Same-Sex Marriage Legalization and the Issue of Judicial Review in the U.S.A. Alexandra.Sakellariou
a b s t r a c t a b s t r a i t The decision made in Obergefell v. Hodges on June 26, 2016 marked a ground-breaking moment in American history, as it effectively legalized same-sex marriage throughout the country. While the decision was met with much celebration, it also produced an equally loud surge of criticism for its use of judicial review in settling such a controversial matter. This paper explores the criticisms against judicial review in relation to both Obergefell and its general use, focusing on claims that it undermines democracy and threatens the federal system inherent to the American political system. Despite such criticisms, this paper will argue in favour of judicial review, proving that it is an essential good necessary for protecting the people’s rights and the political structure it is said to harm.
La décision prise le 26 juin 2016 au cours du procès Obergefell v. Hodges a marquée un moment révolutionnaire dans l’histoire Américaine du fait qu’elle légalise le mariage entre conjoints du même sexe. Tandis que la décision était célébrée avec beaucoup d’enthousiasme, elle produira également beaucoup de critiques envers l’utilisation de la revue judiciaire dans le règlement de cette question très controversée. Cette dissertation explore et analyse les critiques en faveur et contre le sujet de la revue judiciaire en relation non seulement avec Obergefell, mais aussi son utilisation général en se concentrant particulièrement sur l’argument qu’elle abîme le procès démocratique et menace le système fédéral qui est au cœur du système politique des États-Unis. Malgré ces critiques, cette dissertation raisonnera en faveur de la revue judiciaire en montrant que son utilisation est essentielle afin de protéger les droits des citoyens et de, contrairement aux critiques, protéger la structure politique.
Key wo r d s : . fe d e r a l i s m . j u d i c i a l . r ev i ew d e m o c r a c y. s o c i a l . c h a n g e . c o n s t i t u t i o n June 26th, 2015 marked a breakthrough moment in American history when the Supreme Court of the United States of America, in Obergefell v Hodges, effectively legalized samesex marriage throughout the country. This landmark decision spawned both momentous celebrations from those excited about the proclaimed victory and a backlash of harsh criticism from others dissatisfied with the ruling. In this paper, I explore the decision made by the Court that now prevents states from disallowing same-sex marriage in its relation to controversy surrounding judicial review. I will begin by discussing exactly what the ruling meant for same-sex marriages in America as well as the reasoning the Judges employed to arrive at their decision. I will then go on to discuss the criticism the case has received because of the use of judicial review to decide on such a controversial issue, which opponents charge as being both a subjective imposition and violation of states’ rights. Further, I will explain how these criticisms allude to the even larger controversy of judicial review in general, with critics claiming that it undermines both democracy and threatens the federal system inherent to the American political system. I will go on to argue that, despite such criticisms, judicial review is fundamental in order to preserve the very political structure it is said to harm as it works to protect both individual rights and, in turn, the federal system. In relation to Obergefell, I will also explain how judicial review was necessary to reach a final conclusion on the debate about same-sex marriage. I will conclude that judicial review is an essential good that is necessary to protect the people’s individual rights as well as the very political structure America was founded upon now and into the future.
The Decision Made in Obergefell v Hodges: The Obergefell v Hodges decision determined once and for all that same-sex couples have the right to marry in America after many years of debate. The main question the Supreme Court had to decide was whether same-sex couples did in fact have a legal right to marriage. But this question also implied they would have to answer who should decide whether same-sex couples can get married- whether this should be left to the states to decide or, if the decision was so fundamentally important, that the federal government via the Constitution should decide (Ryan, 2013, par. 3). Their decision was not just about the legal rights of same-sex couples, but was also about the relationship between the state and federal governments. The decision effectively ruled two things- that states could no longer refuse to issue marriage licenses to same-sex couples and that they also could no longer refuse to recognize any same-sex out-of- state marriage licenses (Eskridge, 2015, 111). The Court founded their decision primarily on the Equal Protection Clause of the 14 th Amendment in the Constitution. As William Eskridge explains, the Court “had long recognized the right to marry as a fundamental right protected against deprivation by the Due Process Clause” (2015, 111). The Equal Protection Clause prevents discrimination against a minority in respect to their fundamental liberty (Eskridge, 2015, 111). It limits the government’s power to award benefits to only a certain group of individuals (Farabee, 1996, 263). Simply, it requires that everyone be treated equally before the law. Justice Kennedy, in his opinion for the court, explained “the right of samesex couples to marry that is part of the liberty promised by the Fourteenth Amendment [and] is derived, too, from that Amendment’s guarantee of the equal protection of the laws” (as cited
in Eskridge, 2015, 111). As marriage is regarded as a fundamental right, the fact that some states withhold this to same-sex couples constitutes discrimination against a minority- a direct violation of the Fourteenth Amendment. Judicial Review This decision was made through a process known as judicial review and, for that reason, has received criticism for going against the principles of the American political structure. Before we look at the criticism of Obergefell and judicial review in general, it is important to understand the idea of judicial review and where it came from. Simply, judicial review is the power of the courts to declare any legislation invalid if it is not consistent with the Constitution (Johnson, 2014, par. 3). Though the Constitution does not explicitly address judicial review, its power has been affirmed within the American political structure and history of the Constitution. This power was echoed throughout a number of the Federalist Papers. In specific, Alexander Hamilton’s No. 79, in great detail, emphasized and explicated the power of the judiciary. Here he writes, “no legislative act, therefore, contrary to the Constitution, can be valid […] the legislative body are themselves the constitutional judges of their own powers and the construction they put upon them is conclusive upon the other departments” (1789, 467). The judicial system was created to act as check on the other levels of government within the federal system, with Hamilton explaining “courts were designed to be an intermediate body between the people and the legislature in order, among other things, to keep the latter within the limits assigned to their authority” (1789, 467). The courts were created to interpret and protect the constitution, thus the power of judicial review was explicitly implied in their creation. Moreover, the power of judicial review was later officially affirmed by the Court in the famous Marbury v Madison case. Chief Justice Marshall, draw-
ing on the logic of the Federalist Papers, explained, “the constitution of the United States confirms and strengthens the principles, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void” (as cited in Johnson, 2014, par. 3). Judicial review has always been a historic practice utilized to make sure legislation is consistent with the American principles upheld in the Constitution. Criticisms Against Obergefell: The majority of criticism against Obergefell has been primarily to do with the use of judicial review to legalize same-sex marriage nationwide, with many critics claiming it goes against the values of democracy. The dissenting opinions of the four of the nine judges who disagreed with the decision were harsh, criticizing that they violated the very premises of government. Their main criticism was that the Court sought to legislate instead of judge, going beyond their responsibility and power. In his dissent, Chief Justice John Roberts explains, “five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law […] stealing this issue from the people” (as cited in Pruitt, 2015, par. 2). Quoting Roberts, William Eskridge explains that the dissenters; [r]egretted that the majority was announcing a “dramatic social change” that “has no basis in the Constitution or this Court’s precedent[s].” “[A]cross all… civilizations,” the chief justice insisted, marriage has “referred to only one relationship: the union of a man and a woman.” Because the Court was redefining marriage in a way that no culture had ever done (according to him) […] the dissenting justices charged the majority with legislating rather than judging and with violating the democratic premises of our system of government. (2015,
112). In short, the dissenters felt that the judges had overstepped their duties as part of the judiciary and forced new values upon the country that had not been reached in a democratic manner. The dissenting opinions accurately reflect the disapproval many of the critics of Obergefell felt towards the legalization of same-sex marriage through judicial review. There are two main criticisms of Obergefell, expressed by scholars and media alike after the ruling, that tie into its relation with judicial review. First, many opponents found the whole process that eventually legalized samesex marriage undermined the democratic nature of the government. Various scholars, in response to Obergefell, have explained that the Courts do not have the power to impose their subjective will (Pruitt; Anderson; Farabee). As we shall later discuss, the Courts do not have legislative power to impose their will, so critics claim they cannot force states to now accept same-sex marriage. They criticize that making such a momentous decision in a closed courtroom undermined public support. Zack Pruitt, in his article “The SameSex Marriage Decision: Ruling by Judicial Fiat”, explains “laws passed through this process engender substantial public support […] because the ultimate decision made on same-sex marriage was made in a courtroom and not in the public sphere, it will now be subject to a litany of legal challenges” (2015, par. 2). The ruling does not necessarily reflect the will of the people, as it was the imposition of the judges’ own personal desire for social change. Pruitt contends that this is neither consistent with democracy nor representative government (2015, par. 4). He goes on to predict that people will be quick to challenge same-sex marriage legalization by claiming it violates their consciousness and First Amendment rights (par. 2). Secondly, critics of Obergefell claim that the judicial ruling violates state rights by trying to intrude
on an area that falls under state jurisdiction. Marriage is a subject that falls under the power of states to regulate, so they argue that only the states have the power to define what constitutes a marriage (Farabee, 1996, 277). They explain that states have their own valid reasons for not wanting to legalize same-sex marriage, generally maintaining it goes against their traditional beliefs that marriage is a family institution meant to foster procreation and childrearing- things they claim samesex couples cannot do (Farabee, 1996, 271). They argue that, since marriage falls under state jurisdiction, the state should have the power to decide who can get married according to their own beliefs. The judiciary has violated these rights by now forcing all states to legalize same-sex marriages. Many critics maintain that same-sex marriage legalization should have been left up to the political process, not judicial review. As Pruitt writes, “social change through ‘consent of the governed’ is much more powerful than forced social change by judicial edict” (2015, par. 5). Had legalization been left up to the political process, it supposedly would have both respected democratic values as well as the autonomy of the states. Criticism Against Judicial Review The criticisms expressed against Obergefell reflect the disdain many people have of judicial review in general and we now turn to discuss these. There are two primary criticisms held against judicial review. The first criticism is that it undermines democracy. It cannot be denied there has been an increase in judicial decision-making in recent decades, sometimes referred to as ‘New Judicial Federalism’ (Peele et al, 2010, 156). Developments in the 1980s and 1990s- often referred to as the Rehnquist Court to signify its importance- saw the courts deliver decisions that sought to expand state authority (Peele et al, 2010, 157). While there has not been a judicial revolution, many people contend the Court has become too powerful and is overstep-
ping its role. Especially with the noted increase in its activism, many believe the Court is acting more as a legislator than an interpreter. Critics point out that the Constitution does not make the Supreme Court the supreme “Law of the Land” or the final say in any and all matters (Redish, 13). It does not
“Though they may enter into the political or judicial realm with the intent to impartially represent the people, we cannot assume that the moral beliefs of such actors will never influence their actions.” give them unlimited or absolute power. There is also nothing in the Constitution that gives the Courts power to legislate or make something they believe will better society legal (Pruitt, 2015, par. 1). However, there has been increasing observation that the Court is doing just this, as we discussed in relation to the Obergefell case. Judges are able to evaluate the constitutional validity of legislation based on their own belief and moral judgements, not based the impartial interpretation they were originally envisioned to use (Ball, 2011, 6). As Martin Redish observes, “the courts are proving to us that they are suiting as super-legislatures […] if the judiciary is always given the final say on constitutional issues, there is no one to check that power” (2004, 19). If the courts act more as legislators than mediators and interpreters, they are defying their purpose as a check on the other levels of government and denying the people a voice in legislative matters, effectively undermining the democratic process. The second primary criticism of judicial review maintains that it threatens the federal structure, which is fundamental to the political nature of America. Critics of judicial review
argue that the court is increasingly intruding on states’ rights and powers. Recall how Obergefell intruded upon marriage regulations, which has historically been an area of jurisdiction set aside for the states. When the Court acts more like a legislator than a judge, it begins to impose a unilateral will upon the country and effectively deny the individual autonomy of the states. This threatens the structure of the federal system. When the federal system was first designed by the Fathers of Confederation, it was intended to be a federation of sovereign states, as exemplified in the drafting of the Federalist Papers (Redish, 10). This was done in order to reflect and better meet the diverse interests of the people who made up the expansive country of America. Explicit powers were given to the federal government and all other residual powers were supposed to be regarded as under state jurisdiction (Redish, 10). This was to prevent power from becoming too centralized in the federal government. However, many critics have contended that the judicial system has helped to gradually centralize power in Federal hands. One author writes, “judges have chipped away at the interpretation of this constitutional law [so] the federal power is gradually centralized and reaffirmed” (Biernat, 2014, par. 4). A centralized government means there is less opportunity for the voices of the people to be heard. This threatens the efficiency of the federal system that has historically proven a necessary good in the American political structure in order to properly meet the needs and reflect the desires of the people at a better level. Why Judicial Review is Necessary I argue, on the contrary, that these criticisms are mistaken in their claims that judicial review does more harm than good to the American political system. This paper now turns to discuss the necessity of judicial review, as it is essential for preserving the nation’s political structure and protecting the rights of the people. To begin with,
it must be made clear that judicial review is not simply an imposition of the Judges’ subjective will, contrary to the first general criticism made against it. There are factors in place to ensure the Judges act on behalf of the Constitution and do not merely impose their own beliefs or moral judgements. The Supremacy Clause of the Constitution states “this Constitution, and the Laws of the United States which shall be made in pursuance thereof… shall be the supreme Law of the Land; and the Judges in every state shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding” (as cited in Johnson, 2014, par. 3). This clause binds the Judges of the courts to the Constitution, meaning they must adhere to its words when conducting judicial reviews. They cannot declare legislation unconstitutional merely because they believe it is harming society. Rather, the legislation must explicitly go against the written or implied word of the Constitution. While the Constitution may not explicitly address the power of judicial review, it can be said that it is implied through this passage. As we saw in the Federalist Papers, the courts were explicitly given the responsibility to interpret and protect the Constitution in order to preserve the federal political structure. The Constitution is to be regarded as the “Law of the Land” and, since the courts are the interpreter and protector or this, it can only be assumed their word does have finality. If the courts declare legislation invalid, then it should be taken like the word of the Constitution- final and valid. Furthermore, during judicial review, the Judges follow a comprehensive process to determine whether legislation is unconstitutional that helps ensure they approach the matter objectively. The Supreme Court, in particular, has developed an explicit set of guidelines for determining whether legislation violates the Constitution, known as Rational Basis Review (Arana, 2014, 4). If the Judges can come up with any plausible interest the Gov-
ernment may have had in creating the legislation, the law will pass (Arana, 2014, 4). Generally, only the most ridiculous laws fail to pass the Rational Basis Review. However, legislation that targets a specific minority group or that may infringe upon a fundamental right is subjected to a harsher test. For such legislation to pass, the majority of Judges must agree that, first, the legislation is in a compelling state interest and, secondly, it is the only way possible to achieve its intended goal (Arana, 2014, 5). Considering the written word of the Constitution and also past precedents, the Judges debate whether or not the legislation meets these conditions. This is the approach the Judges took during Obergefell to resolve the debate concerning same-sex marriages. They decided that legislation prohibiting same-sex marriage was unconstitutional, as it violated the Equal Protection Clause, and that there was no compelling state interest providing for its lawfulness. They therefore ruled such legislation invalid. It is important to recognize that it is highly improbable to ever completely remove someone’s subjectivity upon making a decision. While such aforementioned methods are in place to help prevent the Judges’ bias from affecting their decisions, it is implausible to ever expect to be able to remove all hints of their subjectivity from their rulings. Esteemed political philosopher Ronald Dworkin often spoke of the necessity of interpreting the Constitution with a moral understanding. As Carlos Ball describes Dworkin’s idea, this “requires judges to ‘interpret and apply the […] [Constitution’s] abstract clauses [like those pertaining to equal protection and due process] on the understanding that they invoke moral principles about political decency and justice’” (2011, 14). We are moral creatures and, while the ability to judge impartially is ideal, it is an epitome that can never fully be realized. This is something we must accept of all political actors, not just Judges. Though they may enter into the politi-
cal or judicial realm with the intent to impartially represent the people, we cannot assume that the moral beliefs of such actors will never influence their actions. At the same time, one’s subjectivity is not necessarily a completely undesirable thing. Without some concept of morality we cannot have the idea of equality, for what we believe to be moral affects what we believe to be equal (Ball, 2011, 22). There is no single, agreed upon concept of morality so we can only assume it is up to our subjective beliefs what we believe to be moral. Our sense of morality is what propels individuals to fight for what they believe to be equal. It is what propels them to fight for what they believe to be theirs and others’ fundamental rights. In the case of Obergefell, people believed the choice to marry whoever you want was an equal right and that is why they fought for it all the way to the Court. Ball explains; [t]he crucial judgement that must be made when addressing gay rights issues from a non-discrimination perspective is whether those with a samesex sexual orientation differ in abilities, characters, or potential […] and to make that judgement, we must grapple with complicated normative questions regarding human sexuality and intimate relationships. (2011, 27). While judgements should be made from as objective and impartial a view as possible, these types of decisions are not able to escape the influence of our underlying subjective beliefs. To criticize judicial review as defective merely because there is possibility the Judges may be influenced by their own subjectivity is not criticism enough to warrant it a useless factor in the American political system. In response to the second criticism of judicial review, we will now look at how judicial review actually works to protect the individual rights of
the nation’s people as well as the federal system. Though we saw in Obergefell how judicial review can deny the states power in their jurisdiction, this works to protect the American political system in the long run. The expansion of judicial decision-making, which was referenced earlier in this paper, concerns a trend towards the increased protection of individual rights (Farabee, 1996, 246). Individual rights are those that are protected within the Constitution, such as the right to be treated equally under the law as stated in the Equal Protection Clause. It is unreasonable to criticize judicial review by saying it unfairly centralizes power into either the federal or state governments. Instead, the Court vests power wherever they believe the rights of the people will be best protected. The Rehnquist Court era saw more power concentrated in the state governments, while the decades previous saw more power concentrated in the federal government (Farabee, 1996, 246). In Obergefell, for instance, the Supreme Court believe the rights of the people would be better protected it the power to legislate marriage was vested in the federal government and not the states. This way they could ensure that the individual rights of same-sex couples to marriage were protected. The Court always has substantial reason to concentrate power into one level of government, even if that power has traditionally been reserved for the other level. The critics of judicial review charge that this process does not allow important decisions to be determined by the majority, which they claim threatens the structure and purpose of the federal system. However, it is important to understand that, by their nature, constitutional individual rights are counter-majoritarian (Ryan, 2013, par. 11). You retain those rights regardless of what the majority thinks or agrees upon. You have the freedom to believe your religion even if your atheist neighbour believes that it is ridiculous. Likewise, you have the right to a proper trial even if the majority already be-
lieves you are guilty. Individual rights are constitutionally protected because they are believed to be essential to our well being as people and we are thus morally entitled to them. Erin Ryan writes, “the issue on the line is about protecting individual rights against unfair discrimination by the majority- then the Supreme Court has a constitutional obligation not to just leave the matter to the majoritarian political process” (2013, par. 12). The majority has proven to be wrong regarding matters of individual rights before. In the 1967 Loving v Virginia case, the Supreme Court found laws prohibiting interracial marriage unconstitutional. Although the majority of people at the time believed interracial marriage was wrong and should be legally prohibited, the Court recognized the fundamental individual right of people to marry who they want. Today, not many people would disagree that individuals should have the right to marry who they want regardless of race. However, had this matter been left up to the majority in 1967, people’s right to marry who they want may still continue to be violated based on race. Loving v Virginia was used as a precedent for Obergefell v Hodges. Although many Americansperhaps even a majority- believe states should have the right to prohibit samesex marriage, the Court defied this in an effort to protect individual rights. In Loving, the Judges found that the freedom to marry was an individual right essential to one’s pursuit of happiness and restricting marriage based on racial classifications violated the Equal Protection Clause (Schaff, 2003, 140). Legislation that limits marriage to the union between one man and one woman is analogous to the legislation that was shot down in Loving, which restricted marriage based on race (Schaff, 2003, 140). The Judges in Obergefell found that restricting freedom of marriage based on sexual orientation violated the Equal Protection Clause as well and, thus, found legislation preventing same-sex marriages unconstitutional. Had such a decision been left
up to the majority, states may still be violating individual rights by barring same-sex marriages. The Court had to intervene in order to ensure this right was protected. The protection of individual rights through judicial review also serves to preserve the American federal system. The purpose of the federal structure is to act as a check and balance between federal and state power in order to protect the individual rights as protected by the Constitution (Ryan, 2013, par. 13). The extensive powers given to the states were supposed to protect the rights of the people from the authority of one overbearing national power. It was meant to allow greater representation of the people’s wants and needs in the political system so the nation could serve them to the best of its ability. However, when the states act in a way that violates these rights, it is the responsibility of the judiciary to step in and re-balance power. In some instances, states do have incentives to undermine the federal structure and infringe upon individual rights (McGinnis et al, 2004, 121). This is exactly what happened in Obergefell. The states felt they had incentive and reason to bar same-sex marriages. However, as we have seen, this was found to be a violation of individual rights and thus provided justification for the Court to impose constitutional restraints upon the states. The states were overstepping their authority in order to try and regulate the individual rights of the people. While the prohibition from banning same-sex marriage on states may have intruded on their authority to regulate marriage, it re-balanced power within the federal system and ensured that people’s individual rights were no longer put at risk. Judicial review ensured that the fundamental, individual right to marriage was protected and the power within the federal structure was maintained for the better.
the use of judicial review in Obergefell and in general, yet the undeniable necessity of this process in order to protect the American political system. We can understand in-depth the ruling made by the Supreme Court concerning samesex marriage and also the reasoning the Judges took to make their decision. We have seen the dissenting opinion given by the court as well as the general criticisms Obergefell received for its use of judicial review to decide on such an important matter. Furthermore, we explored the main criticisms of judicial review in general that accuse it of undermining democracy and threatening the federal structure. Finally, I argued that these criticisms were wrong in charging that judicial review does more harm than good to the political system. I explained how the general criticisms of judicial review and those pertaining to Obergefell are mistaken and that judicial review does, in fact, work to protect individual rights as well as the entire federal system. I maintain that judicial review is an essential practice within the political system that works to protect the individual citizens as well as political structure of America. In relation to Obergefell, I maintain that judicial review was a necessary process that worked to restore and protect the basic marital rights all American citizens have, which may have continued to be violated had this decision been left up to the majority. The continued use of judicial review, despite harsh criticisms against it, is essential in order to protect the rights of the people and maintain the basic workings of the American political system well into the future.
