on here is quite different from the one that seems to be at stake in current debates among international lawyers about to draw on the title of a paper by Laurence R. Helfer, Constitutional Analogies in the International Legal System, 37 Loy. L.A. L. Rev. 193 (2004).
117. Those engaged in the search for such analogies are generally looking for a constitution in the sense of a founding document, preferably one that includes a bill of rights, whereas the unwritten constitution consists in the values and principles that together make up the idea of the rule of law or legality. I do, however, want to adapt Helfer's suggestion that one of the ways in which international norms become constitutional is through judicial interpretation. He argues that the European Court of Justice, in taking references from national courts for a preliminary ruling on European Community law and then proclaiming doctrines which had direct analogies in domestic constitutional jurisprudence, bolstered the authority of the European Community's legislative and executive arms and at the same time elevated itself into the position of a kind of constitutional court. Id. at 200.
118. Similarly, he argues that the tribunal structure of the World Trade Organization, especially its Appellate Body, has also endowed the various treaties governing that organization with constitutional status, although not with the same status as the Treaty of Rome. Id. at 201-02.
119. The rulings of the Appellate Body are not enforceable as a matter of private right before domestic courts. The global scope of the WTO has made it more difficult for it to reach a kind of constitutional consensus on meta-norms, and jurists have found it more appropriate to present their ruling as enforcing bargains between states rather than as filling in the gaps in an emerging constitution. Id. at 203. This adaptation is largerly a negative one in the sense that a different kind of constitutionalism emerges when domestic courts refuse to enforce decisions made by international bodies for rule of law reasons.
120. Relevant here is the case of Maher Arar, a Canadian citizen who was detained in the U.S. in September 2002 while in transit to Canada. According to Arar, he was very aggressively interrogated by U.S. officials seeking to determine alleged links to terrorist groups. He was threatened with deportation to Syria, his country of origin, which he protested against because of his fear that he would be tortured there. He was sent first to Jordan, where he was beaten by Jordanian officials, and then to Syria, where he was detained and tortured. Over a year later, having made a full "confession," he was released and allowed to return to Canada. Arar is now seeking redress against Syria and Jordan by suing these governments in Canada. Arar is now seeking redress against Syria and Jordan by suing these governments in Canada.
121. His lawyer has been granted leave to intervene as an added party in the appeal against the decision of the Ontario Superior Court of Justice in Bouzari v. Iran, 2002 Carswell Ont. 1469.
122. In Bouzari, the court, in a rather unimaginative judgment, held that Canada's State Immunity Act, R.S.C., ch. S-18 (1985), which provides foreign states with immunity from the jurisdiction of Canadian courts, bars Bouzari's claim against Iran for the torture he suffered at the hands of Iranian officials. Bouzari's lawyers argued, inter alia, that developments in international law, in particular, the absolute prohibition against torture and the emerging sense in international law that there should be a right of redress for such acts in domestic law, required the court to find an exception to the immunity granted by the statute. The lawyers admitted that the position they were advocating was based on an argument about where international law was progressing and should be progressing. However, they also argued both that torture is an act that cannot be characterized as a legitimate exercise of state authority and that the Charter of Rights and Freedoms, in particular section 7, makes it inconsistent for Canada to grant immunity to a state for acts that are not in accordance with the principles of fundamental justice. I am grateful to Lorne Waldman, Arar's lawyer, for providing me with the materials on which this note is based. Arar has also filed suit in the Eastern District of New York, asserting that Attorney General John Ashcroft and others violated his "constitutional, civil and international human rights," including those rights protected under the Torture Victims Protection Act. Arar v. Ashcroft, Complaint and Demand for Jury Trial, filed Jan. 22, 2004 (E.D.N.Y.),
123. citing Torture Victim Protection Act, 28 U.S.C. § 1350 (1991).
124. See August Reinisch, International Organizations Before National Courts 281 (2000).
125. Reinisch claims there is an "apparent contradiction between the international-law-based human right of access to court and the restriction of such access by the concept of immunity." Id. at 282.