Conclusion In conclusion, we can now understand the controversy surrounding
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McGinnis, John O., and Ilya Somin. “Federalism Vs. States’ Rights: A Defense of Judicial Review in a Federal System.” Northwestern University Law Review Vol. 99. No. 1 (2004): 89130. Print. Ball, Carlos A., “Why Liberty Judicial Review is as Legitimate as Equality Review: The Case of Gay Rights Jurisprudence.” University of Pennsylvania Journal of Constitutional Law Vol. 106. No. 106 (2011): 1-76. Print. Arana, Gabriel. "Supreme Court's Gay Encore: Why the Marriage Equality Battle Is Not Over Yet." Salon. N.p., 18 Aug. 2014. Web. 28 Nov. 2015. Schaff, Kory. "Equal Protection and Same-Sex Marriage." Journal of Social Philosophy Vol. 35. No. 1 (2003): 133-47. Print. McGinnis, John O., and Ilya Somin. “Federalism Vs. States’ Rights: A Defense of Judicial Review in a Federal System.” Northwestern University Law Review Vol. 99. No. 1 (2004): 89130. Print.
Anderson, Ryan. "Judicial Activism on Marriage Isn't the End- Here's What to Do Now." Boston Globe. N.p., 26 June 2015. Web. 28 Nov. 2015. Peele, G., C.J. Bailey, B. Cain, and B.G. Peters. “Chapter 10: American Federalism in the Twenty-First Century.” Developments in American Politics (2010): 150-166. Print. Redish, Martin H. "Limiting Federal Court Jurisdiction to Protect Marriage For the States." Free Republic. N.p., 24 June 2004. Web. 28 Nov. 2015. Biernat, Mark. "States Rights: Why the Tenth Amendment Matters." Political Economy. N.p., 15 June 2014. Web. 28 Nov. 2015
Holding Back to Push Forward: the Role of Remedial Minimalism in Uniting the Rule of Law and Democracy in Canada Brian.Huang
a b s t r a c t a b s t r a i t Is there a fundamental tension between judicial review and constitutional democracy in Canada? On one hand, judicial review allows non-elected judges to influence policy by ruling on laws passed by the democratically elected legislature. On the other, judicial review is the most efficient method of protecting the rule of law and minority rights from potentially unconstitutional but democratic majority rule. In this paper, I provide a solution to this conflict in the form of remedial minimalism. By analyzing the constitutional decisions in Vriend v. Alberta, R. v. Morgentaler, Canada v. Bedford, Carter v. Canada, and Canada v. Khadr, I argue that adopting a judicial remedial minimalist approach allows the Supreme Court of Canada tostrengthen the unity between the rule of law and democracy.
Y a t-il une tension entre la revue judiciaire et la démocratie constitutionnelle du Canada ? D’un coté, la revue judiciaire permet aux juges non-élus d’influencer la politique sur les lois adoptées par la législature qui est élue démocratiquement. D’un autre coté, la revue judiciaire est la méthode la plus efficace pour protéger la règle de droit et les droits des minorités face à une majorité démocratique mais potentiellement inconstitutionnelle. Dans cette dissertation, je fournis une solution à ce conflit sous forme de minimalisme correctif. En analysant les décisions constitutionnelles des procès Vriend v. Alberta, R. v. Morgentaler, Canada v. Bedford, Carter v. Canada, et Canada v. Khadr, je propose qu’une approche minimaliste corrective judiciaire permet à la Cour suprême du Canada de renforcer l’unité entre la règle de droit et la démocratie.
Keywords:.remedial.minimalism. democracy.separation of powers.rule of law. constitutional dialogue theory Introduction The Supreme Court of Canada, in its Reference re Succession of Quebec decision, determined four underlying principles of the Canadian constitution: federalism, constitutionalism and the rule of law, democracy, and the protection of minorities (2 S.C.R. 217, 1998). The principles are fundamental to the liberal democratic society as enjoyed by Canadians. There appears, however, to be a tension between these principles in that federalism and democracy, which grants legitimacy to laws passed by the democratically elected government, conflict with the rule of law and the protection of minorities, as safeguarded by the non-democratically appointed judiciary. On one hand, how can a democracy, which is supposedly ruled by the people, have non-elected judges strike down majority supported laws and influence policy making? On the other, how can the rule of law and minority rights be protected if the majority can impose its will on society through laws passed by the government? It seems the Canadian political system faces a constitutional crisis whereby the three branches of government, instead of working together to effectively govern the Canadian people, are competing against each other for political superiority at the cost of the rights of citizens. The solution to the conflict is remedial minimalism, in which the judiciary strikes down laws that are unconstitutional but does not implement policy-changing remedies itself, thus allowing for parliament to pass new ones that do respect the constitution. The Supreme Court of Canada has traditionally used a flexible and expansive approach to remedies, but recently began to adopt a minimalist approach in regards to constitutional decisions. This paper argues that by adopting a remedial minimalist approach to its decisions, the Supreme Court of Canada strengthens the unity
between the protection of rights, the rule of law and constitutional democracy. It should therefore be applied more often to decisions regarding unconstitutional legislation. This thesis is supported by exploring the judicial impact of the Supreme Court in the backlash of the remedies towards gay rights in Vriend v. Alberta, and remedial minimalism in the recent decisions regarding abortion in R. v. Morgentaler, prostitution in Canada (AG) v. Bedford, and physician-assisted suicide in Carter v. Canada (AG). Finally, the paper will address a counterargument against remedial minimalism raised by the abuse of public power in Canada (Prime Minister) v. Khadr. Clarifications Before exploring the role of the remedial minimalist approach adopted by the Supreme Court, a few clarifications are needed. Firstly, the term “judicial remedies” in constitutional law refers to the manner in which a court enforces its decision by declaring a law to be unconstitutional, excluding evidence, and implementing policy by “reading in” to laws to make adjustments (Hausegger et al., 380). The basis of remedial minimalism is that a decision only declares a law to be unconstitutional, allows for deference of the decision so that the other branches of the government can respond, and does not state specific policy implementations. Secondly, remedial minimalism does not necessarily refer to the debate between judicial activism and judicial restraint. Although remedies in Supreme Court decisions can be a very strong form of policy making and may be interpreted as a form of activism, judicial activism in itself refers to a judge’s willingness to strike down laws on the basis of independent, personal, and political views that override the decisions and actions of other branches of the state to create policy
(Hausegger et al., 123). By contrast, judicial restraint refers to judges limiting the exercise of their power by hesitating to strike down laws unless absolutely and blatantly unconstitutional (Hausegger et al., 123). Although the implementation of remedies is linked with activism, judges can still be activist and remedial minimalist if they are very willing to strike down law but not implement remedies. Most cases explored in this paper exhibit activism by invalidating previous laws but have minimal remedies administered. Thirdly, the “Parliament of Canada,” also referred to in this paper as simply “the government,” consists of both the executive branch made up of the Prime Minister and his Cabinet, and the legislative branch made up of the Senate and the House of Commons. Lastly, throughout the paper I make reference to the Section 1 Oakes test. This test enacts Section 1 of the Charter to allow for reasonable limits on Charter rights, so long as it can be “demonstrably justified in a free and democratic society.” Set by the precedence in R. v. Oakes, a violation of the Charter can be justified if it passes the follow criteria: 1) The law which violates the Charter needs to achieve a goal that is both pressing and substantial, and 2) must be proportional in that it is rationally connected to its goal, causes the most minimal impairment amongst reasonable alternatives, and has proportionate effects where the rights violations costs of enacting the law are not too high in comparison to the benefits. A law that both violates the rights and freedoms of the Charter and is not justifiable under the Oakes test would be struck down. Section 24 of the Canadian Charter of Rights and Freedoms Judicial remedies are referenced in the Canadian Charter of Rights and Freedoms under Section 24(1), which states, “anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such rem-
edy as the court considers appropriate and just in the circumstances.” While Section 24(1) states any law inconsistent with the Charter is of no effect and can be invalidated by the judiciary, it also allows judges to implement broader remedies and place positive obligations upon a government (Hogg, 2003). Thus, the Charter allows for the judiciary to implement remedies that alter or create policies. The reason behind Section 24(1) is to ensure that the courts have the power to provide those infringed with appropriate remedies and to forcibly “guide” Parliament’s approach to a law in a certain direction. Should the legislature disagree with the ruling, they could always invoke the notwithstanding clause in Section 33 to overrule the Supreme Court’s decision given certain restrictions, such as mandatory legislative review of the law every five years. However, invoking Section 33 would mean ignoring judicial authority and potentially inciting a political power competition. The next sections of the paper will explore why policy implementation by the Supreme Court causes conflict with democracy and the separation of powers. This paper will then explain why the minimalist approach to remedies reinforces the relationship between the parliament and the judiciary by respecting the rule of law while allowing for the democratic process to flourish. The Backlash of Gay Rights Implementation by the Supreme Court in Vriend v. Alberta In the 1998 case Vriend v. Alberta, the Supreme Court not only declared that the exclusion of sexual orientation in the Alberta Individual Rights Protection Act was unconstitutional but also “read in” to incorporate new language into the law which the court claimed could not be constitutionally omitted. Major backlash and criticism resulted from the decision, as it was argued that the Court had overstepped its judiciary role by adjusting a law on its own without involving the democratic process. The Court, which
did not adopt a remedial minimalist approach but rather exercised a high degree of judicial law-making, had tarnished the principle of democracy by not allowing the Alberta Parliament to create its own laws. Therefore, the Supreme Court had compromised the relationship between the legislative branch and the judiciary. In 1991, King’s College, a private religious institution in Edmonton, dismissed Delwin Vriend from his position as a lab coordinator solely on the basis that he was homosexual. He was then prevented from making a complaint under the Alberta Individual Rights Protection Act because it did not include sexual orientation as a protected grounds against discrimination (Vriend v. Alberta, par. 3-9). The case was put before the Supreme Court of Canada in 1998, and the Supreme Court found that the omission of sexual orientation was a violation of Equality Rights under Section 15 of the Charter which states that everyone is equal before and under the law with equal benefit and protection (Vriend v. Alberta, par. 3-9). Furthermore, the Court found the law failed the Section 1 Oakes Test because there was no pressing and substantial objective in omitting sexual orientation, no rational connection to protecting against discrimination, and it was not a minimal impairment in regards to violating Section 15 (Vriend v. Alberta, par. 123-7). As a result, the Supreme Court ruled that the act, in its exclusion of sexual orientation, violated the Charter and was thus invalid. Moreover, it enforced an adjustment to the law, determining that sexual orientation must be included on the basis that “judicial intervention [was] warranted to correct a democratic process that has acted improperly,” (Vriend v. Alberta, par. 176). The dissenting opinions by Justice John C. Major, as well as public and legal expert criticism, were quick to respond. It was argued that the Court had overstepped its boundaries as the judicial branch of Canada by playing a legislative role that should
have remained with the Parliament. Constitutional dialogue theory is the concept that the judicial and legislative branches engage in dialogue with each other by responding to each other: the legislature passes a law that is struck down if unconstitutional, insofar as the legislature can create new legislation designed to accomplish similar objectives while respecting the constitution (Forcese and Freeman, 42). This enhances democracy by generating a greater degree of accountability because both branches review the merits of the other. However, with the Court deciding to change the law itself, the dialogue was lost and the democratic process through the legislature was compromised. Additionally, critics argued that the act of creating legislation by the Court had violated the separation of powers and eroded the power of the only truly democratic branch of the government. The role of the judiciary is not to make law and create policy, but to ensure that those laws that are democratically passed do not violate constitutional rights as a check on the other branches of the government. The issue was no longer between parliamentary supremacy and judicial review, but instead judicial supremacy, which goes against all traditions and principles valued in a democratic society. The dissenting Justice and the Alberta government went so far as to consider the use of the notwithstanding clause in Section 33 of the Charter to prove a point; however, the threat was never enacted (Forcese and Freeman, 42-44). The strong backlash against the decision was a direct result of the implementation of remedies that overstepped the Supreme Court’s power and consequently damaged the relationship between ensuring a democratic society and respecting the rule of law. Had the Court decided to apply a more remedial minimalist approach, it would have ensured the democratic process was upheld while also guaranteeing that constitutional rights were being protected. Since Vriend v. Alberta, it appears that the judiciary learned from its mistake
in other recent constitutional cases and has been adopting a more minimalist approach to remedies. The Unanswered Abortion Question in R. v. Morgentaler The case of R. v. Morgentaler regarding abortion laws in the Criminal Code was heard by the Supreme Court in 1988, ten years before the backlash of judicial law-making in Vriend v. Alberta, but nonetheless exemplifies the importance of remedial minimalism applied by the Supreme Court of Canada. Allowing the Parliament to debate and propose changes to the law ensures that the rule of law and the democratic process are both respected. The democratic process is valuable for a number of reasons. In particular, it allows governance of the people to be legitimate because the people govern themselves through a system of fair participation and consent. It prevents the wills of individuals, such as those of judges, to be imposed without consent on the people being ruled. At the same time, it provides everyone with the opportunity to voice their opinions and come to a decision on how they should be governed. Even though the Parliament of Canada was unable to reach a decision regarding the criminality of abortion following the Morgentaler case, the process itself embodied the differing values of the people of Canada and the non-democratically appointed judges did not enforce a law that many people would have disagreed with. Prior to the R. v. Morgentaler decision in 1988, Section 251(4) of the Criminal Code made it illegal for women to receive an abortion unless they had obtained a certificate from a therapeutic abortion committee of an accredited or approved hospital. Dr. Henry Morgentaler, Dr. Leslie Smoling, and Dr. Robert Scott were three doctors that had established an abortion clinic in Toronto for women who were unable to get approval from the hospital committees. They claimed that a women has the right to decide herself whether to have an abortion. They were
arrested and charged with violating the Criminal Code, and the issue was brought before the Supreme Court of Canada as to whether the anti-abortion laws were a violation of Section 7 of the Charter, which guarantees everyone’s right to life, liberty and security except in accordance with principles of fundamental justice. In a 5 to 2 decision, the Court ruled that the law indeed violated Section 7 in that the requirement of approval by a therapeutic abortion committee was manifestly unfair due to its containment of an unreasonable number of potential barriers, including unduly long delays, all-male committees, and geographic and financial differentials in treatment, such that the right to security is violated (R. v. Morgentaler). Furthermore, the law had failed all three steps of the Section 1 Oakes test in that the process was arbitrary, beyond necessary for evaluating the conditions for an abortion, and the impairment of compromising a women’s right to security outweighed the law’s objective of protecting the fetus (R. v. Morgentaler). As a result, the three doctors were acquitted of the charges. Although the Court’s decision indeed ruled Section 251 of the Criminal Code regarding abortion as unconstitutional and thus contains no validity nor force, it did not rule that there existed a right for abortion. Both the majority opinion, with the exception of Justice Wilson, and the dissenting opinion agreed that the judiciary has no role in creating rights that are not explicit in the Charter nor has the duty of interpreting the Charter to protect interests that it was not initially intended to protect (R. v. Morgentaler). Additionally, there did not exist a consensus within the Canadian population regarding the right for abortion, and thus to make a decision on such an issue would not respect democracy. By not applying a law-making remedy declaring a right for abortion, the Supreme Court played its role as the check of the Parliament, and allowed the legislative branch to have the issue undergo the democratic
process. In the following years, the Parliament under Prime Minister Brian Mulroney proposed a law under the Criminal Code that allowed abortions only under life and health threatening conditions as approved by a medical practitioner, but the bill was defeated in the Senate after an unprecedented tie vote (Hausegger, 270). Moreover, in another decision concerning Morgentaler, the Supreme Court ruled that Nova Scotia’s attempt to legislate abortion under provincial criminal law was ultra vires to the power of the provincial parliament (Sharpe and Swinton, 142). As of 2015, the Canadian Parliament has not been able to pass another abortion law, meaning that there exists no national criminalization of abortion. This further demonstrates the significant lack of societal consensus on the issue, and that a Court ruling would have raised concerns of the power regarding the Courts in creating law. The Morgentaler case illustrates the judiciary’s role of addressing politically contentious issues in criminal law by applying a remedial minimalist approach in striking down an unconstitutional law while preserving the democratic process by not encroaching on the duty of the other branches of the government in making legislation. The Illegal Prostitution Problem in Canada (Attorney General) v. Bedford The decision of the Supreme Court of Canada in the 2013 ruling of Canada (Attorney General) v. Bedford is another example where the judiciary applied a minimalist method to remedies and deferred the invalidation of the laws by one year. By doing so, the Court had made its judgement on whether the laws were a violation of the Charter, and after deciding they were, allowed the legislative branch to amend the laws rather than doing so itself. Thus, the remedial minimalist approach protects Canadian rights while also respecting constitutional democracy and the legislature’s authority. Prior to the Canada (Attor-
ney General) v. Bedford case, the act of prostitution itself was not illegal, but Canadian prostitution laws in the Criminal Code made it illegal to keep or be in a bawdy-house (Section 210), to live off the avails of another’s prostitution (Section 212(1)), and to attempt to stop and communicate with someone in a public place for the purpose of engaging in prostitution (Section 213(1)). Terri-Jean Bedford, Amy Lebovitch, and Valerie Scott were three prostitutes who were charged with violating the three aforementioned laws, but claimed that the laws surrounding prostitution threatened the right to security as protected under Section 7 of the Charter. The case went to the Supreme Court of Canada in 2013, where the Court unanimously ruled that all three of the laws were unconstitutional on the basis of violating the right to security: the prohibition of bawdy-houses prevents prostitutes from working in their own homes, or a safer regulated area, and instead forces them to work on the streets; the prohibition on living off the avails of another’s prostitution prevented prostitutes from hiring safeguards such as bodyguards, drivers, and receptionists; and the prohibition on communication in a public area for prostitution prevents prostitutes from screening a client for safety concerns in a familiar place (Canada (Attorney General) v. Bedford). Additionally, the laws did not adhere to the fundamental principles of justice under Section 7 nor the proportionality test under Section 1. The laws were consequently deemed invalid but no further remedies were pursued. Furthermore, the Court allowed the legal force of the decision to be deferred by one year to allow for prostitution to continue to be regulated while the legislature is in the process of creating new laws. In their decision, the Justices determined that it was not the role of the judiciary to implement further remedies by changing the legislation, especially in regards to such a complex and delicate matter, but rather merely to determine the constitutional validity of
the laws. The Court stated that “it will be for Parliament, should it choose to do so, to devise a new approach reflecting different elements of the existing regime,” (Canada (Attorney General) v. Bedford). The remedial minimalist approach applied by the Court is one that ensures that the protection of constitutional rights does not contravene with the principle of democracy and the separation of powers, in where the legislature has the prerogative to propose and pass laws. Furthermore, by not granting remedies to the case, the Supreme Court also increased the efficacy of passing legislation regarding prostitution by reducing the limits imposed by remedies. Imposing a legal remedy would constrain the legislature whereas minimizing remedies allows for flexibility in creating new laws. In December 2014, the Canadian Parliament passed Bill C-36, enacting legislation that criminalizes the act of purchasing sex rather than the act of selling sex to shift the illegality away from sex workers (Levitz 2014). Some of these laws, although very controversial, provide sex workers with legal immunity as a method of protection. As a result, the Court’s decision to employ a minimalist method towards remedies strengthened the bond between the judiciary and the Parliament, and as well maintained that the rule of law, constitutional rights, and the democratic process are all recognized. The Right for Physician-Assisted Suicide in Carter v. Canada (Attorney General) The recent 2015 decision regarding medically assisted suicide in Carter v. Canada (Attorney General) shares many similarities with the decision addressing prostitution laws in the Bedford case. Again, this case is another example of the Supreme Court utilizing remedial minimalism in its ruling to ensure that constitutional rights are upheld while the separation of powers and the democratic process are honoured. Furthermore, Carter also exemplifies the conjunction of judicial
activism and remedial minimalism due to the overruling of a previous Supreme Court decision. Preceding the Carter case in 2015, the right to assisted suicide was illegal under the Criminal Code sections 14, 21, 22, 222, and 241, and the laws were ruled to be not in violation of Section 7 of the Charter as determined in 1993 by the Supreme Court in Rodriguez v. British Columbia (AG) (Carter v. Canada (Attorney General)). The Carter case began in 2009, when Gloria Taylor was diagnosed with ALS, an irremediable neurodegenerative disease that would cause her body to deteriorate slowly until she died. She wanted to be able to have a physician assist in her death before the disease prevented her from dying peacefully. She challenged the constitutionality of the laws in court, supported by Lee Carter, who had previously helped her mother obtain a physician assisted suicide in Switzerland (Carter v. Canada (Attorney General)). The Supreme Court unanimously found that the laws prohibiting assisted suicide did in fact violate Section 7 of the Charter in all three regards: they violated the right to life in that the prohibition on assisted suicide may lead to people committing suicide prematurely on their own out of fear of being unable to do it when the suffering was intolerable; it violated the right to liberty in that they deny people the right to make decisions concerning their dignity, autonomy, bodily integrity and medical care; and it violated the right to security by leaving people to endure intolerable suffering (Carter v. Canada (Attorney General)). Moreover, the Court determined the laws to not be in accordance with both the fundamental principles of justice of Section 7 and the proportionality requirement of the Oakes test of Section 1. The objective of the law was to protect vulnerable persons, whereas the laws prohibiting assisted suicide were overly broad in proportionality and minimal impairment by including people who were able to properly consent and not vulnerable (Carter v. Can-
ada (Attorney General)). The Supreme Court overruled its decision in the Rodriguez case, and determined that the laws were unconstitutional, thus had no legal force, while allowing the decision to be suspended for a year. It was evident that the Court had adapted to the change in social values since 1993, and that stare decisis “is not a straightjacket that condemns laws to stasis,” (Carter v. Canada (Attorney General), par. 44). The Court in the Carter case had applied a method similar to the one it used in the Bedford case in regards to striking down the laws and deferring them, but also included two conditions in its remedy. The Court declared as a remedy that the laws are void only insofar as they prohibit physician-assisted death for a competent adult who (1) properly consents to the termination of life, and (2) has a grievous and irremediable disease that will cause intolerable suffering (Carter v. Canada (Attorney General), par. 172). Likewise to Bedford, the Court argued that, “it is for the parliament and provincial legislatures to respond, should they so choose, by enacting legislation consistent with the constitutional parameters set out in these reasons” and issuing further remedies would, “create uncertainty, undermine the rule of law, and usurp Parliament’s role,” (Carter v. Canada (Attorney General), par. 1245). Withholding any further specific implementation or adjustments to the law, the adoption of the remedial minimalist approach by the Court protects the protection of Section 7 rights under the Charter, and ensures that the separation of powers under the Canadian constitutional democracy is sustained. Additionally, the two conditions set by the court serve as guidelines for the legislature to use as a basis for the creation of new laws surrounding assisted suicide. Had the Court administered a higher degree of remedies to form new laws, there would have been similar backlash as seen in Vriend in that the judiciary would have been criticized for encroaching on the role of the legislature. It is clear that remedial minimal-
ism in the Court’s decision had fostered the relationship between the judiciary and the Parliament in legitimately adapting to new social values into law. Remedial Minimalist Failure? A Counterargument raised in the Abuse of Public Power in Canada (Prime Minister) v. Khadr In its 2010 decision regarding the controversial case of Canada (Prime Minister) v. Khadr, the Supreme Court of Canada upheld the separation of powers by not infringing on the federal executive’s responsibility over foreign affairs despite ruling that the federal government had violated Khadr’s Charter rights. Critics have brought the counterargument against judicial minimalism stating that the Court’s insufficient remedies in its decision had caused a failure to protect the fundamental principles of justice and the rule of law by not stopping the executive from abusing its power (MacFarlane 2012). However, this section will address the counterargument by asserting that heavy remedies imposed on the Parliament would have been outside of the Court’s judiciary competency and caused political turmoil between the branches of the Canadian government. Omar Khadr, a Canadian citizen, was 15 years old in 2002 when he was shot twice in the back and detained by American forces in Afghanistan following a military firefight. By reason of being an “enemy combatant” and facing charges of several war crimes, he was placed in the American Guantanamo Bay military prison where he was subject to various methods of torture including sleep deprivation and physical abuse for purposes of intelligence gathering and interrogation (Canada (Prime Minister) v. Khadr). The Canadian authorities were aware of this and additionally participated in “interviews” that were preceded by torture, as Khadr was interrogated by a number of Canadian Secret Intelligence Service (CSIS) officials as well (Canada (Prime Minister) v. Khadr). In 2006, a US military court determined that the
detainees in Guantanamo Bay had suffered from actions that violated US laws and the Geneva Convention against the use of torture, and thus Canada had the right to repatriate Khadr; however, the Canadian federal government under Prime Minister Stephen Harper repeatedly refused (Canada (Prime Minister) v. Khadr). The case was brought to the federal courts which ruled that the interrogation techniques used at Guantanamo Bay by Canadian agents were in fact a violation of Khadr’s right to life, liberty and security guaranteed by Section 7 of the Charter, and that the federal government had the obligation to repatriate Khadr (Canada (Prime Minister) v. Khadr). In a defiant response, the federal government announced that it would not repatriate Khadr and appealed the decision to bring the case before the Supreme Court of Canada, which made its final decision in 2010. In its 9 to 0 decision, the Court upheld the federal court’s ruling that Khadr’s Section 7 rights were grossly violated, but overturned the ruling to order the executive to repatriate Khadr on the basis that Khadr was, at the time, under the control of American authorities and repatriation would have been a political action under the prerogative of the executive (Canada (Prime Minister) v. Khadr). The Court argued that it did not have the competency nor the power under the Constitution in judging and commanding foreign affairs, which is an exclusive power of the executive. As such, it left it up to the federal government to decide which remedies to seek. The federal government continued to refuse to repatriate Khadr until the United States pressured Canada in taking him back after the conviction of his crimes, and Khadr was sent back to Canada to serve the rest of his sentence in 2012. It is with little doubt that the Canadian government had infringed on Khadr’s Section 7 Charter rights. Furthermore, the Canadian federal government had disregarded the rule of law by abusing its public power and failing to perform its duty of ensuring Canadian
rights, particularly those guaranteed in the Charter, are protected by refusing to repatriate a Canadian citizen undergoing blatant human rights abuses on the basis of political image (Berard 2014). The counterarguments to remedial minimalism are raised by its critics who claim that the lack of remedies applied in the Khadr decision allowed the violation of Charter rights to continue and enabled Stephen Harper’s government to abuse its public power while the Supreme Court stood by and watched (Macfarlane 2012). Thus, the judiciary failed to ensure the executive respected the rule of law and uphold democratic values. To address this counterargument, it is important to note that ordering the federal government to repatriate Khadr would have forced the Court to operate outside of its competency and caused a clash between the branches of the government. Firstly, a repatriation order from the Supreme Court to the federal government was outside of the Court’s competency and function. To begin, despite the decision that “courts are empowered to make orders ensuring that the government’s foreign affairs prerogative is exercised in accordance with the constitution,” the Court stated that it was incompetent to make a decision regarding the foreign affairs of the federal government (Canada (Prime Minister) v. Khadr, par. 37). In a constitutional democracy such as the one Canadians enjoy, one of the benefits is a clear separation of powers between the judicial, executive, and legislative branches. To force the executive to act in its foreign affairs is for the judiciary to encroach on exclusive executive powers and blur the separation. Additionally, prior to hearing the case, it was the executive branch that had been assessing Khadr’s situation, possessed all the relevant documents, and been in communication with American authorities. For the Court to make a decision while unaware of the complete situation and unversed in foreign policy could have unforeseen consequences. Furthermore, repatriation was not nec-
essarily a legal issue, but a political one. It was the United States that had held Khadr under charges of war crimes at the time, and it was the Canadian executive’s burden to enter negotiations for getting Khadr back to Canadian soil. Forcing the federal government into negotiations for repatriation with another country has never been done in any high court in the world. Moreover, for the Court to be entering in what appears to be partisan political issues would be uncharacteristic of its role as the judiciary. Secondly, an order for the federal government to repatriate Omar Khadr by the Supreme Court would have generated a clash between the judicial and executive branch of the government causing a constitutional crisis. As mentioned in the section of Vriend v. Alberta, such a remedy would change the relationship between parliamentary supremacy and judicial review, as it should be in the Canadian governance, to a conflict of parliamentary supremacy against judicial supremacy. If Parliament acted upon the order to repatriate Khadr not on its own but under threat from the judiciary, it may appear that the judiciary has leverage in influencing executive action. On the other hand, if Parliament ignored the ruling of the Supreme Court, which was very possible considering the extensive backlash and appeals, then the rule of law would be blatantly violated. This is especially problematic because the case involves an executive act, not legislation as was the question in previous cases, whereby there are no legal notwithstanding methods. A noncompliance with the Supreme Court ruling would mean the executive completely ignores judicial authority. Indeed, there were statements made by the Prime Minister and the Minister of Foreign Affairs at the time that suggested the executive would not comply with a Supreme Court judicial order for repatriation (McCharles 2010). A dilemma forms in which either decision made by Parliament on the ruling of repatriating Khadr would have weakened
the relationship between the judicial and executive branches of the government, and thus compromises the basis of constitutional democracy. As such, the Supreme Court, to avoid the battle of governmental branches and the loss of legitimacy on either side, did not set a ruling to order the repatriation of Khadr. It is important to reiterate that it was the executive government that was not respecting the rule of law by ignoring the judicial ruling that there was a clear Section 7 violation. The executive has the autonomous right to decide its actions regarding both the time frame and manner of application. The remedial minimalism used by the Court in declaring the unconstitutional acts of the federal government was completely valid in that it respected constitutional democracy and the separation of powers. It encouraged the executive to properly use their exclusive powers without threat of judicial encroachment, but it was the executive that failed to uphold the rule of law on its end. To clarify, I am not arguing from a normative position that the Supreme Court was absolutely justified in not stepping outside the bounds of jurisdiction to stop the executive from continuing to violate the rule of law. Perhaps the judiciary’s decision to not enact heavier judicial remedies permitted the executive to continue its violation of Khadr’s rights. Rather, I am arguing that the judiciary, taking into consideration its constraints of foreign affairs competency and the constitutional crisis that would have followed if the executive would not comply with the decision, did what it could in finding a balance between democracy and the protection of individual rights. Although not a perfect solution, the Court created a legally binding decision to protect Khadr’s rights by condemning the executive’s actions, while it also allowed the executive to have jurisdiction within its appropriate domain. Had the executive followed through by legitimizing the Court’s condemnation of its actions, neither individual rights
nor the respect for the democratic separation of powers would have been infringed upon. Conclusion Through exploring the decisions of the Supreme Court in Vriend, Morgentaler, Bedford, Carter, and Khadr, it is clear that by adopting a remedial minimalist approach in its decision-making, the Supreme Court of Canada has ensured that the protection of rights, the rule of law, and constitutional democracy are respected in unity. The minimalist remedies applied in its decisions foster a strong balance between the judiciary, the legislature and the executive. It allows for dialogue between the different sections of the government and harmony within the different responsibilities they have. As a result, the Canadian political system can avoid a constitutional crisis where the different branches become stuck in a power struggle and instead ensure that efforts aimed at the protection of rights and democratic governance remain complementary rather than in opposition to each other. Controversial legislation will undoubtedly continue to appear. Bill C-51 and its role in Canada’s anti-terrorism laws is a good example of the balance required between national security and individual rights. Armed with the Canadian Charter of Rights and Freedoms, the Supreme Court will continue to play the vital role of protecting Canadians in a free and democratic society.
Cases.cited Canada (Attorney General) v. Bedford  3 S.C.R. 1101, Supreme Court of Canada, http://scc-csc.lexum.com/ scc-csc/scc-csc/en/item/13389/index. do. Canada (Prime Minister) v. Khadr  1 S.C.R. 44, Supreme Court of Canada, http://scc-csc.lexum.com/scccsc/scc-csc/en/item/7842/index.do. Carter v. Canada (Attorney General) 2015 SCC 5, Supreme Court of Canada, https://scc-csclexum.com/scc-csc/ scc-csc/en/item/14637/index.do. R. v. Morgentaler  1 S.C.R., Supreme Court of Canada, http://scccsc.lexum.com/scc.csc/scc-csc/en/ item/288/index.do. Reference re Succession of Quebec  2 S.C.R. 217, Supreme Court of Canada, http://scc.csc.lexum.com/ scc-csc/scc-csc/en/item/1643/index.do. Vriend v. Alberta  1 S.C.R. 493, Supreme Court of Canada, https:// scc-csc.lexum.com/scc.csc/scc-csc/en/ item/1607/index.do.
Wo r k s . c i t e d
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Chrétien and/Iraq: Explaining Canada’s Decision to.Say.No to War and the Role.of International Law Samuel Gregory a b s t r a c t a b s t r a i t On March 17th 2003, the Prime Minister of Canada, Jean Chrétien, addressed the Canadian Parliament on the ever-pressing issue of Canada’s role in a potential Iraq war, stating, “If military action proceeds without a new resolution of the Security Council, Canada will not participate.” Canada’s decision to not join two of its closest allies, the U.K and the U.S, in the war against Iraq, presents an interesting puzzle as to why Canada made the decision to comply with international law. This paper seeks to address the question, what role did international law play in the context of the Canadian decision to not go to war with Iraq? Ultimately, I argue that normative theories of compliance, more specifically constructivist and legitimacy theories, best explain Canada’s decision, while illustrating the prominent role that international law played. While making this argument, I also reject the instrumentalist argument that could explain Chrétien’s decision for Canada.
Le 17 mars 2003, dans son adresse au parlement canadien concernant le sujet pressant du rôle du Canada dans une guerre potentielle en Iraq, Jean Chrétien proclame « Si l’action militaire se produit sans une nouvelle résolution du Conseil de sécurité, le Canada n’y participera pas. » La décision du Canada de ne pas s’engager dans la guerre avec deux de ses alliés proches, les États-Unis et le Royaume-Uni, présente une énigme intéressante en rapport aux raisons pour lesquelles le Canada a décidé de respecter le droit international. Cette dissertation tente d’adresser la question concernant le rôle du droit international afin de relier son influence à la décision canadienne de ne pas intervenir en Iraq. En conclusion, je soutiens que les théories normatives de la conformité, telles que les théories constructivistes et celles de légitimités expliquent de manière raisonnable la décision prise par le Canada tout en illustrant le rôle important du droit international. En formant cet argument, je rejette ainsi l’argument instrumentaliste qui tente d’expliquer la décision de Chrétien pour le Canada.
Keywords:.International.Law.Iraq.war Jean.Chretien.compliance.theories Introduction On March 17th 2003, the Prime Minister of Canada, Jean Chrétien, addressed the Canadian Parliament on the ever-pressing issue of Canada’s role in a potential Iraq war, led unilaterally by the United States. The famous decision, which many (including Chrétien) have claimed to be his most prominent legacy as Prime Minister, stated that: Over the last few weeks, the Security Council has been unable to agree on a new resolution authorizing military action [in Iraq]. Canada worked very hard to find a compromise to bridge the gap in the Security Council. Unfortunately we were not successful. If military action proceeds without a new resolution of the Security Council, Canada will not participate. (Chrétien 2008) The decision for Canada not to participate in the Iraq war poses an interesting puzzle, especially given the pressure for Canada to join the ‘Coalition of the Willing’ with the superpower to the south, the United States, and its strong commonwealth partner, Great Britain. There are two main narratives in the literature that try to explain this decision. First, in many of the statements, speeches and writings concerning the decision to not participate in the war, the narrative by Chrétien and those working closely with him was that the decision was made out of a respect for international law, international institutions, and multilateral diplomacy (Chrétien 2008, Goldenberg 2006, Martin 2003). However, other evidence suggests another narrative; that the decision was made as a result of domestic pressures that made the cost of going to war too high for the Liberal government. These pressures included strong public opinion against the war, a looming election in Quebec – a province that saw the least support for any type of military involvement in Iraq, and a domestic attitude that
Canada can and should remain independent from the United States when making foreign policy decisions (Keating 2006, McWhiney 2003, O’Connor and Vucetic 2010). This contrasting evidence begs the question, what role did international law play in the context of the Canadian decision to not go to war with Iraq? Was the decision made out of a high deeply engrained respect for international law which reflected the Liberal and Canadian identity, or was it as a result of a calculated approach that understood the costs from domestic pressures to be too high for Canada to not comply with international law? Ultimately, I argue that international law played a prominent role in the decision for Canada to not join the U.S in the war on Iraq, and that this role can best be explained through normative theories of compliance to international law. More specifically, I use constructivist arguments of internalization and acculturation and theories of legitimacy to explain why Canada complied with international law. I will make my argument in three sections. First, I will give a brief overview of the international legal context of the Iraq war, what laws at the U.N Security Council affected the decision, and ultimately why the U.S chose to go to war. Second, I will discuss the two competing narratives of why Canada chose not to join the U.S led war, focusing first on the argument that it was done out of a respect for international law and institutions that had become part of the Canadian identity, and second that it was an instrumentalist decision based on domestic factors that made the cost of war too high. Third, I will demonstrate how constructivist theories of international law, specifically those of internalization and acculturation, as well as theories of legitimacy, explain the compliance by Canada to international law. I will also argue here that instrumentalist arguments do not adequately explain Canada’s compliance. Instead, the sec-
ond narrative can also be explained by constructivist theories of compliance. To be sure, I will strengthen my argument through giving the counterfactual case in which the international laws of war did not exist, and predict how Canada may have acted in this scenario. Finally, I will conclude by summarizing the main findings of this paper. Before I begin my paper, it is important to make one distinction. In this essay, I am specifically looking at explaining through theories of compliance why Canada decided to comply with international law and not to join the U.S in the Iraq war. It is not the aim of this paper to explain why the U.S did not comply with international law, but instead to give an explanation for Canada’s actions under the Chrétien government, despite the potential repercussions it could have had for Canada’s relationship with both the US and the UK. The International Legal Context of the Iraq War In this first section, I will give an overview of the international legal context that led to the Iraq war, and identify the international laws that were complied with and not-complied with by states in the decision to not join or join the Iraq war. The path to the U.S declaration of war in Iraq arguably began with the September 11th attack on the Twin Towers in New York by al-Qaeda Islamic extremists. The attacks led the U.S and its allies to go to war in Afghanistan, where their goal was to overthrow the Taliban regime and eliminate the al-Qaeda terrorist threat that had brewed within its borders. By the end of 2002, however, the debate in the US had shifted from not only the war in Afghanistan, but of the perceived threat of Iraq under the dictatorship of Saddam Hussein (Chrétien 2008). It was controversially claimed (by many in the U.S in support of going to war) that Iraq had also become a breeding ground for terrorists, and that this, combined with the threat of Weapons of Mass Destruction (WMD), was a
threat to American national security. While the threat was certainly topical in the United States, the issue of Iraq potentially possessing WMDs was one that the international community had been dealing with for many years. Following Iraq’s invasion of Kuwait in 1990, the Security Council (SC) adopted resolution 678, which authorized the use of force against Iraq in order to eject it from Kuwait and to restore peace and security (Resolution 678 1990). On 3 April 1991, the SC adopted resolution 687, which set out the ceasefire conditions and imposed obligations on Iraq to eliminate its weapons of mass destruction (Resolution 687 1991). Importantly, it suspended but did not terminate the use of force under resolution 678. Just over a decade later, the issue would resurface on November 8 2002, when resolution 1441 would pass at the SC, which would give Iraq a “final opportunity to comply with its disarmament obligations” and warned Iraq of the “serious consequences” if it did not (Resolution 1441 2002). The SC resolution passed unanimously with no veto, indicating that the issue was important to the international community and that the obligation of Iraq to disarm was taken seriously. Iraq quickly denied all charges, and permitted the re-entry of United Nations arms inspectors back into the country. Despite the arms inspection mission in Iraq, the US was not satisfied that the WMDs did not exist and continued to see Iraq as a threat. It became apparent that resolution 1441 would not be sufficient grounds for the United Nations to give permission to the U.S to invade Iraq, and so the Americans tried to get a second, more explicit resolution passed that would allow for the use of force (Chrétien 2008). This, predictably, did also not go over well with the SC, and by March 17th, 2003, the US had decided to bypass the UN and declare war on Iraq unilaterally. By making the decision to go to war, the U.S and its allies broke 2 prominent articles of the Charter of the United Nations, and 2 promi-
nent principles of the Charter of The Nuremberg Tribunals. They were (Brecher, Cutler and Smith 2005): CHARTER OF THE UNITED NATIONS Article 2 (3): All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. Article 2 (4): All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. CHARTER OF THE NUREMBERG TRIBUNALS PRINCIPLE VI: (a) Crimes against peace: Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances; Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i). PRINCIPLE VII: Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law. If and when a state violates the above laws, its actions will be recognized by the international community as an illegal act of war. However, there are two exceptions to the above rules that would give a state the authorization to go to war, which are also made explicit in international law. The first is the right of individual or collective self-defense in response to an armed attack, outlined under Article 51 of the Charter of the United Nations. The second is the specific authorization of force by the Security Council under Chapter VII as a last resort to maintain internation-
al peace and security (Brecher, Cutler and Smith 2005). The international consensus was that the US had neither, thus making the decision to unilaterally attack Iraq illegal under international law. A further point of international contention was over whether a country could engage in preemptive self-defense, which is a concept recognized in customary international law. In this case, it has been argued that ‘interceptive self-defense’ can be lawfully used to avoid a greater harm to the international community, when there is “clear and convincing evidence” of a risk for an imminent and unavoidable attack (Brecher, Cutler and Smith 2005, Dinstein 1994). The U.K and the U.S framed their argument for war on the idea that the WMD posed an imminent and unavoidable threat. However, more than 550 inspections by the U.N over a four-month period failed to uncover evidence that Iraq either had the weapons, or had the capacity to use them (Brecher, Cutler and Smith 2005). Hence, the international community also largely rejected the argument that the U.S had the right to preemptive self-defense. Today, many in the international community generally understand the actions of the U.S as illegal. Although the US government and a number of legal scholars attempted to put together a patchy argument as to the legality of the attack, and have since claimed moral and human rights arguments to legitimize the war in Iraq, the general international consensus rejects these arguments (McGoldrick 2004). Kofi Annan, Secretary General of the UN at the time, stated in an interview with the BBC on September 16 2004 that the US did not have the legal authority for the war (Brecher, Cutler and Smith 2005). In addition, a letter sent to the White House on behalf of more than one thousand law professors and US legal organizations have stated the following: “We consider that any future use of force without a new U.N Security Council Resolution would constitute a crime against peace or aggressive war in violation of the U.N Charter” (Brecher,