126. He notes it is surprising that this contradiction is rarely discussed, though he cites as an exception Lauterpacht's 1951 article, The Problem of Jurisdictional Immunity of Foreign States, B.Y. 28 (1951),
127. reprinted in 3 International Law: Being The Collected Papers of Hersch Lauterpacht 315 (Elihu Lauterpacht ed., Cambridge University Press 1977) [hereinafter INT'L LAW],
128. id. at n.147, in which Lauterpacht argued that with the "recognition of human freedoms as part of positive international law.. . it may be opportune to re-examine the problem of jurisdictional immunities of foreign States."
129. Id. at 317. It is worth noting here the analogy between this kind of claim and that accepted by the English courts in the Pinochet matter, that the immunity traditionally granted heads and former heads of state should not in principle be a bar to a legal claim when the violation of human rights is in issue.
130. As Ruth Wedgwood has pointed out, the idea of immunity that gets in the way here is analogous to the idea of prerogative power. Ruth Wedgwood, International Criminal Law and Augusto Pinochet, 40 Va. J. Int'l Law 829, 839-40 (2000).
131. Reinisch, supra note 81, at 281.
132. 124 S. Ct. 2686 (2004).
133. 124 S. Ct. 2633 (2004).
134. However, the meager amount of due process indicated by the plurality in Hamdi as constitutionally appropriate, as well as the plurality regarding a Congressional resolution as sufficient warrant for detention, are deeply troubling holdings.
135. See supra text accompanying note 69.
136. See Dosman, supra note 52, at 21.
137. Kent Roach, September 11: Consequences for Canada 36-38 (2003).
138. Pub. L. No. 106-120, 113 Stat. 1626 (1999).
139. Judicial Review Commission on Foreign Asset Control, Final Report to Congress, G.P.O. Item No. 1089, submitted to the House Permanent Select Committee on Intelligence and Senate Select Committee on Intelligence on Jan. 23, 2001 (on file with Law & Contemp. Probs.), available at http:// www.law.stetson.edu/ Judicial Review Commission (last visited June 25, 2005).
140. Id. at 195.
141. Id. at 96-97.
142. Id. at 98-100.
143. Id., Additional Views of Commissioner David B. Smith.
144. 314 U.S. 123 (1951).
145. See Smith, supra note 94, at 38.
146. Id. at 39, n.59.
147. Id. at 38-42.
148. For discussion of analogous problems, see the discussion of the issues arising out of the Australian Parliament's legislative ban of the Communist Party, invalidated in Australian Communist Party v. Commonwealth (1951) 83 C.L.R. 1.
149. David Dyzenhaus, Constituting the Enemy: A Response to Carl Schmitt, in Militant Democracy 15 (Andras Sajo ed., 2004).
150. This is argued by T.R.S. Allan in the leading theoretical treatment on the rule of law. T.R.S. Allan, Constitutional Justice: A Liberal Theory of the Rule of Law 148-60 (2001).
151. Id. at 148.
152. Id. at 154.
153. Heiner Bielefeldt, Symbolic Representation in Kant's Practical Philosophy 111 (2003).
154. For the standard English translation, see Immanuel Kant, Perpetual Peace: A Philosophical Sketch, reprinted in Kant: Political Writings 93, 101 (Hans Reiss ed. & H.B. Nisbet trans., Cambridge University Press, 2d ed. 1991) (1795).
155. Bielefeldt, supra note 103, at 112.
156. Id. (emphasis removed).
157. Id. at 113-14.
158. See Bianchi, supra note 72, at 269-72.
159. Immanuel Kant, reprinted in Kant: Political Writings, supra note 103, at 54 (1784).
160. Hersch Lauterpacht, The Grotian Tradition in International Law, 23 Brit. Y.B. Int'l L. 1 (1946),
161. reprinted in 2 Int'l Law, supra note 81, at 333.
162. Hersch Lauterpacht, The Development of International Law by the International Court (1958).
163. Id. at 158-72.
164. Id. at 158.
165. One should not be misled by his use of the word "legislation" to describe what judges do. Lauterpacht is not adopting a positivistic view of adjudication as a practice in which judges create law on the basis of their own subjective preferences. For him, legislation was little more than a term of convenience for judicial development of the law on the basis of existing principles. See, e.g., id. at 155-57, 166-67.