Cutler and Smith 2005). These are just two examples of the many international condemnations on the war’s illegality. Although an interesting backdrop to the war, this overview was largely centered on the relationship between the U.S and the U.N. However, it is important for us to examine the context in which decisions were made in order to understand the role of international law on Canada’s decision. As previously stated, it is not the purpose of this paper to explain why the U.S decided to not comply with international law. Instead, I am curious as to why Canada did comply with international law, given the closeness of the Canada-US relationship and the pressure to do so from both the U.S and the U.K. Indeed, there was certainly an expectation on Canada to follow two of its closest allies to war, as it had often done so in history. It is the question of why this was not the case in the Iraq war that I will turn my attention next. Canada and the Iraq War: Explanations for the Decision to Say No There are two competing narratives on why Canada decided not to join the U.S in the war against Iraq. In this section I will briefly explore each one respectively; first, that Canada would not join the war unless the U.S went through the appropriate international channels, most importantly the SC, and received explicit approval for the use of force, or second, that the decision was made as a result of numerous domestic pressures including public opinion, the looming Quebec election, and a push for Canadian independence from U.S foreign policy. The first narrative, largely emphasized by the Liberal Party, Chrétien, and many close to the government, is one of respect for international law and institutions. As early as August 14th 2002, confidential Canadian intelligence suggested, “U.S action against Iraq to implement regime change is a question of when, not if…” (Chrétien, 2007). By September, the issue was on the in-
ternational agenda, as Chrétien (2008) sat down with British Prime Minister Tony Blair to discuss the potential of an Iraq invasion. At the meeting, Chrétien made it clear that that Canada would only join the war if the decision were made through the appropriate international channels. During the conversation, Chrétien stated: “I want to be with you guys, but I can’t go in without a United Nations Resolution” (Chrétien 2008). Chrétien later claims this conversation prompted the British Prime Minister to talk to President Bush, which encouraged the President to address the SC. Resolution 1441 was passed a few days later (Chrétien 2007). In the same month, President Bush and Prime Minister Chrétien also met for a joint announcement on border security and cooperation. They used this opportunity to hold a private meeting about Iraq. Eddie Goldenberg, a senior political advisor to Chrétien, recalls after the meeting “he [Chrétien] made it very clear to the President that Canada’s participation in the war with Iraq would depend on the support of the United Nations” (Goldenberg 2006) Perhaps the clearest indication that Chrétien was committed to finding a solution in respect of international law was at a major address the Prime Minister gave to the Council on Foreign Relations in Chicago, on February 13 2003: …It is imperative to avoid the perception of a ‘class of civilizations’. Maximum use of the United Nations will minimize that risk. And so how the United States acts in the days ahead will have profound consequences for the future. I am convinced that working through the United Nations, if at all possible, as difficult and as frustrating as it sometimes can be, will immeasurably strengthen the hand not only of the United States, but also of those around the world who want to support it. The speech was instrumental in outlining Canada’s position. Despite the mainstream media message that the decision came late, Chrétien recalls a
conversation he had with Andrew Card, Bush’s Chief of Staff, just four months after the war had started, and in which Card claimed that “you told us right from the beginning what you intended to do, and it was our mistake that we did not take you seriously” (Chrétien 2008). Chrétien and the Liberal party’s commitment to a diplomatic solution in compliance with international law through the use of international institutions can also be seen in their efforts to find a compromise between SC states in the early months of 2003. When it became clear that a second resolution, following 1441, would not pass through the SC, Chrétien worked closely with diplomats and other heads of states to find a way to delay any invasion until the U.N-led mission in search for WMDs could be completed (Chrétien 2008). Chrétien stated: “My hope was that if we could get an extra six to eight weeks, the U.S military strategists would have to delay their plans long enough to give everyone more time to work out a diplomatic solution” (Chrétien 2008). Goldenberg (2006) also further discusses the role that Chrétien took to encourage a diplomatic solution as “an honest broker between the U.S and Great Britain on one side, and France and Germany on the other”, claiming that the Prime Minister spent considerable time trying to work with other heads of states to find a compromise solution. Despite their considerable efforts, they were of course unsuccessful. In contrast to the above narrative, it has also been argued that the decision to not join the U.S in the war against Iraq was made as a result of domestic political pressures. This narrative focuses on the three main arguments that public opinion, the election in Quebec and the Liberal Party’s commitment to distancing themselves from the influence of the U.S while maintaining Canadian values, created too high of a cost for the Liberals to commit to the war (Keating 2006, McWhiney 2003, O’Connor and Vucetic 2010). Public opinion in Canada over whether or not the nation should go to
war was not deeply divided; survey evidence illustrated that support for the war was weak throughout 2002 (O’Connor and Vucetic 2010). According to a Gallup International Poll in January 2003, 44% of Canadians voiced some support for war in the pre-war period. However, this declined once the war began to as low as 31%. National polling data, collected by surveys from Ipsos-Reid, Gallup, Léger, SES, Pollara, Compas, Pew and ICM, all pegged opposition to the war as between 40 and 60 percent, while at no point did support for unilateral or near-unilateral US action receive more than 11% approval (O’Connor and Vucetic 2010). The public’s anti-war stance was also evident in the 16 February protests, which involved between 150,000-200,000 protesters in Montreal and around 60,000 between Vancouver and Toronto (O’Connor and Vucetic 2010). Clearly then, the Canadian public was not in favor of conflict with Iraq. Because Chrétien was finishing up his third and final term before retiring from politics, there certainly would have been pressure on him to finish his time as Prime Minister on positive note and leave a legacy that resonated with Canadians. Similarly, it can be argued that the Liberal Party was under pressures in Quebec. The province was about to enter an election, and the Federal Liberal Party was hoping for success for the provincial Liberal party over the anti-Federalist and separationist Parti Quebecois. In Quebec, support for any type of war or intervention was the lowest in all of the provinces. O’Connor & Vucetic (2010) argue that this is a result of Quebec’s long sustained Venusian identity and its historical dislike for the use of force whenever Ottawa decides to militarily intervene abroad (536). The size of the protests in Quebec gave this argument further weight, making it credible that the anti-war sentiment in Quebec contributed to the Liberals’ decision not to go to war. Finally, and perhaps most influentially, was the commitment of the Liberal party to maintain independence
from the U.S and uphold Canadian values. Indeed, this would ring true of Chrétien as a Prime Minister. As Keating (2006) argues, “He is a politician who goes to the heart of Canadians’ values.” Indeed, Chrétien had come to office with a commitment “to distance Canada from the close bilateral embrace that had marked Canadian-American relations under the Mulroney government” (Keating 2006). Whitaker backs this argument, stating that “Canada still retained a sufficient margin of independence to say no to the Americans, a position popular in all parts of the country, save Alberta, and one in strict keeping with long standing Canadian attachment to multilateralism and international institutions” (Whitaker 2006) Further, Whitaker argues that “Chrétien showed courage and determination in following a course that preserved some measure of Canadian self-respect.” Edward McWhinney (2003) also reflects on the role of Canadian values in making the decision to not declare war on Iraq, stating that Chrétien had to “make a choice for Canada…either to remain faithful to the Lester Pearson/Paul Martin Sr. position from the earlier ‘golden era’ of Canadian foreign policy or to yield instead to the ever stronger importuning of the US neighbor and free trade partner.” This speaks to the pull that Canadian society felt towards in having to work with its southern partner, a pressure that McWhiney (2003) describes as an “ever-mounting continental imperative of coordinating and, if need be at times, subordinating our foreign and defense policies to continental priorities determined in Washington D.C.” This second set of arguments presents a strong case that the decision for Canada not to participate in the Iraq war came from considerable domestic public pressures, and was the result of a calculated decision making process that pegged the cost of going to war too high for the Liberals. Indeed, it has been argued that the multilateral diplomacy and respect for international law narrative of the Liberals was simply a conve-
nient disguise to mask the true reasons why Chrétien did not want to support the war (O’Connor and Vucetic 2010) In this section, we have seen two competing narratives for why Chrétien made the decision on March 17 2003 that Canada would not join the US war in Iraq. The first focused on a deeply held respect for international law and international institutions, while the second reflects on the domestic pressures that made the cost of war significant for the Chrétien government. While these two narratives are not completely mutually exclusive, it is helpful to separate them for the purpose of analysis in an IR context. It is this analysis that I will turn to next. Understanding Canada’s Decision: Explanations through IR Theory In this section, I seek to explain the role of international law in Chrétien’s decision to not join the US in the Iraq war by using prominent theories of compliance. Specifically, I will reflect on the above two narratives to assess whether Canada’s compliance can be best described by normative arguments or instrumentalist arguments of compliance to international law. Ultimately, I argue that the best explanation for Canada’s compliance is derived from normative theories of compliance by invoking both constructivist and legitimacy theories to understanding Canada’s compliance. In doing so, I reject instrumentalist arguments as being insufficient to explain Canada’s actions. First, it is important to make the distinction between instrumentalist and normative approaches to understanding compliance with international law. Instrumentalist approaches are those that understand countries as rational actors who make self-interested decisions by calculating the costs and benefits of specific actions. They can be influenced by a number of elements, including enforcement, reputation, management/capacity constraints and domestic politics. In contrast, normative scholars understand compliance not only in terms of ra-
tional self-interest, but also influenced by normative factors such as international norms, state identity, legitimacy of laws or institutions, and morality. As I have previously stated, I argue that normative theories of compliance, specifically constructivist arguments made by Koh (1998) and Goodman and Jinks (2004) and legitimacy arguments made by Hurd (2007) work best to explain Canada’s compliance to the international laws of war and their decision to not join the U.S in attacking Iraq. To show this, I will give a brief summary of each argument and explain how each argument relates to the narrative of Canada’s respect for international law and international institutions. Koh (1998) argues that the key to explaining compliance lies in the internalization of international norms into the domestic sphere, which happens within the transnational legal process. He explains internalization by identifying three stages in the process. The first is interaction - where actors (states, international organizations, NGO's, businesses and other 'norm entrepreneurs') interact with each other in the international arena. The second is interpretation; as a result of the interaction, states will "force an interpretation or enunciation of the global norm applicable to the situation" (Koh 1997). The third step is internalization; the states will internalize the norm and make it a part of their identity. His theory can be summarized as the following: states comply with a law once it has internalized the law and had it become a part of its new identity. Certainly, this theory would provide a logical argument in the context of the case being studied. The language Chrétien uses in the month leading up the decision and in recounts of the events in his biography suggest a deep belief that respect for the U.N and the laws of the U.N Charter are a part of Canadian identity. The deep public discontent with the idea of unilaterally attacking Iraq (note that domestic support was never above 11%) suggests that the most fundamental laws of the U.N have, over time, become internalized into Ca-
nadian norms and the Canadian identity. Thus, while the first two steps of Koh’s (2008) theory are not applicable in the present case, Canada’s decision to respect international law is a clear indication that Canada has reached the third stage in many respects. Goodman and Jinks (2004) suggest the role of acculturation as a mechanism for ensuring compliance by state actors. Acculturation can be understood as the "societal pressures upon a state to assimilate with a higher normative standard" (Koh 2005). They understand the state as an "institutionalized organizational form embedded in a global cultural order" (Koh 2005). The authors argue that the higher normative standard explains why states will follow specific rules that are not in their immediate interests, for the long-term interest in the maintenance of the legal international community. Essentially, they believe that states comply to
“This.contrasting evidence.begs.the question, what role did.international law play in the context of the Canadian decision to not go to war with Iraq?” international laws because of a social pressure to be a part of a higher moral international system, and to do so they must acculturate the norms of the international system, including compliance with the laws of the system. This argument also carries weight in explaining Canada’s compliance, as Chrétien’s statements often alluded to the idea that Canada could not join the US unless it went through the appropriate international legal bodies. This could explain in part why, as previously shown, Chrétien was willing to make some shortterm sacrifices to the Canadian interest in Canada-US relations for the longterm benefit of the international legal system. Additionally, it has been ar-
gued that the group of states known as the ‘coalition of the unwilling’ did not join the US in part out of respect for the higher international system (Chrétien 2008). Again, this argument serves as a strong suggestion that Canada complied with international law for a number of normative reasons, and not purely on calculations of their self-interest. The third argument for understanding Canada’s compliance comes from the legitimacy that Canada associates with the U.N and the S.C as decision-making bodies. In order to understand this argument, it is important to reference the legitimacy argument of Ian Hurd (2007). Hurd (2007) seeks to understand legitimacy by studying its impact at both the unit level (individual actors) and the structural level (institutions), as well as the interaction between the two. He argues that at the unit level, "legitimacy changes the actors interests through the process of internalization" and that at the structural level; "widespread belief in the legitimacy of an institution changes the 'objective' structure of payoffs for actors involved. Finally, he argues that "the interaction between the two levels takes the form of symbolic resources that gain their power by their association with the legitimated institution.” Furthermore, Hurd (2007) argues that a rule becomes legitimate to an individual "when the individual internalizes its contents and reconfigures his or her interests according to the rule" and that once this happens, "compliance becomes habitual." He argues that the internalized legitimacy can change the relationship between the individual and the institution, and that these change that can result in a change in the rate of compliance. The legitimacy of institutions at the structural (international) level increases when many actors of the institution internalize the rule. Consequently, this affects compliance because it "affects how states calculate their decisions by changing the structures of incentives that they face." Hurd’s (2007) argument certainly carries weight in the case of Canada’s decision to comply
with international law. Once again, it can be seen through much of Chrétien’s discourse that the U.N and the SC were highly legitimate institutions, and that the laws of war had become legitimized and therefore internalized by the Canadian state and the Canadian people. Furthermore, the legitimization of the U.N by numerous state actors including the vast majority of the SC, further gave the institution and the laws legitimacy. In contrast to the U.S’s view of the U.N and the SC, this argument plays a strong role in explaining Canada’s compliance to international law and in making the decision not to bypass the SC and declare war on Iraq. On the other hand, instrumentalist arguments could be used to explain the second narrative of why Canada complied with the international law and decided to work within international institutions. However, as I will argue, I do not believe this argument is a strong one, because it cannot withstand scrutiny when the risks of non-compliance are taken into account. Slaughter (1995) is one of the key scholars in forwarding instrumentalist arguments that focus on domestic factors. She argues that national policy debates (such as joining the U.S in declaring war on Iraq) can be reflected in party policies at election time, and in free and fair democracies, governing parties can be held accountable for their policies and run the risk of not winning re-election. It can be further argued that the political accountability of elections forces a tight alignment of citizen preferences with policy. Governments that break international rules run the risk of being seen as illegitimate or unaccountable and, as a result, compliance is seen as the most rational option. Indeed, these arguments carry weight in the context of the domestic narrative described above. Public opinion was certainly against the war, and the looming Quebec election put pressure on the government to make policy decisions that reflect the public opinion in the province. Finally, the Liberal party has long been a believer
in the values of multinational organizations and ran on a platform of distancing themselves from the Mulroney era Canada-US relations. As a result, following the U.S into the Iraq war would likely have been criticized highly by Liberal supporters, which may hurt the Liberal party in future elections. At face value, the instrumentalist argument above presents a plausible explanation for why Canada complied with international law given the risks associated with not complying. However, I believe there are two strong arguments that debunk this theory. First, I argue that much of the anti-war sentiment, and the values towards the United Nations and multilateral diplomacy held by both Canadians and within the Liberal Party are a result of the previously discussed internalization of international laws and norms into the Canadian conscience and identity. This internalization and acculturation of the legitimacy of the United Nations and the international laws that govern it directly contributed to the so-called ‘domestic’ factors that instrumentalists would use to make their case. Second, the domestically based narrative does not take into account the heavy pressure that the Chrétien government faced to follow the United States to war. Chrétien (2008) describes the opposition to Canada’s decision as being both large and powerful, including “the rightwing opposition parties, right-wing editorialists, ring-wing premiers of Alberta and Ontario, the right-wing CEO’s, the right-wing think tanks and even some right-wing Liberals. Many in these groups feared US retaliation, and strained diplomatic ties that could hurt further negotiations over other important issues such as Free-Trade and border security” (315). Certainly, if these arguments were taken into account, the cost-benefit analysis that the Chrétien government faced would not be painted quite so neatly. Ultimately, the instrumentalist approach fails to give a strong explanation to Canada’s decision making, and therefore should be rejected in favor of constructivist arguments.
To be sure, we can briefly look at the counterfactual, a situation in which the Charter of the United Nations and the laws that authorize the use of war did not exist. This counterfactual is certainly hard to illustrate, as the United Nations and the fundamental international laws of the Charter have had an incredible influence in the second half of the 21st Century, to such an extent that it would be almost impossible to imagine a situation in which “all things remain equal,” that the international laws of war and the Charter did not exist. However, if we assume this to be the case, it can be argued that the internalization of the laws and norms surrounding the use of force and the declaration of war would not have occurred. The language and arguments used by the Chrétien government, which often referenced the work of previous Liberal governments and their commitment to international law and relations, would simply not have been the same. If those laws had not internalized themselves into Canadian society and into the Canadian identity, then the domestic pressures could have been very different. Indeed, in the absence of these laws, I argue that the constructivist and legitimacy arguments would simply not hold up, thus proving their explanatory role in Canada’s decision. This further goes to prove that the instrumentalist argument simply does not work as an explanation for Canada’s decision in 2003, as the pressures that the government did face domestically were nothing more than a result of the internalization of legal norms into the Canadian identity, thus strengthening the explanatory weight of normative theories of compliance. Conclusion This paper set out with the goal of answering the question: what role did international law play in Canada’s decision to not go to war in Iraq? As I have shown, Canada’s decision to not join the U.S presents an interesting puzzle. In this paper, I have argued that normative arguments of compliance
best explains Canada’s compliance to the international laws. More specifically, I argued that constructivist arguments of internalization and acculturation, and arguments of legitimacy of laws and international institutions, works best to explain Canada’s decision to not go to war. At the same time, I have shown that instrumentalist arguments do not adequately explain Canada’s compliance to international law, and instead the domestic factors that unquestionably influenced Chrétien’s decision, are best explained instead by constructivist theories of compliance and international law. Indeed, many of the domestic pressures faced by Chrétien are a result of the internalization and acculturation of international law into Canadian society, and the legitimacy of the laws and institutions to which Canada gives so much respect. It can be concluded then, that normative theories of compliance can be best used to explain the actions of Canada, and that international law did indeed play a role in the Canadian decision not join the U.S in the war on Iraq.
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The Islamic State of Iraq and.Al-Sham:.the.Group’s Nation-Building.Project Through.the.Instrumental Use.of Violence Egor.Fedorov
a b s t r a c t a b s t r a i t On June 29th, 2014, Abu Bakr al-Baghdadi declared the establishment of a Caliphate, announcing the Islamic State’s goal of rule over the worldwide Muslim community and rejecting the modern system of international affairs. While the state-building practices of the group have been well covered in the literature, little attention has been accorded to its nation-building project. This paper attempts to fill in this gap, arguing that the group has consciously attempted to construct an ideological community through the instrumental use of violence, a similar process to that seen in Saudi Arabia a hundred years ago. Yet the Islamic State’s strategy of international mobilization and rejection of the modern nation-state model are likely to compromise the viability of its own state-building project, its nation-building enterprise and the identity it is engineering may well be more resilient.
Le 29 juin 2014, Abu-Bakr al-Baghdadi annonce l’établissement d’un califat et révèle le but ultime de l’État Islamique; gouverner la communauté Musulmane mondiale tout en rejetant le système moderne des affaires internationales. Bien qu’il existe une grande littérature concernant les pratiques utilisées envers la création de l’État, le projet de cette construction est un sujet qui n’a pas été exploré en détail. Cette dissertation tente de combler ce vide et suggère que le groupe a consciemment tenté de construire cette identité commune à travers l’utilisation instrumentale de la violence, une technique observée lors de la création de l’état d’Arabie Saoudite le siècle dernier. Bien que le rejet par l’État Islamique du système international basé sur l’état-nation pourrait compromettre la viabilité de son projet de construction étatique, l’identité que le groupe est en train de former à travers leur projet de construction nationale pourrait bien s’avérer plus résilient.
Keywords:.ISIS.nation.building.identity. violence umma The name chosen by the Islamic State of Iraq and al-Sham (denoted here as ISIS) to characterize itself is intriguing. A state is the basic unit of the contemporary international system and constitutes a territorially bound sovereign entity, while the communities that inhabit these territories are referred to as nations. The (theoretical) correlation between the boundaries of the two brings the concept of the nation-state. ISIS on the other hand is a violent jihadist organization that has seized control of large parts of Syria and Iraq over the past two years. According to their strong ideological stance, there are no nations, no sovereign conception of the state, or an international society of equal entities. The world is divided in two between believers and non-believers. Yet, the group de facto controls a territory larger than the United Kingdom, has declared the creation of a Caliphate, and claims legitimate authority over not only the population under its direct control but the entire umma, the Muslim community worldwide (Wood 2015). Hence, the group has in fact entered into the process of erecting a “state” with its own community. This paper will attempt to show that despite their forceful rejection of the concepts of nation-state and nationalism, ISIS has undertaken a nation-building project through similar techniques used by nationalists groups throughout history. It will be argued that ISIS has attempted to shape and construct a common identity through an instrumental use of violence and the clear and narrow definition of an “Other”. After a brief set of definitions and clarifications, I will first show how the group articulated its historical and “national” narrative around the creation of a Caliphate. Second, I will discuss the strategies the group has employed on the ground for community and identity building. Finally, I will conclude with an assessment of ISIS’s strategy through a comparison
with Saudi Arabia’s state formation process in order to shed some light on the group’s long-term prospects. My aim here is to talk about ISIS’s aspiration to erect and control a Caliphate. A Caliphate is the territory ruled by a Caliph, the righteous successor of the Prophet Muhammad as the leader of the entire umma (Withnall 2014). In other words, the group is trying to construct an effective “state” – a territorial organization with its own community. According to Robert Rotberg, an effective state must perform well “in the delivery of the most crucial political goods” (Rotberg 2010, 2). Political goods encompass the effective control of the state’s territory, the “monopoly over the legitimate means of violence” (to quote Weber), a predictable and functioning legal system, and the effective provision of a full range of public goods to citizens (Rotberg 2010, 1-4). In his study of Latin American state formation, Miguel Centeno further argues that “state legitimacy has been at least partly based on the creation of nationalist sentiments that not only bound the population together, but also make the state the center and ultimate expression of that collective identity” (Centeno 2003, 167, emphasis added). In other words, an effective state needs not only a functioning structure, but also substance - a meaningful common identity that brings its subjects together. While the nascent literature on ISIS has tended to focus on its infrastructural development, little has been written about the “substantial” aspect of its nation-building project. This paper focuses on the latter in an effort to fix this imbalance. The choice of “nation-building” as a defining feature of the group’s project may appear inappropriate, given ISIS’ aggressive rejection of nationalism (Wood 2015). However, along the next two sections I will show how the group’s community-building strategy closely relates to
nation-building practices seen throughout history. A Powerful Narrative: The Caliphate Despite their forceful rejection of the nation-state, ISIS has effectively managed to construct a “national” narrative articulated around the revival of the Caliphate that calls for the global consolidation of the umma and that heavily relies on violence and the strict definition of an Other. In this section, I will attempt to demonstrate how ISIS instrumentally uses the symbols articulated around their narrative to create “national myths” and how this narrative gets spread through efficient propaganda. On June 29th, 2014, Abu Bakr al-Baghdadi, ISIS’ leader, declared the establishment of a Caliphate. Most Muslims consider that the last “legitimate” Caliphate was in place more than a thousand years ago (Wood 2015). Through this highly symbolic declaration, ISIS claims to revive the institution of the Caliphate, such as the one that existed under the Prophet Muhammad, the “Golden Age” of the Muslim civilization (Wood 2015). On this same occasion, the Islamic State of Iraq and al-Sham renamed itself simply as the “Islamic State”. This move symbolized their claim to universality: there is only one legitimate caliphate, one righteous government on Earth, and all other “emirates, groups states, and organizations are now null and void” (Stern and Berger 2015, 269). In doing so, ISIS differentiates itself from other terrorist organizations seen before: while most groups operate within state boundaries, ISIS rejects them entirely to assert itself as a territorially entrenched entity. Al-Qaeda, for instance, conducted mainly spectacular “hit and run” demonstrations of violence, without any entrenchment. ISIS is no longer a terrorist organization, but a territorially defined community that has transcended state delineations. Automatically, this bold announcement of a caliphate identified
the community over which ISIS now claims legitimate authority: the umma worldwide. The umma therefore is the “nation” ISIS intends to bring together. It also identifies the Other, the “outgroup” against which their “in-group” gets defined by. (Fearon and Laitin 2000, 851). In ISIS’s understanding, the world is now “divided into two camps; the camp of Islam and faith, and the camp of disbelief and hypocrisy” (Dabiq 2015, 10). The Other is therefore any non-Muslim - in their own understanding of what “Muslim” means, to be discussed below - repeatedly targeted as “Crusaders” who have long interfered in the Middle East and prevented the Muslim civilization to flourish. Allegedly, they notably are the ones who brought the last caliphate in name, the Ottoman Empire, to its knees through the Sykes-Picot agreement (Smith 2014). Sykes-Picot refers to the line drawn by France and Britain during the First World War to delineate respective zones of influence in the Middle East. ISIS hence uses it as a powerful symbol to target Western power as the main reason for the decline of the Muslim civilization (Wood 2015). The organization calls on a violent and constant jihad, or holy military struggle, against not only the Crusaders, but all the “infidels”. As we will see below, in its extreme interpretation of the world, any person in disaccord with ISIS’s understanding of the world and the Quran is an infidel and represents an inherent threat to the caliphate and the Muslim community at large (Stern and Berger 2015, 269). Territorially, ISIS claims to re-conquer the lands under the control of the caliphate at the apex of the latter’s expansion. Finally, in its narrative ISIS has a final stage, a destiny that the Muslim community has to fulfill. In its propaganda magazine Dabiq, the group states “the spark has been lit here in Iraq, and its heat will continue to intensify… until it burns the crusader armies in Dabiq” (Dabiq 2014, 2). A final battle is expected to happen in the city of Dabiq, in which Rome’s armies are doomed to be defeated by the Ca-
liphate’s forces. Now that most of the symbols used by ISIS have been laid down, they remain to be tied to their instrumental use in the practice of myth making. John Coakley defines “national myths” as symbols and stories of the past that are used by elites to construct and shape the understanding of the “nation” they intend to construct or perpetuate (Coakley 2004). Here lies the paradox of the group’s name: although ISIS claims to be furiously anti-nationalist, most of the symbols it uses can be classified as myths. First, the birth of the “nation” which dates back to the Prophet Muhammad represents the myth of origins (Coakley 2004, 531532). Under the umbrella of myths of development, the Golden Age is represented by the caliphate, “an idealized form of government understood to have existed in an era when the Muslim world flourished” that ISIS wishes to re-establish (Stern and Berger 2015, 279). The “Crusader’s invasion” and Sykes-Picot are portrayed as “interventions by alien forces” leading to the Dark Age of the umma. Finally, ISIS’ Caliphate Narrative ends with myths of destiny; the re-conquest of the lands once under the control of the Caliphate and the victorious battle against the Crusaders in Dabiq (Coakley 2004, 550-553). Therefore, the terrorist group offers a complete “national” narrative trickling-down from the declaration of a Caliphate. Despite their rejection of nationalism, this represents a nation-building practice into which every modern nation has engaged. To promote its “national” vision, ISIS has resorted to a very efficient and extremely violent propaganda. The group has been extremely active on social media, posting frequent updates and videos of the life in the Caliphate and of its war victories. Since July 2014 it has also regularly issued a magazine, Dabiq. In releasing this media, the group outreaches to Muslims worldwide, the population outside of ISIS’s territorial grasp over which it claims sovereignty. While ISIS’s
terrorist attacks have instilled fear in the global citizenry, the group’s trademark has become its unusual and extensive display of violence, beheadings and mass executions. Hence, violence is ubiquitous in both ISIS’s national narrative (through the jihad and final destiny against Crusaders), and in the way this narrative gets communicated to the Muslim diaspora. One may think that such atrocities would tend to alienate potential recruits and sympathizers from the group. Indeed, even al-Qaeda’s leadership, once a close partner, distanced itself from the group because it could not tolerate ISIS’s unrestrained and indiscriminate violence (Maher 2014, 24). However, as the next section explains, violence is an integral aspect of the group’s identity core and sits at the center of its nation-building project.
“In other words, an effective state needs not only.a.functioning structuture, but also a meaningful common identitiy that brings its subjects together.” The Nation-Building Project in Practice Now that the “theoretical base” of ISIS’s nation-building project has been detailed, this section will demonstrate how violence is instrumentalized in practice to create a sense of common identity among the group’s subjects. First, I will examine the group’s ideology and its practice of takfīr to show how its in-group identity and boundaries are defined through violence. Second, I will prove that violence is a strategy consciously applied by ISIS for its nation-building project by referring it to a pre-existing strategy called the “Management of Savagery”. Finally, I will provide a tangible example of the group’s application of this strategy to show the concrete causal link between violence and community building.
Violence within identity: Unrestrained practice of takfīr In Islam, the practice of takfīr is the “pronouncement that someone is an unbeliever and no longer Muslim”; in other words, the practice of excommunication (Stern and Berger 2015, 269). The sentence for apostasy in Islam is death (Wood 2015). Declaring takfīr on a fellow Muslim is a dangerous process - if the accusation is false, the accuser himself has committed apostasy. The applicability of takfīr – that is, the conditions under which an apostate is to be declared as such - is subject of debate among Salafis, an ultra-conservative branch of Islam thinkers (Stern and Berger 2015, 269). Due to the severity of the punishment, the more moderate Salafi “adhere to a ‘high evidentiary threshold’ making it more difficult to use takfīr” (Stern and Berger 2015, 269). Notably, in these moderate cases the accusation cannot be made on the grounds of one’s actions, as one’s actions are not informative about one’s beliefs. ISIS, on the other hand, has been practising what can be dubbed as takfīri jihadism (Crooke 2014). At the heart of it lies a very narrow understanding of what it means to be a Muslim, where one’s behaviour and actions provide enough evidence to justify the accusation of apostasy (Wood 2015). Groups such as ISIS “have demonstrated little tolerance for pluralism, and prefer instead to effectively excommunicate those who fail to embrace their interpretation of Islam” (Stern and Berger 2014, 270). In setting such a low evidentiary threshold, ISIS is emulating the situation of early Muslims surrounded by non-Muslims when expending the first Caliphate at the time of the Prophet. ISIS sees itself as surrounded by non-Muslims, as a result of its own exclusive definition of what qualifies as “Muslim” (Wood 2015). This narrow understanding of takfīr lies at the core of the group’s identity-building project. Indeed, ISIS asserts this particular practice as they
simultaneously describe militant jihād as an “individual global obligation” (Stern and Berger 2015, 273). Hence, ISIS identifies any Muslim as having the obligation to both conform to their purist ideology, as well as to hunt down the “unbelievers” that fail to fit their narrow model. In other words, ISIS generates an identity for its subjects through this practice of takfīri jihadism. The very definition of this identity, both narrow and inherently violent, then has the effect of establishing a “fighting society”, whose violence is directed towards all the unbelievers (Naji 2004, 27). Fearon and Laitin describe this precise dynamic in their work on violence: Take the proposition that the social construction of group identities necessarily involves differentiating one’s self or one’s group from an Other, and that therefore identity construction necessarily entails the potential for a violent, antagonistic relationship with the Other. […] It is […] a constructivist-type argument due to its claim that not genes but the internal logic of discourses drives identity construction (Fearon and Laitin 2000, 851). 1 Here, we have the creation of an extensive Other through the inherent violence instilled into the community’s identity. Intended Use of Unrestrained Violence - The Management of Savagery In order to understand the group’s excessive bloodlust, an increasing number of authors and scholars have directed their attention to the “Management of Savagery,” a book written by the Islamist strategist Abu Bakr Naji in 2004 whose strategy closely correlates with ISIS’s actions on the ground (Stern and Berger 2015, 115; Crooke 2014). Naji believed that a “broad civil war within Islam would
lead to a fundamentalist Sunni caliphate” (Wright 2014). The “management” of the chaos generated by the conflict between a decaying government and a new challenger would then be crucial in determining the outcome of the dispute, with unrestrained violence, notably the persecution of other minorities, being the victorious strategy (Crooke 2014). Indeed, out of this chaos would then emerge an “addressable market” of alienated, leftover Muslims “for the group to radicalize and transform into ardent true believers” (Mostaque 2015). Here again, a direct link can be established with Fearon and Laitin’s piece - the two authors talk of “thugs” that can easily be seduced by the “high that accompanies crime and given honour for engaging in murder performed for lofty goals” (Fearon and Laitin 2000, 869). Naji’s strategy therefore generate these marginalized “thugs” who then see an interest in joining ISIS for pursuing “their own agenda under the banner of communal conflict,” may it be personal pride or the search for a purpose in life (Fearon and Laitin 2000, 855). There is a clear parallel between Naji’s theory and ISIS’s actions; the shocking beheadings and other acts of extreme violence are to be understood as generating ISIS’s community. This is how the group achieves the “fighting society” they intend for, a society unified around takfīri jihād and directed against the unbelievers in order to fulfill the group’s destiny in Dabiq. Naji does outline the creation of this “fighting society”, confirming the conscious strategy undertaken by the group (Naji 2004, 27). As a concrete illustration of the successful application of the Management of Savagery, consider ISIS’ early territorial victories in Iraq. The group arose thanks to the continuous sectarian strife fomented by the pro-Shiite government against the Sunni minority (Smith 2014). The government’s loss of legitimacy and Sunni’s perceived threat of persecution provided a perfect opportunity for ISIS to step in and frame the conflict in an “us against them”
dichotomy (Smith 2014). Joining the various Sunni protests, it provoked the Iraqi state by showing its terrorist flag at various occasions (Smith 2014). The Shiite government’s response following the killing of a police officer in Hawija during an anti-government protest back in April 2013 resulted in the mass killing of hundreds of Sunnis (Smith 2014). Coupled with the Iraqi state’s power vacuum and loss over the monopoly of violence in certain regions, the mass killings encouraged the Sunni Iraqi communities to run into the arms of ISIS (their Sunni in-group) in search for much needed protection. This allowed the Islamic State to foment violence with the out-group and “tie the hands of their co-ethnics,” so that “in-group leaders increased their co-ethnics’ demand for protection from the out-group and at the same time made sure there were no alternative set of leaders to protect them” (Fearon and Laitin 2000, 855). The application of the Management of Savagery legitimized ISIS at the expense of the decaying Iraqi government, allowing it to seize control over important regions in the country. In Syria, the Civil War engendered a power vacuum and similar opportunities for ISIS to exploit. Today, the group employs the same strategy. As Graeme Wood argues, its beheadings of Western citizens and terrorist attacks in the Western hemisphere serve the same purpose of provocation used against the Iraqi government, this time directed to the US-led international anti-ISIS coalition. The aim of these attacks is to provoke retaliation, which fully bolster the group’s narrative that the umma is alone against all. One striking example is Obama declaring that the Islamic State is “not Islamic,” hence applying takfīr against the organization. This has only served to bolster ISIS’s narrative and confirm their accusations against the U.S as an enemy that “lies about religion to serve its own purposes”, seeking to destroy the umma (Wood 2015). Overall, I have attempted to show two findings in this section. First, violence
is encoded in the DNA of the community created by ISIS through the practice of takfīr. Second, the group consciously follows a strategy based on outright violence and bloodshed, the Management of Savagery. Together these two elements, the creation of a “fighting society” and strong identification of an Other, provide a powerful vector for solidarity and community cohesion. This is how ISIS’ community is engineered through violence – its instrumentalization is used to build a “nation”. The Caliphate Model: Long-Term Perspectives Although the Islamic State has been successful at gaining first-hand legitimacy, it remains to be seen if its prospects of nation building are viable in the long-term. Will the Management of Savagery persist in creating a cohesive community, or will it exhaust itself under its own brutality? In order to test this assessment, I propose a brief comparison with Saudi Arabia’s state formation pattern. The early trajectory of Saudi Arabia resembles the current strategy displayed by ISIS. It finds its origins in the alliance of al-Wahhab, a Muslim revivalist, and ibn Saud, a Najdi oasis ruler (Menoret 2013, 747). The former is at the origins of Wahhabism, today the official Saudi Arabian state religion. Al-Wahhab strongly believed that the “purest” Muslim society is the one that existed when the Prophet stayed in Medina. Hence, in his view, every Muslim should emulate the principles and rules present at this period (Crooke 2014). Al-Wahhab considered any deviance or innovation from this interpretation as sufficient grounds for the person in question to be considered an apostate, which justified execution (Crooke 2014, al-Rasheed 2015). Here we again find an extreme practice of takfīr – the logic with which al-Wahhab and al-Saud in the late 18th century almost succeeded in conquering the whole Arabian peninsula before being crushed by the Ottoman armies
(Crooke 2014). Two hundred years later, it is with the same logic that Abd al-Aziz would unite with various tribes in order to conquest the Arabian Peninsula, a conquest that would culminate in the create of the contemporary Saudi Arabian state (Menoret 2013, 748). Hence, the Wahhabi ideological tools and brutal methods of conquest used by the al-Saud are strikingly similar to those used by ISIS today. The main difference is that Saudi Arabia ended up entering the international community of states. Under external pressures, the al-Saud had to moderate the Wahhabist tendencies of the most extremists factions, limit itself to the borders imposed by the British, institutionalize a state system and enter into diplomatic relations with the West (Menoret 2013, 748-749). Let us now turn towards the implications of this divergence. Saudi Arabia’s “success” lies in its very adaptation to the nascent international system at the time. By entering into formal relations with the international community and accepting their “rules of the game,” the kingdom has managed to stay relevant as a state despite gross human rights violations and increasingly frequent comparisons between allegedly similar Saudi’s and ISIS’ implementations of the Sharī’a law (Crooke 2014, al Rasheed 2015). Unlike Saudi Arabia a hundred years ago, ISIS has opted to challenge the current international system by suggesting its own model of political and religious organization and ideologically opposing to alter it. Furthermore, the international community has unanimously mobilized to crush the organization in response to the group’s shocking crimes and has rejected prospects for integration. Could ISIS’ model have any possibility of success despite these harsh conditions? In terms of state-building prospects, the group would have to develop a functioning state apparatus under unpredictable conditions of constant assault and air strikes. In such conditions, it will prove extremely difficult for the orga-
nization to build durable institutions and the infrastructure required for a strong, functioning state. In terms of nation-building prospects, the group has so far proven very successful at attracting a constant flow of jihadists and believers from around the world. The international mobilization may actually reinforce every single mechanism of the group’s identity-building project. A constant flow of violence directed at the Islamic State frighteningly perpetuates the logic of the group’s “national” narrative by reinforcing its dual vision of the world. It has the potential to solidify their in-group members through the creation of more chaos, which generates more “thugs” – that is, more members for the community. Moreover, ISIS is propagating its nation-building project through the numerous schools it controls in the controlled territory; hence, the project is currently being directly transmitted to the new generation of jihādi (Wood 2015). Furthermore, the Syrian Civil War shows no sign of de-escalation, the Iraqi state is still prone to sectarian strife, and both states have lost their legitimacy vis a vis their respective Sunnis populations. In these conditions, it will be difficult to win the hearts and minds of the Sunni people for the central governments. Finally, the rise in the last forty years of Saudi Arabia as a regional power in the Middle East, most notably due to oil revenue, may also help ISIS’s nation-building project to endure. Similar to the soft power of the United States – as in the spread and dominance of American culture and values throughout the Western world – the soft power of the Wahhabi doctrine too spread throughout the Middle East (Crooke 2014). The rise of ISIS may well serve as a catalyst for these ideas and attract people leaning towards this fundamentalist ideology, reaffirming their belief system. Thus, the Islamic State’s ideological construction of the umma may transcend the failure of its state-building project and remain present as a powerful idea in the region in the years to come.
Conclusion In this essay I have attempted to shed light on ISIS’s nation-building strategy, which has been somewhat less discussed than their state-building achievements. Indeed, if the group intends to carve out an effective state, it must also build a community and inject a sentiment of loyalty into it. If this essay succeeded in its endeavour, it has shown that the group has consciously been acting in this regard through an instrumental use of violence. ISIS has instilled violence in every single portion of its nation-building project: in its narrative, in the definition of the boundaries of the umma as opposed to the Other, and in its actions on the ground level through the Management of Savagery. This violence has permitted the group to first gain legitimacy to then entrench itself territorially. As “violence has the effect […] of constructing group identities in more antagonistic and rigid ways,” the consequences of such an undertaking could be substantial for the population under ISIS’s control (Fearon and Laitin 2000, 846). On top of its potential to strengthen identities, ISIS’ nation-building project is currently sustained through the curriculum taught at their schools, is helped by the lack of legitimacy of the Iraqi and Syrian local governments, and its ideology is similar to the Wahhabi doctrine that has spread through the region these last four decades. Hence, while the state-building project proposed by the group may seem hardly achievable given the international community’s mobilization to crush the organization, the ideas and community-building project of the group may well remain and prove influential.
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M a rg i n al i za t i o n a n d the H i g h Se a s: Pi rac y as a F u n c t i o n o f Po l i t i c ally S u st a i n a b l e Gri evances i n So m a l i a an d Ni g e ria Jamie.Cernek a b s t r a c t a b s t r a i t African piracy is a devastating enterprise that diverts billions of dollars from the global economy each year, preventing profits and international aid from reaching Africans and thereby stunting development on the continent. Now more than ever it is crucial that the problem of piracy be solved; however, there is little academic consensus on why piracy arises and how it can be dealt with definitively. In this article, I argue that the degree to which grievances held by the population of African nations are sustainable affects the growth of piracy.