166. Thomas M. Franck, Fairness in Interntional Law and Institutions 5 (1995).
167. Id.
168. Id. at 6.
169. See Part II.B.2, supra.
170. See Thomas M. Franck, The Power of Legitimacy Among Nations (1990).
171. See also Lauterpacht, The Nature of International Law and General Jurisprudence, in 2 Int'l Law, supra note 81, at 7-8.
172. Lauterpacht asks the question, "Shall international law aim at improvement by trying to bring its rules within the compass of the generally accepted notion of law, or shall it disintegrate it and thus deprive itself of a concrete ideal of perfection?" As he points out, this question "transcends the limits of a problem of international law" and becomes a "problem of general jurisprudence." Id. at 8.
173. Lauterpacht, supra note 110, at 4-5.
174. Id.
175. See Part II.A., supra.
176. Id. at 158.
177. Id. at 165. In the common law of judicial review, requirements that discretion be exercised fairly and reasonably are functional equivalents of what Lauterpacht has in mind as protections against abuse of right.
178. Id. at 162.
179. Lauterpacht, supra note 109, at 162.
180. Id. at 172. The doctrine of legitimate expectations is a functional equivalent here, in addition to the developing idea of public law estoppel.
181. Id. at 171-72.
182. This echoes terminology used in P.F. Strawson's essay, Freedom and Resentment, 48 Proc. Brit. Acad., reprinted in Freedom and Resentment and Other Essays 1 (Methuen & Company 1974)(1962).
183. The argument relies here on just one, though a very central, work in Kelsen's corpus, Introduction to the Problems of Legal Theory 107-25 (Bonnie Litschewski Paulson & Stanley L. Paulson trans., Clarendon Press 1992), translated from Reine Rechtslehre (1934).
184. Id. at 108-09, 113-14.
185. Id. at 113-14.
186. Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (2001).
187. Id. at 517.
188. Id. at 410.
189. Id.
190. See Bianchi, supra note 72, at 264-65.
191. Hersch Lauterpacht, Kelsen's Pure Science of Law, in Modern Theories of Law 105 (W. Ivor Jennings ed., 1993).
192. Id. at 131.
193. Id.
194. For this reason, Richard Posner's recent sympathetic treatment of Kelsen overestimates the extent to which Kelsen's "concept of law is closer to judges' conception of their role than [H.L.A.] Hart's is." Richard A. Posner, Law, Pragmatism, and Democracy 269 (2003).
195. Posner also does not see that the substantive emptiness of Kelsen's theory does not allow Kelsen to distinguish, as Posner does, between "law" and "rule of law." Id. at 281.
196. To make that distinction one needs precisely the kind of Fullerian idea of an internal morality of law that Posner dismisses. Id. at 282.
197. Lauterpacht, supra note 136, at 133.
198. Id.
199. Id.
200. Koskenniemi, supra note 131, at 369.
201. Lauterpacht, supra note 109.
202. Id. at 326.
203. Id. at 327-28.
204. Id. at 329.
205. Id. at 331.
206. Lauterpacht, supra note 109, at 340-46.
207. In Joseph Raz's work, the idea of legitimacy becomes important because he thinks that legal authorities necessarily claim to be legitimate. But this claim is part of the logical structure of claim to legal authority and so does not in his view bring one into the political or moral debate about what makes law in fact legitimate. See Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics 194 (1994).
208. The most prominent legal positivist of this sort is Jeremy Waldron. Ben Kingsbury has recently revived this sort of positivism in the debate about the nature of international law. Kingsbury relies on Waldron's arguments but as an aid to bringing to the surface the jurisprudence of Lassa Oppenheim. See Benedict Kingsbury, Legal Positivism as Normative Politics: International Society, Balance of Power and Lassa Oppenheim's Positive International Law, 13 Eur. J. Int'l L. 401 (2002).
209. Kingsbury has further suggested that the way forward for international law is through Grotianism. In his summary, the new Grotian theory will "define and differentiate international law, separating the subject with clarity from other intellectual disciplines in order then to engage coherently with them." Benedict Kingsbury, The International Legal Order, in The Oxford Handbook of Legal Studies 271, 295 (Peter Cane & Mark Tushnet eds., 2003).