La piraterie africaine est une entreprise dévastatrice qui détourne des milliards de dollars de l’économie mondiale chaque année et empêche les profits et l’aide internationale d’atteindre les Africains et donc par conséquent retarde le développement du continent. Aujourd’hui plus que jamais, il est crucial que le problème de la piraterie soit résolu ; toutefois, il y a peu de consensus académique à propos des raisons pour lequelles la piraterie surviendrait et des façons de l’aneantir définitivement. Mon article propose que l’accroissement de la piraterie peut être attribuée aux différents degrés de griefs tenus par la population des pays africains.
Keywords:.oil.Nigeria.Somalia.grievances. defensive.piracyMEND.bunkering.failed. state Piracy is a worldwide phenomenon, reducing the global economy by billions of dollars annually and leaving heartbreaking violence in its wake. The adverse effects of piracy have been most drastic within Africa, where piracy disrupts shipment of foreign food aid, disturbs social and environmental ecosystems, by encouraging participation in informal economies (Hastings and Phillips, 2015). Efforts by the international community to create navies and maritime policing institutions have been successful in certain regions, such as Somalia, but they only address the issues’ symptoms. Unless the international community, as well as African nations, combat the root causes of piracy, the phenomenon will remain. This paper will attempt to uncover the causes of piracy. My thesis argues the degree to which grievances are sustainable affects the growth of piracy. According to Murshed, “[grievances are] a motivation based on a sense of injustice in the way a social group is or has been treated,” (Murshed, 2004). This paper will be split into three sections. In the first, I review the literature that has been written thus far on the causes of African piracy. I analyze two major theories that scholars have proposed, and I identify a gap in the literature that my research fills. Second, I will use the comparative case studies of Somalia and Nigeria in order to analyze the role of grievances in facilitating piracy. Although grievances played a role in both countries in the rise of piracy, the grievances against the international community in Somalia were unsustainable, and therefore led to the decline of piracy in that region, while in Nigeria the grievances are sustainable and thus piracy has increased in the area. Lastly, my conclusion will discuss that in order for piracy to be definitively terminated, domestic and international forces must first work together to address and recti-
fy grievances on land. Literature Review Although piracy has captured the attention and curiosity of scholars for centuries, there has been relatively little written about the causes of modern piracy, especially in the African context. The two predominant theories on the causes of African piracy, the failed state explanation and the rational economic actor theory, neglect the ideational factors influencing violence and conflict. In this section, I will evaluate the two major theories at length, indicating their use as well as identifying their shortfalls. The conclusion of this section will illuminate a previously underdeveloped component of explaining pirate behavior, which is the importance of ideational factors, including grievances, in facilitating piracy. Failed State Narrative The failed state explanation of piracy proposes that the inability of weak or nonexistent states to control, regulate, or punish criminal organizations, such as pirates, creates opportunities and incentives for these groups to exist (Menkhaus, 2006). The vast majority of proponents of this theory use Somalia as a case study to further prove their argument, due to the collapse of the state government in 1991 and the political and economic chaos that ensued (Sorenson, 2008). Similar to the inability of Middle Eastern states to reduce the power of terrorist groups within their own borders, the failed state literature refers to the inability of states, such as Somalia, to establish and reinforce maritime policing institutions (Boot, 2008). There are many critiques of the ability of this theory to provide a complete analysis of pirate behaviour. First, the theory fails to explain regional variations in frequency of pirate at-
tacks within a country. By the logic of the model, the less capacity for security states or regions have, the more piracy will flourish. However, within Somalia, piracy is concentrated within the region of Puntland, a relatively stable and self-governing segment of the country, as opposed to the southern and central regions, which see the most lawlessness, violence, and anarchy (Hastings and Phillips, 2015). This is due to the complicated, expensive nature of pirate operations, in which at least some baseline of infrastructure and institutional capacity within a country is needed in order to make the practice profitable. Furthermore, the failed state theory is also criticized for its Western bias, in which countries that do not uphold to the Weberian state standard are classified as failed. The Weberian standard emphasizes the necessity of a state to maintain a monopoly of violence and control over its territory; this approach disregards the cultural and historical legacies of African states, including the tendency towards decentralization. In essence, although the failed state theory identifies structural conditions for piracy, it fails to account for regional variation in the phenomenon and shows bias against the cultural makeup of African state. Pirates As Rational Economic Actors Another theory explains piracy by framing the phenomenon as an economic activity as well as in terms of monetary opportunity costs. In the model, piracy is seen as an “unremarkable” practice that fits within the broader discourse on informal economies within African countries (Hastings and Phillips, 2015)1. Furthermore, the model contends that piracy is dependent on whether perpetrators believe the benefits outweigh the risks; the potential rewards, usually in terms of ransom or oil theft, provide motivation for attacks (Pham, 2010). According to Keating, piracy erupted in Somalia in 2005 because members of impoverished coastal communities realized the potential profit that could be made in the practice
(Keating, 2013). This theory, however, is limited in that it frames piracy as a rational choice, in which the only decision potential pirates must make is if they want to make $10,000 a year as opposed to $600 (Joffe-Walt, 2009). The model does not consider whether young men have been coerced into the practice by means other than promises of money. There is no room within the rational actor theory for cultural or ideational factors in the evaluation process of monetary opportunity costs, including grievances against the state or international community. Although profit is certainly a factor in the emergence of piracy, the economic actor model overstates its importance and disregards other influential, more subjective determinants of pirate behavior. In sum, the failed state explanation of pirate behavior accentuates the inability of weak states to effectively police and constrain piracy, while the economic actor theory discusses the role of rational choice in facilitating the phenomenon. However, the existing literature has underdeveloped the degree to which cultural and ideational factors motivate and sustain piracy. Although structural factors, such as profit or inability of the state to provide security, play a role in fostering piracy, they do not fully explain variations in the phenomenon between countries. By analyzing the role of grievances in facilitating piracy in the case studies of Somalia and Nigeria, I hope to fill a gap the literature has produced by focusing solely on the structural and economic factors of piracy. Somalia In Somalia, several developments over the course of the past thirty years have produced feelings of resentment, marginalization, and desperation towards both domestic and international entities. As a result, the dramatic influx of pirate attacks in 2010 followed. This section examines Somali piracy as a function of grievances sustained by the population. First, the paper dis-
cusses the domestic and international incidences, which created sentiments of marginalization within the Somali community, and their continued impact on increasing piracy in the region. Second, I will examine the decline of piracy in the region due to the collapse of the defensive piracy narrative. The domestic incidences, including the 1991 civil war, generated grievances against the state. A discourse on Somali political phenomena cannot take place without mention of the 1991 civil war, in which the corrupt president, Siad Barré, was deposed, the state and its institutions collapsed, and the country split further along clan lines (Rudloff and Weber, 2011). The lack of a central state to provide security and mediating forces, factional warfare between clans, and a subsequent “economy of plunder” led to the destruction of infrastructure, a reversal of development, the deaths of over 250,000 people, and a massive diaspora in which over a million Somalis fled the country (Menkhaus, 2006). The bulk of remaining Somalis were left impoverished, destitute, and desperate: the perfect ingredients in the generation of grievances. According to Rees, “the high levels of desperation in Somalia may also make ‘horizontal inequalities’2 more noticeable,” which have made some individuals feel forced into piracy (Rees, 2011). Such grievances left young, impoverished Somali men susceptible to manipulation by warlords, businessmen, and corrupt political officials who wished to profit from piracy, both monetarily and by causing enough chaos to continue illicit business practices (Montclos, 2012). Because of low institutional deterrents of crime and the growth of feelings of resentment towards the state and international community, Somali piracy spiked in 2010-2011, reaching a high of 176 total attacks in 2011 (Eunavfor, 2015). However, it is the defensive piracy narrative, generated by grievances against the international community, that provided the most legitimacy and motivation for the practice of piracy.
According to Keating, defensive piracy is born out of a resentment toward foreign fishing companies for overfishing and using illegal techniques within Somali borders (Keating, 2013). Since the Somali government has been unable to react to this encroachment of sovereignty, the health of Somalia’s fishing industries have been severely impacted, devastating coastal communities, and the domestic economy has since lost about $300 million annually (Keating, 2013). Face-to-face interviews with Somali pirates show that for many rank and file members, the narrative of piracy as a coast-guard service against foreign overfishing is a motivation and justification for pirate behavior (Hastings and Phillips, 2015). Many Somalis resent the foreign fishing companies and the international community for taking advantage of their collapsed state and harming the environment. The desire to regain sovereignty over their territory leads some to resort to piracy, justifying it as a coast-guard service. Wealthy and powerful backers of piracy are able to hijack these feelings and recruit many susceptible young men to the practice. Furthermore, the coastal communities that supported piracy share the same grievances and find the defensive piracy narrative acceptable and legitimate, leading them to further corroborate pirate behavior. Although the defensive piracy narrative was able to generate piracy in the late 2000s, it fell out of favor with the local populace as the social and traditional costs of piracy came to outweigh feelings of marginalization by the international community. According to Hansen, piracy began to threaten the fishing business, the sector for which piracy in the region flourished to protect (Hansen, 2011). Moreover, community and religious leaders started to condemn piracy for its contrast with conservative Somali and Islamic traditions (Hansen, 2011). As piracy spreads prostitution and HIV/AIDS, obstructs foreign entities from distributing food aid, and adds to the culture of violence, more and more Somalis
are opposing the practice (Hastings and Phillips, 2015). Although grievances against the state and international community remain, they are not enough to sustain the defensive piracy narrative against the cultural and social destruction caused by piracy. The legitimacy and frequency of piracy in the region is therefore evaporating, which is empirically supported by the report of only two pirate attacks taking place in 2014 (Eunavfor, 2015). Incidentally, piracy in Somalia may continue to decrease due to grievances against the pirates themselves. In essence, although the grievances sustained by the Somali population against the state and international community produced piracy in the region, the adverse effects of piracy outweighed the feelings of marginalization and injustice, therefore leading to the decline of the phenomenon.
“In other words, piracy is sustained as long as the grievances that led to its emergence remain acceptable” Nigeria As in Somalia, developments taking place in Nigeria have created feelings of resentment and marginalization in certain segments of the population. However, piracy and maritime militancy continues to thrive in Nigeria because these grievances have pervaded deeper into a specific regional group and remain acceptable even in the face of violence and destruction. Moreover, the politicization of these grievances has reinforced them. In this section, I will first discuss the rise of grievances among the population residing in the Niger Delta. Then, I will examine why, in contrast with Somalia, piracy has been sustained in Nigeria. The story of Nigerian piracy begins with oil. Extraction of crude oil, which constitutes up to 90% of Nigeria’s exports, takes place almost exclusively in the Niger Delta (Ibaba, 2009).
Although crude oil extracts from this area provide much wealth, almost none of the profit reaches the hands of the population who reside in the region. Corruption at the elite level has kept oil wealth out of the hands of the ethnic groups and communities that live on the oil fields of the Niger Delta. This leads to feelings of alienation and resentment from these aggrieved groups against the government (Ibaba, 2009). Similar to Somalia, the failure of the Nigerian state to address issues of poverty and inequality led to grievances sustained by the population. Furthermore, widespread environmental destruction at the hands of the foreign oil companies has led to feelings of resentment against the international community. The extraction of oil by foreign companies leads to pollution and degradation of environmental conditions, which decreases domestic agricultural productivity, diminishes development, and reduces quality of life for inhabitants of the area (Ibaba, 2009). Due to the immense profits foreign companies make from the area and the limited steps they have taken to combat poverty and environmental degradation in return, communities in the Niger Delta are infuriated with the actions of the oil corporations and feel marginalized by the international community. In contrast with Somalia, however, these grievances have become politicized. Because of the politicization of grievances early on through peaceful protests, and later by the Movement for the Emancipation of the Niger Delta (MEND)3 group , these feelings of marginalization have become commonplace and sustainable within regional communities. According to Ibaba, the result of the alienation of the peoples of the Niger Delta against the state leads to the loss of federal government control over that region (Ibaba, 2009). The alienation from the state and marginalization of the people leads to lawlessness and the rise of militant groups in the area to provide authority that the state cannot.
Ergo, MEND actions—such as bunkering4, oil rig kidnapping, and traditional piracy taking place in the swamps—are accepted by the communities because the behavior speaks to the grievances sustained by the local populace and is part of a larger movement to seek political reparations for lost oil profits and environmental degradation. In essence, in contrast with Somalia, grievances sustained by Niger Delta communities against the state and the international community have led to the rise of piracy and militancy in the area, and the politicization of these grievances engrain piracy and violence as legitimate phenomena within the framework and political trajectory of the region. Conclusion This paper has highlighted an alternative explanation of piracy. I argued that the degree to which grievances are sustainable affects the growth of the phenomenon. As the case studies of Somalia and Nigeria have shown, a cultural and ideational dimension, grievances, must be added to evaluations of structural deficiencies within a state in order to fully explain why conflict and violent activities, such as piracy, arise or decline. Poverty, environmental degradation, and socioeconomic inequalities perpetuated by state and international practices, such as in the case of Somalia with defensive piracy and in the Niger Delta, generate feelings of marginalization and injustice. In turn, these grievances tend to motivate marginalized individuals in destructive ways, leading to more violence and hatred as revenge for perceived injustices. In regards to piracy, grievances provide motivation and legitimacy, therefore leading to the rise and spread of the phenomenon. This was especially the case in Nigeria with MEND’s rise and its piracy affiliation. Thus, grievances provide motivation for piracy that cannot be explained by mere monetary cost/benefit analysis. Furthermore, when state institutions do not change in strength, capacity, or effectiveness, and the
monetary cost/benefit ratio of piracy is stable, examining grievances as a cause of piracy helps to explain the growth or decline of the practice within a specific country. Because grievances can provide a justification and sense of legitimacy for piracy, the rate at which the phenomenon occurs depends on how sustainable a particular grievance is in the face of the violence, destruction of cultural and traditional values, and economic strife piracy can bring to a community. In both Somalia and Nigeria, grievances led to the rise of piracy as young, impoverished men sought violent retaliation against adverse forces. However, because these grievances differ in the degree to which they are sustained and accepted by Somalis and Nigerians, pirate attacks have declined in the former country and increased in the latter. In other words, piracy is sustained as long as the grievances that led to its emergence remain acceptable and poignant. The ultimate goal of this paper is not only to shed light on a previously underdeveloped facet of piracy, but also to call attention to an area that domestic and international policy makers might focus in order to definitively deal with piracy in Africa. These forces must work together to address and rectify grievances on land. International naval coalitions have worked to reduce piracy in Somalia in the short term; however, unless they deal with the structural, developmental, and ideational factors on land, their solution will only be temporary. Dealing with grievances in both Somalia and Nigeria will require the international community to be more thoughtful of their environmental practices, as carelessness on the part of foreign fishing corporations in Somalia and oil companies in Nigeria have led to environmental degradation, the loss of local livelihoods, and poverty. Furthermore, the international community should take steps to shield citizens from the violence and harm of conflicts between the state and militant groups. In this way, less Nigerians and Somalis will feel marginalized, desper-
ate, and willing to join a pirate organization.
End.notes Informal economies are those in which central states are unable to enforce or regulate their economies, enabling an informal, sometimes illicit, version to develop (Hastings and Phillips, 2015). 1
Horizontal inequalities are political, social, and economic inequalities between groups (Rees, 2011). 2
MEND is a regional militant organization known to be affiliated with pirates (Ibaba, 2009). 3
Bunkering is the hacking of oil pipelines and theft of crude oil by militants and crime groups (Montclos, 2012). 4
Wo r k s . c i t e d Boot, M. (2008, December 8). Pirates, Terrorism and Failed States. Hansen, S. (2011). Debunking the Piracy Myth. The RUSI Journal, 26-31. Hastings, J., &amp; Phillips, S. (2015). Maritime piracy business networks and institutions in Africa. African Affairs, 555-576.
74-106. Montclos, M. (2012). Maritime Piracy in Nigeria: Old Wine in New Bottles? Studies in Conflict &amp; Terrorism, 531-541. Murshed, S. (2004). Globalisation, Marginalisation and Conflict. Globalisation, Poverty and Conflict, 67-80. Nigeria - The World Factbook. (2015, November 4). Central Intelligence Agency. Pham, J. (2010). Putting Somali piracy in context. Journal of Contemporary African Studies CJCA J. of Contemporary African Stud., 325-341 Rees, A. (2011). Greed, Grievances, and Anarchy at Sea: Human Security and Somali Piracy (Doctoral dissertation). Massey University. Rudloff, B., &amp; Weber, A. (2011). Somalia and the Gulf of Aden. Stiftung Wissenschaft und Politik German Institute for International and Security Affairs. Sorenson, K. â&#x20AC;&#x2DC;State failure on the high seas: Reviewing the Somali piracyâ&#x20AC;&#x2122; (FOI Somali Papers, Report 3, Swedish Defence Research Agency, Stockholm, 2008).
Ibaba, I. (2009). Alienation and Militancy in the Niger Delta: Hostage Taking and the Dilemma of the Nigerian State. African Journal on Conflict Resolution Afr. J. Conflict Res. Joffe-Walt, C. (2009, April 30). Behind the Business Plan of Pirates Inc. National Public Radio. Keating, T. (2013). The Political Economy of Somali Piracy. SAIS Review, 185-191. Key Facts | Eunavfor. (2015). Menkhaus, K. (2006). Governance without Government in Somalia: Spoilers, State Building, and the Politics of Coping. International Security,
Russia in the Black Sea Peninsula:.Intervention, Annexation,.and.the.Role. of.International.Law. Constantine.Valettas
a b s t r a c t a b s t r a i t International law failed to prevent Russian intervention in Ukraine; this is clear. Yet international legal considerations, far from being irrelevant, profoundly shaped the nature of Russian violation. This paper considers the crisis against the backdrop of two international legal principles: the principle of non-intervention and the principle of self-determination, in order to determine whether international law shaped Russian behavior. It concludes that while instrumental calculation might explain Russia’s violation of the law, the way in which the violation was carried out reflects the influence of legal considerations and ‘acculturation’. From this perspective, Russian behavior also suggests that international law is the dominant discourse in international relations, and that states seeking to challenge the international legal order must do so from within the confines of that order.
Le droit international n’a pas réussi à prévenir l’intervention russe en Ukraine, ceci est évident. Pourtant, les considérations juridiques internationales, loin d’être sans importance, ont profondément façonné la nature de la violation russe. Cet article examine la crise dans le contexte de deux principes juridiques internationaux : le principe du non-intervention et le principe de l’autodétermination, afin de déterminer si le droit international affecte le comportement politique de la Russie. Cette dissertation conclut que même si le calcul instrumental pourrait bien expliquer la décision par la Russie de désobéir le droit international, la façon dont la violation a été réalisée reflète l’influence des considérations juridiques et de « l’acculturation ». Vue par cette perspective, le comportement russe suggère également que le droit international est le discours dominant dans les relations internationales, et que les états cherchant à contester l’ordre juridique international doit le faire à l’intérieur des limites de cet ordre.
Keywords:.Putin.Crimea.international.law. state.behaviour.acculturation.strategic. violation “Russia will always defend her interests using political, diplomatic and legal means.” -Vladimir Putin (2014) Russian intervention in Ukraine, the subsequent Crimean declaration of independence, and the annexation of the Crimean Peninsula to Russia present something of a hard case for students of international law. Yet to place emphasis exclusively on the fact that Russia did not comply with international law is to neglect the importance of the law in shaping its behaviour. Upon consideration, it becomes apparent that while instrumentalist theories of compliance best explain the simple fact of Russian non-compliance, Russian behaviour and legal argumentation reveal a profound acculturation to the principles of non-intervention and self-determination. When viewed through this lens, Russian behaviour also provides insight about the nature of international law – specifically, it provides support for the argument that international law is the dominant discourse in international relations, and that even states seeking to challenge the international legal order do so within the confines of legal discourse. In short, the way in which Russia went about ignoring international law reveals, paradoxically, that it still finds it necessary to play by the rules of the international legal game; and that, far from treating the rules as irrelevant, it is instead trying to shape them in its own favour. A Ukrainian Spring? Protests erupted in Kiev’s Maidan Square in February of 2014, following the decision of Ukrainian President Victor Yanukovich to renege on a longstanding decision to sign a trade agreement with the European
Union, opting instead to negotiate a new agreement with Russia. As protesters dug in at Maidan, the initially disorganized protests evolved into EuroMaidan, a large-scale mobilization of Ukrainian citizens in support of closer ties with the European Union. In the face of government inaction and increasingly violent police crackdowns, a contingent of protesters swapped banners for Molotov cocktails (BBC 2014). President Yanukovich, fearing for his life, slipped away to safety in the semi-autonomous Crimean republic, before finding a more permanent haven in Russia, where he was welcomed some days later. Declaring that he had left his position derelict, the Ukrainian Rada (parliament) invoked constitutional procedures, impeached Yanukovich, and established an interim government—although the constitutionality of the procedures remains subject to debate (BBC 2014). Meanwhile, in early March of 2014, Russian military personnel in unmarked green uniforms began to infiltrate the largely ethnic Russian Crimean Peninsula. The contingent began occupying key military installations and government buildings, including the Crimean parliament and the airport at Simferopol. The mysterious occupation went off without a hitch – not a single shot was fired (BBC 2014). It was in this context that an occupied Crimean parliament then announced that it would hold a referendum on independence, citing fears of repression by the new Ukrainian government and a deep concern over the looming draft bill regarding restrictions on the teaching of the Russian language (BBC 2014). The referendum was, according to the official account, immensely successful, and Crimea was annexed to the Russian Federation some days later. In order properly to assess the
influence of international law on Russian behaviour, one must first survey the approaches taken in studying the relationship between state behaviour and international law. Theories of International Law Compliance Theories of international law and state behaviour generally focus on the question of compliance – why and how states comply with international law. While this paper proposes to examine both compliance and effectiveness – the more general effect of law on behaviour –compliance theories offer much insight into the latter relationship. Compliance theories may be classed into three categories: instrumentalist, normative, and organizational. Each of these categories can be treated as a framework, providing a set of assumptions about the nature of international law and the international system. Within each of these categories there exist a number of more nuanced approaches, predicated on the central assumptions of the framework but approaching them from different perspectives. Instrumentalist Theories The fundamental assumptions of the instrumentalist framework are that states – which are generally taken to be the central actors in the international system – are self-interested and that they exist in an anarchic system. The central argument of instrumentalist theories follows from these premises: states comply with international law because they perceive it to be in their interests to do so, not because it is the law. Generally, states are considered rational actors, meaning that they act in accordance with their preferences by calculating the net benefits of any particular course of action before proceeding. Because preferences are taken to be exogenous and fixed, each potential move generates a set of expected payoffs, of which the best option is chosen. Enforcement theory combines a rational-choice approach with a
strong emphasis on the state as an autonomous actor with “material power capabilities that […] shape the structure and substance of international law” (Steinberg 2013, 149). Law is understood to be an epiphenomenon of state power – the product of a strategic dynamic, and states comply only because they fear retaliation or the loss of joint gains from coordination or cooperation (Goldsmith and Posner 2005, 26-35; 100). Reputational theory shares many of the assumptions of enforcement theory, by applying a similar rational-choice framework. In this analysis, states pledge their reputation as a form of bond, which provides a signal in strategic games, by indicating the rate at which a prospective partner discounts future gains. Reputation thus acts like an interest rate, rising and falling to signal changing risk. States comply at least in part because of reputational considerations – in other words, to keep their ‘interest rates’ low (Guzman 2008, 40). Less prominent theories in the instrumental framework include Managerial and Liberal-Domestic theories. Managerial theory is characterized by the assumption that states have a general propensity to comply with international law because compliance is efficient,1 treaties are consent-based and therefore serve the interests of participating states, and there exists a general norm of compliance. (Chayes and Chayes 1993, 178-187; Guzman 2002, 1823-87). Finally, the Liberal-Domestic theory of compliance is characterized by its emphasis on domestic interest groups as the key explanatory variable in describing compliance decisions. Such decisions are treated as the product of a two-level game, in which state preferences are an aggregation of domestic preferences and strategic considerations (Putnam 1998). Preferences are also conditioned by the regime’s desire to remain in power (Dai 2005, 369).
Normative Theories Normative theories accept that behaviour can be governed, at least in part, by a logic of appropriateness rather than exclusively by a logic of consequence. As such, actors may make decisions on the basis of normative judgments about the inherent goodness of a particular rule, not only on the basis of a rational cost-benefit analysis. Moreover, goal-driven behaviour can be conditioned by social context (Hurd 2007, 76). Normative theories are undergirded by a more optimistic view about the possibility of mitigating anarchy. They are also broadly constructivist in inspiration, tending to emphasize human cognition and social-psychological processes. The first theory in the normative framework is legitimacy theory. Legitimacy may be defined in abstract terms as a right to govern (Bodansky 2013, 324). Thomas Franck (1988, 712) concerns himself with the characteristics of rules that lead them to exert a normative ‘compliance pull’ on actors, arguing that rules are legitimate when there is “a perception on the part of those to whom it is addressed that it has come into being with the right process.”2 To Ian Hurd (2007, 36), on the other hand, legitimacy is a more subjective matter and is contingent upon the judgment of a given actor. Belief in the legitimacy of a rule changes interests and structures decision situations by changing “an actor’s perception of both its interests and the payoffs of the available options (Hurd 2007, 45). When widespread, this process creates a “valid,” or legitimate system which exhibits “a structure of constraints and incentives that [appear] to all actors in the system as an objective reality” (Hurd 2007, 46). Socialization theories, on the other hand, deal with the internalization or acceptance of norms. Harold Koh (1998, 626) conceives of internalization as the process by which international legal rules become incorporated into domestic systems, prompted by a transnational process that unites norm
entrepreneurs in a transnational epistemic community whose members then “bring international law home.” Risse and Sikkink (1999, 17), on the other hand, adopt a more strictly social approach and define internalization as the process by which norms come to be “taken for granted.” Jeffrey Checkel (2001, 553) examines the “role of argumentative persuasion and social learning” in relation to compliance, employing a largely social-psychological approach that nevertheless takes account of the influence of historical and institutional context. Finally, Goodman and Jinks propose as a mechanism of internalization called acculturation, “the general process of adopting the beliefs and behavioural patterns of the surrounding culture,” driven by cognitive and social pressures rather than by an acceptance of a rule’s legitimacy (Goodman and Jinks 2004, 638-642; 642-643). Legal Issues and Compliance with Rules of International Law Two central legal issues are implicated by the events in Crimea: the Principle of Non-Intervention – which includes Prohibition of the Use of Force (Encyclopedia of Public International Law (“EPIL”:Principle of Non-Intervention) – and the Right of Self-Determination. The Principle of Non-Intervention is a foundational principle of contemporary international law. It receives explicit mention in article 2.7 of the Charter of the United Nations (UN), and is generally held to be implicit in Article 2(1), which bases membership in the organization on “the sovereign equality of members” (UN 1945). Essentially, it holds that states should not intervene in the external or internal affairs of another state without consent from that state. The principle is also implied by the Prohibition of the Use of Force in Article 2(4) of the Charter of the United Nations (UN 1945), which makes it incumbent upon all members to “refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state.” It is significant to note that the protection of nationals abroad is tentatively connected to self-defense arguments, and is of ambiguous legal legitimacy (EPIL: Humanitarian Intervention). Naturally, the most significant issues for arrival at a dispositive legal judgment are what constitutes, in practice, intervention in the affairs of another state. The answer to this question is often the subject of much debate. Traditionally, only two exceptions to the prohibition of the use of force have been acknowledged: authorization by the UN Security Council and self defense in the event of imminent or actual armed attack (UN 1945: Article 51). An emergent third exception is the Responsibility to Protect, which allows intervention by a third party in the event of atrocities, genocide, or other similarly grievous crimes. Though it still requires Security Council authorization, it is remarkable because it is predicated on the notion that “sovereignty no longer exclusively protects States from foreign interference; it is a charge of responsibility that holds States accountable for the welfare of their people” (UN Office of the Special Advisor on Genocide 2015). Acceptance of this broader principle has given rise to another, less widely accepted principle: humanitarian intervention – “the threat or use of armed force against another State that is motivated by humanitarian considerations” (EPIL:Humanitarian Intervention). A final potential justification for the use of force is “intervention by invitation,” which involves a formal request for intervention from the government of one sovereign state to another (EPIL:Intervention by Invitation). As a general rule, this form of intervention is permissible, although it requires “demonstrable consent by the highest available government authority in order to identify attempts of abuse”. The principle has been applied, with tenuous justification, by the United States in Grenada and Panama (EPIL:Inter-
vention by Invitation). The right to self-determination is also relevant to the discussion here, because it shaped the events of March 2014. The principle is also contained in the Charter, this time in Article 1(2) (UN 1945), which establishes as one of the purposes of the United Nations the preservation of “…friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.” In this case, however, its provisions are rather vague and it is debatable whether it creates a set of binding rights and obligations. The International Court of Justice in its Advisory Opinion, On the accordance with international law of the Unilateral Declaration in Respect of Kosovo (ICJ 2010: paragraph 79), found no general prohibition on declarations of independence in customary law. Yet in order to be applicable, the right of self-determination requires that we establish whether the group in question constitutes a people, and how that people’s right is to be exercised (EPIL:Self-Determination). It is also important to note that a grievous violation of the right to self-determination can in theory justify humanitarian intervention, or at least trigger the responsibility to protect (UN Office 2015). To what extent, then, did Russia comply with international law? The answer in the case of non-intervention and the threat or use of force is quite clearly “almost certainly not at all.” Russian troops were present in Crimea, despite Putin’s dissimulations, as early as February of 2014 in clear violation of Ukrainian sovereignty (BBC 2014). And even if by some miracle of legal argumentation their actions do not count as a use of force in the narrowest sense – a doubtful proposition to begin with – amassing troops on the Ukrainian border, occupying key installations in an entire sub-region of Ukraine, and threatening full-scale intervention in the case of a Ukrainian response must certainly count as a threat of force. Russian actions were also certainly in violation of a 1997 Status
of Forces agreement signed between Russia and Ukraine, which pledged to keep Russian forces in the port of Sevastopol (O’Connell 2014). While it is generally agreed that Russia did not comply with the principle of non-intervention, it is instructive to consider what shape non-compliance took, because it reflects an acknowledgment of the principles of non-intervention and self-determination. For one, the pains taken to keep the military operation from being attributed to Russia – at least at the outset – reflect an appreciation of the fact that, as Nico Krisch has put it, “Russia does care about its international audience (at least a bit), and knowing that international law matters for that audience it has chosen a less open form of invasion (Krisch 2014)”. Moreover, Russia has since 2008, and perhaps earlier, undertaken to distribute passports to members of ethnic Russian minorities abroad (Green 2014). Notably, the process was accelerated after the deposition of Yanukovich; in the last two weeks of February, Russia issued approximately 143,000 passports to Russian-speaking Ukrainians on the peninsula (Green 2014, 8). The goal appears to have been to set the justificatory groundwork for later claims that intervention was in protection of Russian citizens abroad; in particular, to provide a counterargument that force was used as a form of self-defense – as a protection of Russian nationals in the near abroad. Finally, Russia’s role in creating the conditions for an imminent Crimean referendum reflects an appreciation of the legal principle of self-determination. While details are sketchy, the occupation of the Crimean parliament, and the fact that a referendum was held a mere two weeks after Russian occupation began (BBC 2014), suggests little time for public deliberation. Because of the heavy military presence, it is also possible that many voters who would otherwise have voted “no” might have elected instead to remain silent. Still, the very fact that
a referendum was held reflects an attempt to frame the events in terms of a legal act of self-determination.
“Russian behaviour suggests that Russia has been acculturated to participation in the international legal order, but that it has not actually internalized the legal principles of that order.” The Russian legal argument, articulated in rough form in Putin’s Kremlin Address of March 18th, helps to place Russian actions in context (2014). In addition to emphasizing the perceived (and to some extent genuine) historical affinity between Crimea and Russia, Putin stressed that the Crimean referendum was an act of self-determination, “in full compliance with democratic procedures and international norms (Putin 2014). Russia had merely helped to “create the conditions so that the residents of Crimea for the first time in history were able to peacefully express their free will regarding their own future” (Putin 2014). At the same time, however, Putin vigorously denied that Russian forces ever entered Crimea (Putin 2014). The secretive nature of the intervention thus allowed Putin to claim that Russian actions did not constitute aggression. How, after all, could there occur “an intervention without a single shot being fired and with no human casualties?” (Putin 2014). Later, when it was admitted that Russian troops had in fact been involved in the Crimean occupation, it was argued that they were there by formal invitation – first from the Crimean government, and then from Victor Yanukovich himself (Jorritsma 2014). Specifically, Russia held that because procedures for establishing an interim government after his escape did not satisfy the provisions of the Ukrainian constitution, Yanukovich
was still technically the Ukrainian head of state, and the Ukrainian government had been dissolved by “revolution” (Jorritsma 2014). The absurdity of the latter claim notwithstanding, even if Yanukovich had remained head of state, it is generally agreed that request for intervention must come from the highest levels of government, not from a head of state alone (EPIL:Intervention by Invitation). Finally, Putin made extensive use of the Kosovo example, throwing back in the face of the Western audience a ‘precedent’ that they ostensibly “created with their own hands in a very similar situation” (Putin 2014). None of this is to say that the Russian legal argument holds water, or that the case of Kosovo and Crimea are even remotely comparable. It is merely to point out that the Russian legal argument has sought to exploit areas of uncertainty or flux in international law by altering state practice. Specifically, it has sought to highlight the tension between the principles of non-intervention and self-determination (Borgen 2014; Krisch 2014). Explaining Russian Behaviour International law failed to prevent Russian intervention in Ukraine; this is clear. Yet international legal considerations, far from being irrelevant, profoundly shaped the nature of Russian violation. It is clear, however, that beyond the perspective of a legal-rhetorical justification, Russian state behavior was shaped by international law—albeit, indirectly. The significance of the law is thus demonstrated by the fact that Russia sought to portray itself as if it were adhering to international law through its actions. In a cynical way, it might even have aimed to obey what it understood to be letter of the law, if not the spirit. It is instructive to consider, first of all, some simple counterfactual scenarios: absent the principle of non-intervention and the prohibition of the use of force, it is quite likely that Russian intervention would have been considerably more open – in the image of
Hitler’s reoccupation of the Rhineland, perhaps. Absent the establishment of the principle of self-determination, moreover, it seems highly unlikely that those interested in accession to the Russian Federation would have gone to the trouble of holding a plebiscite. Rather, an outright annexation would most likely have occurred. It is therefore important to distinguish between a particular action, and the nature of that action. The distinction reveals that international legal considerations had some influence – but by what mechanism was the influence brought to bear? The enforcement theory of international law compliance sheds the best light on what might be called the ‘simple fact’ of Russia’s non-compliance: The Ukrainian intervention, and Crimea’s subsequent annexation, when viewed as a single strategic move, reflect the machinations of realpolitik. Russia feared for the security of its warm-water port under Ukraine’s new pro-European and explicitly anti-Russian government, and had, in any case, been anxious about NATO’s expansion in the region (BBC 2014). By taking Crimea, it could at once assert itself as a great power through a strategic coup, and would win domestic prestige by bringing a region of significant historical and strategic value into the Russian fold. At the same time, according to this narrative, it could declare itself the protector of Russian minorities elsewhere in the region, and reap similar advantages in domestic prestige and international influence. Russia therefore calculated that the strategic and domestic political advantage to be gained by violating the prohibition on the use of force outweighed the disadvantage, in terms of sanctions or international opprobrium – perhaps acting even as a form of reputational sanction – which would follow violation. These sorts of analytical predilections have led Julian Ku (2014), among others, to argue that “in academic terms, the failure of the Charter is evidence for both realists (who think international law never matters), but
also for rational choice theorists like Posner, as to how international law really works.” Ku and others certainly have a point when they argue that what matters, at the end of the day, is compliance with the central norm of non-intervention. But from an analytical perspective, his conclusions tell the right answer to the wrong question. Far more interesting – and perhaps more analytically useful – is to consider the more general causal relationship in this case between law and behaviour. And in respect of this relationship, it can be said with confidence that international law did shape the behaviour of the Russian Federation. This is evinced by Russia’s strenuous attempts to appear and act as if its behaviour was compliant, through its manipulation of the referendum and the adoption of a policy of passportisation. If instrumentalist enforcement theory sheds the best light on ‘the sources of Russian conduct,’ then normative theories are best suited to shed light on the nature of that conduct. In particular, the mechanism of acculturation proposed by Goodman and Jinks (2004) seems applicable. The reader will recall that acculturation is defined as “the general process of adopting the beliefs and behavioural patterns of the surrounding culture,” driven by cognitive and social pressures rather than by an acceptance of a rule’s legitimacy (Goodman and Jinks 2004, 638-643). Specifically, Russian behaviour suggests that Russia has been acculturated to participation in the international legal order, but that it has not actually internalized the legal principles of that order. In this sense, it is subject to external social pressures to comply with international law. Goodman and Jinks, in their discussion of one particular mechanism of acculturation, refer to “the imposition of social-psychological costs through shaming or shunning” as a consideration that prompts changed behaviour, and indeed the notion of international opprobrium falls comfortably into this category (Goodman and Jinks 2004, 641).
By the same token, because “actors are engaged in the generalized pursuit of social legitimacy” (Goodman and Jinks 2004, 645), presumably from the international community, they will alter their behaviour in order to argue plausibly that they complied with a norm, regardless of any belief in the content of the rule itself (Goodman and Jinks 2004, 643). This describes Russian behaviour almost exactly. Russia, in trying to articulate a legitimate claim to the annexation of Crimean territory, not only argued that its behaviour— and the behaviour of the Crimean parliament—was in full compliance with international law. It ‘went through the motions’ as well. Another indication that Russia has been acculturated to the international legal order –at least insofar as the principles of non-intervention and the right of self-determination are concerned – is that this is not the first time it has modified its actions in this way. It has employed similar strategies in South Ossetia, where it also distributed passports to ethnic Russians (Green 2014, 4), and sought to justify its intervention in terms of international law (Borgen 2009). Interestingly enough, the Crimean self-determination argument also represents quite the turnaround from Russia’s initially vigorous criticism of Kosovo’s declaration of independence. In 2008, Sergei Lavrov, the Russian Foreign Minister, stated that Kosovar secession would constitute a “subversion of all the foundations of international law” (Borgen 2009, 11). In both cases, this suggests that Russia acknowledges the importance of international law as an instrument of legitimacy, and has been acculturated to it. Instead of rejecting these principles, then, Russia is trying to use them to its advantage, and perhaps even to change them from within. As Roy Allison has put it, “Russian claims are enmeshed with the political and military aspects of Moscow’s strategy over Ukraine” (Allison 2014, 1259). But they are still legal claims. And, as we
have seen, they shape behavior as well. William Burke-White (2014, 67) has observed that Russia is in fact trying to change the balance of interpretation that has been traditionally maintained between the principles of non-intervention and of self-determination in favour of an interpretation that would allow it to exercise greater influence in the region. Specifically, it advocates “a broad, rapid, and easy to trigger right of self-determination” (Burke-White 2014, 69). The exploitation of legal ambiguities has become possible, BurkeWhite argues, because of the decline of American hegemony and the concomitant rise of regional centers of power. As a result, certain states, like China in the South China Sea and Russia in the Caucasus and the near-abroad, attempt to control legal interpretation and to articulate regionally applicable, issue-specific legal norms; the tendency is therefore toward the creation of a polycentric legal order (Burke-White 2014, 66). This also explains Putin’s gratitude to other regional powers for their detachment: We are grateful to all those who understood our actions in Crimea; we are grateful to the people of China, whose leaders have always considered the situation in Ukraine and Crimea taking into account the full historical and political context, and greatly appreciate India’s reserve and objectivity (Putin 2014). If indeed Burke-White’s assessment is accurate, then it appears in the final analysis that Russia is enacting a kind of instrumentalist logic within the discourse of the international law to which it has been acculturated. In short, international law shapes Russian behaviour at the same time that Russia seeks, through its behaviour, to re-shape international law. Conclusion: Rules, Behaviour, and the Nature of International Law
Russian behaviour is also interesting for what it tells us about the nature of international law in general. It suggests that critical legal theorists have a point when they suggest, as does Shirley Scott (1998, 37), that “the relationship between international law and foreign policy is more complex and nuanced than can be theorised in compliance terms alone.” Specifically, it suggests that the “rule-book image of international law,” which assumes the possibility of “a simple dichotomy of behaviour between legal and illegal, of rules pre-dating policy, of rules as shared by all parties involved in a dispute, and of the possibility of [their] objective application” needs to be modified (Scott 1998, 38). This is apparent when one considers that the fact of Russian non-compliance can be explained quite convincingly by enforcement theory, but that to do so is to neglect a whole host of law’s causal effects. In order to fully comprehend the causal effect of international law, one must establish what precisely it is. Shirley Scott’s (1998, 44) solution – to theorise law as a form of ideology – is a useful first step. In this analysis, actors uphold the ideology of international law in their relations with each other, without necessarily subscribing to its precepts (Scott 1998, 44). But more is at stake here than ideological browbeating; the behaviour element supports the contention of other critical legal theorists, like Koskenniemi (2004), who assert that the legal idiom is a field of contestation, manipulable through both rhetoric and behaviour. Yet at the same time, by allowing political actors to frame their particularistic interests in universalistic terms, the legal idiom paradoxically creates and sustains the world as a legal community. It is therefore a source of legitimacy “simultaneously instrumental and resistant to the pursuit of power” (Krisch 2005, 369), a technique for the exercise of power that imposes behavioural constraints on the powerful as well as on the weak (Krisch 2005, 377). As a
result, even challenges to the existing legal order are articulated and acted out from within the discursive structure of international law, not from without. Contrary to the claims of neo-conservative pundits, then, the nature of Russian intervention in the Crimean Peninsula reflects the profound influence of the international legal principles of non-intervention and self-determination. While enforcement theory might explain, in general terms, the fact of Russian non-compliance, a normative theory of socialization – specifically, Goodman and Jink’s model of acculturation – best explains the nature of Russian behaviour as a whole. Beyond this, it signals to us the importance of international law as a discourse of power which can both shape and be shaped by state behaviour.
End.notes In the sense that compliance does not force a recalculation of the costs and benefits of a decision, thus “saving” transaction costs. 1
The concept of right process includes the criteria of determinacy, the clarity of a rule’s prescriptions and proscriptions; symbolic validation, authority bestowed through ritual or process; coherence, connection with some rational principle of broader application; and adherence to an accepted normative hierarchy (Franck 1988, 712). 2
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The.Israeli-Palestinian Conflict and Anti-Semitism in.France: a Link and Its Implications Louise.Guerner a b s t r a c t a b s t r a i t Evaluating the repercussions of conflating criticism of Israeli politics and Anti-Semitism as well as the historic salience of the conflict for French inter-religious tensions, we find that a domestic strategy to address anti-Semitism in France must tackle all forms of racism and unequal treatment, but cannot be fully realized without a change in Israeli politics towards Palestine and in the tactics of Jewish advocacy groups. By taking a strong stance in favor of Israeli-Palestinian peace in such a way that emphasizes the respect of both religious tolerance and human rights, the French can tackle violence and racism domestically, and act in the interest of world Jewry while aiding towards a more permanent resolution of Israeli-Palestinian relations on the world stage.