210. It will also "integrate an ethically justified normative positivism with theories going to the processes and content of international law, including a nested set of theories of governance, institutions, and community. It will be a hybrid of sources-based criteria and content-based criteria." Id.
211. For a discussion of analytic legal positivism, see David Dyzenhaus, The Genealogy of Legal Positivism, 24 Oxford J. Legal Stud. 39 (2004).
212. Analytic legal positivism is an unproductive diversion, started by John Austin, from the political tradition of Hobbes and Bentham, so the revival of normative positivism by Waldron and others is welcome. The legal positivist view that international law is not really law seems in the Anglo-American tradition to be due to John Austin, not to Jeremy Bentham. See MW Janis, Jeremy Bentham and the Fashioning of "International Law," 78 Am. J. Int'l L. 405 (1984). The discussion of political legal positivism below at times relies on terminology developed within the tradition of analytical legal positivism, especially by H.L.A. Hart. The claim, following Ronald Dworkin, about analytical legal positivism is not that analytical arguments are unhelpful to understanding the problems of legal order. Rather, the claim is that they are helpful only when nested in political theories of law.
213. Franck, supra note 113, at 208.
214. Id.
215. See, e.g., Jutta Brunnée & Stephen J. Toope, Persuasion and Enforcement: Explaining Compliance with International Law, 13 Finnish Y.B. Int'l L. 273 (2002). Taking their inspiration, from the legal theory of Lon L. Fuller, Brunnée and Toope argue Franck is right in that internal features of law must play a role in an account of the legitimacy of law, but this role cannot be adequately captured by a positivist theory of law. Law's ability to assert authority over power lies in an account of law's workings that includes the procedural and substantive components necessary to understand law's nature as an interactional rather than managerial (positivistic) enterprise.
216. Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty 48 (George Schwab trans., M.I.T. Press 1985) (1922).
217. See Thomas Hobbes, Leviathan (Cambridge University Press 1997) (1651), especially ch. 26, "Of Civil Laws," ch. 14, "Of the First and Second Natural Laws, and of Contracts," and ch. 15, "Of Other Laws of Nature."
218. For discussion, see David Dyzenhaus, Hobbes and the Legitimacy of Law, 20 L. & Phil. 461 (2001).
219. Similarly, I think it significant that in his later reflection on the topic of legitimacy, Franck, supra note 114, at 47, includes a chapter on "Equity as Fairness."
220. Regarding the first level of legitimacy, Hobbes does argue that anyone who is not a prisoner or slave within civil society should understand he has consented to the authority of the sovereign. But since Hobbes considers all actual sovereign power to be originally won by violence, he does not think an inquiry into the foundation of any actual state to be fruitful for understanding why the sovereign is legitimate. Rather, he is more concerned, again to borrow from Lauterpacht on Grotius, to show how the uncertainty of the higher or natural law, as concretized by the sovereign, is "preferable to the arbitrariness and insolence of naked force." Lauterpacht, supra note 109.
221. If all there was to natural law was the sovereign's interpretations, that would make natural law disappear at the moment of sovereign judgment, as Norberto Bobbio understood Hobbes as requiring. Norberto Bobbio, Thomas Hobbes and the Natural Law Tradition (Daniela Gobetti trans., Univ. of Chicago Press 1993) (1989). This understanding neglects Hobbes's account of the role of judges.
222. Hobbes does not limit the exercise of the sovereign's power to making laws that will then authorize his officials to implement the law. The sovereign may and sometimes must also act in exceptional situations, including foreign affairs. However, when the sovereign so acts he is still bound to act on an understanding of what the laws of nature require, just as officials and judges must, in the absence of the sovereign's explicit judgment, decide in the light of their understanding of the same laws. If one puts Hobbes and Kelsen together in one package, one gets a potent combination of the Kelsenian idea that all sovereign acts are subject to law with Hobbes's argument that the laws of nature are necessarily part of the law to which the sovereign is subject.
223. See Hobbes, supra note 156, at ch. 26.
224. Nevertheless, he seeks to ensure that their judgments do not compete with the general laws by refusing them application beyond the particular case.
225. See Lauterpacht, supra note 117, at 19.
226. Id.