En évaluant les répercussions de l’amalgame entre les critiques de la politique israélienne et l’antisémitisme en plus de la saillance historique du conflit interreligieux français, nous découvrons qu’une stratégie domestique afin de lutter contre l’antisémitisme en France se doit aussi de lutter contre toutes formes de racismes et d’inégalités. Néanmoins, ceci ne peut être réalisé sans un changement de politique israélienne envers la Palestine ainsi que dans les tactiques des groupes juifs à intérêt politique. En adoptant une position rigoureuse qui non seulement met en valeur la paix entre l’Israël et la Palestine, mais qui souligne aussi le respect et la tolérance envers les deux religions et les droits de l’homme, les français pourraient davantage faire face à la violence et au racisme dans le pays afin d’agir dans l’intérêt des juifs du monde entier, tout en essayant de trouver une solution plus permanente envers les relations israélo-palestiniennes sur la scène mondiale.
Keywords: New.Anti.Semitism Israel Palestine civil.society,religious co-existence
Anti-Semitism is alive and well in France: just this past week Jean-Marie Le Pen, the ex-leader of the French far right Front National party has once again stated that the Holocaust was a “detail” of history in the far right weekly Rivarol. Rabbis recommend for Jews to take off their yarmulkes when walking in certain Parisian neighborhoods, and Jewish graves have several times been desecrated in various parts of France. But anti-Semitism today is different from that of the past, and rhetoric on all sides often associates a given stance regarding the Israeli-Palestinian conflict with a targeted opinion of all Israelis and Jews alike. The Israeli-Palestinian conflict and Israeli politics in general fuel tensions in the French population, and addressing anti-Semitism in France requires a domestic strategy to honestly tackle all forms of racism and unequal treatment. Such a strategy, however, cannot be fully realized without a change in Israeli politics towards Palestine, and in the tactics of Jewish advocacy groups. This paper argues that acting in the interest of world Jewry today stands in opposition to the status-quo pursuit of Israeli state goals that are promoted as representative of the Jewish nation as a whole. We will first explore the origins and manifestations of the post Second World War anti-Semitism in France and the correlation with events in the Middle East and Israel. We will then define the concept of “new anti-Semitism,” address the repercussions of equating opposition to Israeli politics to Anti-Semitism, and evaluate the solutions that would best ensure the interest of French religious coexistence, Middle Eastern peace and world Jewry. France, Jews and Anti-Semitism The issue of recent anti-Semitism in France, and French attitudes towards Israeli politics and the Israeli
occupation stirs passions on all sides of the argument, making it difficult to establish any objectives truths or understandings. Opinions, activism, generalizations, and strong skepticism of opposing viewpoints often drive academia on the topic. The contentions begin when attempting to determine whether this is a distinct, recent phenomenon or simply a continued manifestation of an eternal hatred, whether anti-Semitism is truly on the rise, what causes the attitude, and even what can be measured as a manifestation of anti-Semitism. There are different accounts to describe the post-World War Two landscape of societal tensions in France, and one author whose works have been more widely accepted as academic and relatively neutral are those of the French sociologist Michel Wieviorka, author of Hatred of Jews in Present Day France. Wieviorka explains that in the years following the war, anti-Semitism could no longer be held as an opinion, and as the oppressive political instauration of anti-Semitism had disappeared Jews felt safer in France. This new French model worked well during the 1960s and ‘70s: the creation of the state of Israel in 1948 was not received negatively in France, and the image of the Jewish state remained positive even throughout the 1967 Six Day War and the 1973 Yom Kippur War. The Jewish population at this time remained relatively small, and it fit in the “Republican” model very dear to laic France as Jews blended in as typical citizens in society, practicing their religion mostly in the private sphere. The decolonization of North Africa ushered in a new dynamic, and the demographics were significantly altered as many Jews as well as Arab Muslims arrived from the former French colonies. As historian Maud Mandel argues in
her book Muslims and Jews in France: History of a Conflict, many of the immigrant workers who had been brought to France from the colonies chose to emigrate permanently and to reunite their families there, and the Arab population also grew from new immigrant families fleeing the domestic tensions, most significantly in Algeria. But the Algerian Muslims who settled in France at the same time as the Algerian Jews were not given French citizenship at first, and although both Jews and Muslims settled in the same neighborhoods, a rift began to form as a consequence of their unequal education levels (Jews often having received a more extensive education in the colonies). Because of the fact that unlike Jews, Muslims were not directly awarded French citizenship and Jews were better supported in general by the French government, they were consequently better able to integrate French society. The North African immigration also caused a shift within the attitude of the French Jewish community as North African Jews were accustomed to life as a separate community in the colonies, and the Jewish population became more visible and distinct in French cities as members built their own schools and synagogues and created cultural institutions, leading Jewishness to exist as a particular identity in the French public space The link to Israel-Palestine became salient in the 1980s. Jews grew more outspoken of an attachment to Israel, which occurred simultaneously with a degradation of the image of Israel in France around the time of the 1982 Lebanon war. In her distinct pro-Israeli stance, Maud Mandel argues that the efforts to promote pluriculturalism and to create coalitions between Jewish and Muslim youths in France were always unstable –Jews could separate the conflict between Israel and the Palestinians from the struggle for religious tolerance in France, whereas the Muslim groups could not. As tensions rose for the Jewish community, Jews were put in a difficult position as the French organization created to defend
their interests and fight anti-Semitism, the Conseil Représentatif des Institutions Juives en France (Representative Council on Jewish Institutions in France, Crif) demanded of them an unconditional support of the Israeli government and advanced that combatting anti-Semitism and defending Israel were one and the same fight. At the same time, anti-Semitism became more overt and was treated as less shocking by the French population, with specific targeting of Jewish shops and institutions by disenfranchised “banlieues” youth, and in other sectors of French society which support the far right Front National party as well individuals from the far left. The Israel lobby in France devised more formal strategies and increasingly linked criticism of Israel to anti-Semitism, while simultaneously a growing solidarity with the Palestinian people developed not only amongst Arab and Muslim populations but in the general landscape of French society, for instance with organized protests and activism promoted through art exhibitions. The evaluation of current anti-Semitism is as contentious as its development. While some French political scientists like Pascal Boniface argue that anti-Semitism is not on the rise but that this perceived increase is only a result of media portrayal, many data surveys do report an increase in attacks against Jews, Jewish institutions and symbols of Judaism. The data collected by the French Ministry of the Interior and the Ministry of Justice is often judged as non-representative of the actual phenomenon since the numbers are based on the complaints filed, and many people who are victims of an anti-Semitic attack do not wish to file a complaint or are deterred by the complexities of the procedure. To remedy this lack of information, the French National Commission consulting on Human Rights (CNDH) publishes each year an annual survey on racism, anti-Semitism and xenophobia in France which goes beyond penal infractions and also includes opinion polls. They
conclude that the year 2014 saw an increase superior to 100% of anti-Semitic acts from the previous year, with a total sum of 851 facts recorded by the police compared to 423 in 2013. 2014 also saw an increase in the revival of old stereotypes against Jews, with a greater approval of statements like “Jews have too much power” or “Jews have a special attachment to money.” Using survey data, we may also conclude a factual correlation between manifestations of anti-Semitism in France and events in the Middle East. The number of recorded acts increased from 82 for the year 1999 to 744 for the year 2000 corresponding to the second intifada, from a total of 397 in 2008 to 832 recorded in 2009 corresponding with the December-January operation Cast Lead in the Gaza strip, and most recently with the Operation Protective Edge of July 2014 the number of acts and threats measured increased from 55 in June 2014 to 208 in July 2014. The impact of these incidents is notable: the climate in the French Jewish community grows increasingly fearful, and combined with economic pessimism, has led French Jews to emigrate to Israel in historically unprecedented numbers. France was the largest source of Jews moving to Israel last year according to the Jewish Agency for Israel which coordinates immigration to Israel, predicting that up to 15,000 would emigrate this year. Israeli Prime Minister Benjamin Netanyahu has publicly called for French Jews to come to Israel following the January Paris attacks, and insists that Jews in France will only face increased discrimination and should return to their Israeli homeland. As much as French politicians attempt to counter this by insisting that French Jews are French foremost and essential to the makeup of French society, some members of the Jewish community in France feel an Islamic threat to their security and an indifference of the French authorities, and although a significant part still do not consider leaving the country as a solution, the immigration of French Jews is expect-
ed to keep on increasing in the future. Although France is often portrayed by international media as the European country where anti-Semitism and Islamophobia are most present and alarming, this seems to be a detrimental exaggeration as polls conducted by the PEW for example indicate that Jews are viewed favorably by 89% of the French population (the greatest percentage for all Western European states), while this number is at 82% for Germany, 65% for Italy and even down to 47% for Greece. Muslims are viewed favorably by 72% of the French population (again, the highest value for Western Europe), and this number decreases to 58% in Germany and 49% in Spain for instance. This impression of racism in France is largely due to media portrayal, and the fact that the particular link between anti-Semitism and Islamic radicalism is most salient in France as it is the state which houses both the largest Muslim and Jewish communities of Western Europe. The French response to anti-Semitism is largely viewed by Jews, Israelis or commentators sympathetic to the Israeli cause as insufficient, and is sometimes even considered cowardly in its reticence to address a threat perceived to originate from Islam, of denial toward the phenomenon, as exposing a clear bias in favor of Palestine and even as an additional manifestation of eternal abandonment of and discrimination against the Jewish community in France. The New Anti-Semitism New anti-Semitism is the concept that a new form of anti-Semitism has developed in the late 20th and 21st century emanating from the far right but most importantly from the far-left radical Islam. Proponents in France argue that although traditional Christian hatred of Jews has largely dissipated after the second world war, there is now a growing acceptance of racist bias against Jews coming from both mainstream French and most significantly from the French Muslim population, all of which use anti-Zionism and the criticism of Israel as a hidden face for
anti-Semitism (which is commonly defined as hostility toward or discrimination against Jews as a religious, ethnic, or racial group). In an essay published in Those Who Forget the Past, the collection of works on the new Anti-Semitism, British journalist Barbara Amiel describes that this rise in anti-Semitism and America’s failed efforts to bring democracy to the Middle East are all caused by the rise of Islamism, and she states that post-9/11 people could no longer ignore that “the problem was not Israel’s intransigence, nor even the conflict that comes from Israel’s existence: the problem is Islamism.” Gabriel Schoenfold argues that we should “for the moment bracket off the Muslim world” as “the evidence of anti-Jewish hatred in that immense pocket of humanity has been copiously documented and is simply too overwhelming to warrant extended discussion.” In his analysis of the European reaction to an Israeli incursion in the West Bank he states that European disapproval of an evidently defensive Israeli decision on the part of Shimon Peres was to be expected given Europe’s support of Palestinian statehood, but that the reaction was even more violent than that as seen in the documented attacks on “Jewish symbols, Jewish institutions and Jews themselves.” Thus the politics of the EU regarding the Israeli-Palestinian conflict, and a political reaction to an Israeli incursion in the occupied territories are confounded with an attack on all Jewish people. These diplomatic reactions towards a state’s policies are put in the same category as independent anti-Semitic acts led by a handful of individuals chanting “Death to the Jews” at pro-Palestinian protests for instance, with these individual acts chosen to represent an anti-Semitic nature of solidarity towards Palestine, the Muslim population, and a European neglect of the security of Jews all at the same time. According to Melanie Philipps there is “no doubt” that “anti-Zionism is now being used to cloak a terrifying nexus between genocidal Arab and Islamist hatred of the Jews and deep-seated Eu-
ropean prejudices,” and that this new anti-Semitism is “nothing to do with the settlements or the West Bank”, but that the language being used “exposes as a cruel delusion the common belief that the Middle East crisis would be solved by the creation of a Palestinian state.” The arguments used by proponents sometimes single out the economic inequalities and integration challenges of French Muslims as specific political or social conditions causing an animosity from the seemingly monolithic Muslim Arab community towards Jews, but most often arguments generalize phenomena linked to the Muslim community as characteristic of Islam only. This perception creates a sense of victimhood and abandonment within the French Jewish community. A Dangerous Conflation There exist links between the Israeli-Palestinian conflict a contestation of the right of the Jewish state to exist, and anti-Semitic acts which directly target Jews solely for their identity as members of a Jewish nation. But the talk of a “new anti-Semitism” could be dangerous as those who argue that it is evidently on the rise are conflating two phenomena which are connected while remaining critically separate. Most French associations which promote Palestinian rights and self-determination and groups which criticize Israeli politics explicitly condemn anti-Semitism as racism and contrary to their principles of human rights and freedom. Nevertheless, some individuals linked to their advocacy tarnish manifestations and express views which reflect clear anti-Semitism. Certain members of the Jewish community, Israeli politicians, French and European politicians, and many French Muslims and Christians alike can all be blamed for the detrimental blending of anti-Semitism, anti-Zionism and criticism of Israeli policies and politicians as one and the same cause. Wherever this conflation exists, it leads one individual to look at the next with a sense of “otherness” or opposition based on their
religion or their political stance and creates an opposition which is not intrinsic but is socially learned. This phenomenon is deplored by many European Jews who face direct criticism when their Jewishness is equated to support for Sharon or Netanyahu’s policies. The peculiarity of the Zionism-Israel-anti-Semitism mix-up is that it is promoted by many Israeli politicians and Jewish intellectuals. Finkelstein argues that when Netanyahu states that he represents all of the Jewish Nation before international public appearances, or when making strong anti-Arab comments, one cannot wonder that animosity and blame regarding Israeli acts be turned on the Jewish population as a whole. In the definition of the new anti-Semitism itself, although many authors quickly mention that one can be critical of Israel without necessarily being anti-Semitic, they come to define almost every instance of criticism as a disguised form of anti-Semitism. Several international onlookers cite this conflation as a tactic used by Israel to defend its policies and act in impunity. The conflation often emanates from the Israeli government and certain pro-Israeli activists, and spreads in Jewish communities worldwide, as in the case of the Crif’s unconditional support towards the state of Israel and its policies. Peter Beaumont argues that “while the phenomenon of anti-Jewish sentiment and attacks in some quarters of the Islamic community in Europe is to be deplored, so too must be the effort to co-opt it as an alibi for Israel’s behavior and to use it to silence opposition to its policies.” French Anti-Semitism, the Israeli-Palestinian conflict and the role of French Politics Both underestimation and overestimation of anti-Semitism are “social productions” which have detrimental consequences for all actors involved in the debate. Far from an attempt to minimize persecutions against Jews in France, it is important to note that the general stance in French politics is still one of very strong solidarity
with the Jewish people which is expressed also as a reticence to criticize Israeli politics. Although the French population is divided in its stance on the Israeli-Palestinian conflict, French politicians and intellectuals often steer clear of criticizing Israel due to the risk of being portrayed as anti-Semitic. Gideon Levy, the prominent Israeli human rights journalist notes the silencing of opinions in France as, for instance, a segment of his interview for a French broadcast in which he stated at times being ashamed of being an Israeli was cut out due to the channel’s fear of reprimand. Attitudes are more positive towards the Jewish community than towards the Muslim one, and anti-Semitic incidents are often treated with more concern than manifestations of Islamophobia. As Michel Wieviorka concludes in his sociological analysis of Anti-Semitism in France, “the racism to which the immigrant descent populations in France are subjected is transmitted in ways that are far more numerous and diversified than the racism which targets the Jews” including discrimination in the workplace, inequalities, and exclusion leading to segregation in ghettos. The best policy for France to pursue in order to combat anti-Semitism is to combat racism in all its forms, targeting both the normalization of anti-Semitic and Islamophobic speech and addressing double standards when dealing with religious discrimination domestically and the racism faced by populations of immigrant descent . As defended by Wieviorka, “anti-Semitism should decline if an active and voluntarist form of political management at both local and national level were to replace, on the one hand, the process of ghettoization, racial and social discrimination and on the other, the non-recognition of the past and the historical roots of populations of immigrant descent.” While the anti-Semitic attacks blended into Palestinian or Arab advocacy need to be treated as clear and distinct manifestations of racism, this should be applied to the many
forms of Islamophobic racism sometimes blended into pro-Israeli rhetoric, as for example seen in the previously quoted works describing the “new anti-Semitism.” Treating all individuals on an equal footing as citizens of France and denouncing injustice would eliminate concurrent victimization and leave less political space for injustice. We may conclude that in order to adequately tackle anti-Semitism and societal tensions in France and elsewhere, “the Jewish community worldwide must be honest too about what is really being done in Israel, ostensibly in its name.” A goal for progress today is to encourage a public debate on the Israeli Palestinian conflict and domestic tensions between Muslims and Jews in an open and free manner without defamation and violence. The phenomena observed in France are “global” and “feed on transnational and world events,” and although France’s influence might be limited, a start towards progress would be to “resolutely adopt a stance in favor of peace between Israelis and Palestinians.” The status quo of Israel’s politics towards the West Bank and Gaza, the rhetoric of leaders generalizing Islam with terrorism, and the fact that leaders and organizations often claim that their stance reflects that of all Israelis or even Jews more broadly might serve the Israeli government’s short-term interests but do not appear to serve those of world Jewry. Several contested Jewish intellectuals and international onlookers suggest that this attempt to inherently tie anti-Semitism and criticism of Israel’s policies must be denounced, and that international criticism of Israel is in fact essential due to the unsustainability of the current situation in the region. Gideon Levy asserts in his many public appearances abroad and in articles that in the Israeli mindset and that of many individuals of the Jewish diaspora, Israel has no incentive to change and it is currently able to manage its interests both domestically and abroad. He argues that it is the right and even the duty of European countries and the US to criticize
Israel’s policies, not out of an opposition to Jews or even to Zionism, but as a way to trigger a sustainable change for the state to truly be a democracy free of occupation and living in peace with its neighbors and within the international community. It is essential to separate identity and religion from political leaders, their interests and their errors, and in the case of Israel this would enable co-existence and peace amongst peoples, from Israeli and Palestinians all the way to French citizens. Conclusion A solution that truly promotes long lasting change can be found if anti-Semitism is treated not as an inborn and cultural ill but as an unacceptable result of social and political dynamics both in France and on a global scale. The French government must take a strong stance in favor of Israeli-Palestinian peace in a way that emphasizes the respect of both religious tolerance and human rights. In so doing, the French can tackle racism domestically while concurrently working towards a more permanent resolution of the Israeli-Palestinian conflict on the world stage. Leaders are not perfect, and French politicians and members of French society must recognize significant caveats and double standards in the way they treat racism domestically, while Israelis, Jews and the international community must look upon the policies enacted by Israel as the decisions of individual leaders who make mistakes, and who must be pressured to reverse a dangerous conflation and a detrimental status quo of oppressive occupation. Voices are rising up at the civil society level, both in France and in the Middle East, from Christians, Jews, Muslims and others alike calling for a prioritization of justice, equality, coexistence and human compassion in reaction to the stigmas and socially constructed oppositions created on the behalf of religion or political alignment, and these carry the hope of inducing a progressive change in both the French and Israeli-Palestinian societies.
Wo r k s . c i t e d Amiel, Barbara. “Islamists Overplay Their Hand But London Salons Don’t See It.” Those Who Forget the Past: The Question of Anti-Semitism. Ed. Ron Rosenbaum. New York: Random House Trade Paperbacks, 2004. 31-35. Print. Beaumont, Peter. “The new anti-semitism?” The Guardian 17 Feb. 2002. Web. 28 March. 2015. Bilefsky, Dan. “Fear on the Rise: Jews in France Weigh an Exit.” The New York Times 12 Jan. 2015. Web. 4 April. 2015. Boniface, Pascal. Interview with Nina Hubinet. “Le conflit israelo-palestinien est importé en france depuis longtemps.” France 24 23 July. 2014. Web. 27 March. 2015. Boniface, Pascal. Interview with Alexandre Devecchio. “Pascal Boniface: Critiquer la politique d’Israël, ce n’est pas être anti-Semite.” Le Figaro 18 July. 2014. Web. 27 March. 2015. Boniface, Pascal. “Israël/Palestine. Antisémitisme: à l’éxagerer on ne fait que le renforcer.” NouvelObs 25 July. 2014. Web. 27 March. 2015. CNDH. “Rapport annuel sur le racisme, l’antisémitisme et la xénophobie.” Commission Nationale Consultative des Droits de l’Homme. 9 Apr. 2015. Web. 9 Apr. 2015. Finkelstein, Norman. “The New Anti-Semitism”. SJP UW-Madison, Madison, WI. 12 March. 2015. Online video clip. YouTube, 14 March. 2015. Web. 29 March. 2015.
the Past: The Question of Anti-Semitism. Ed. Ron Rosenbaum. New York: Random House Trade Paperbacks, 2004. 422-437. Print. Levy, Gideon. Conference. Dundee University. Dundee, Scotland. 16 Aug. 2010. Online Video Clip. YouTube, Aug 18. 2010. Web. 17 March. 2015. Philipps, Melanie. “The New Anti-Semitism.” Those Who Forget the Past: The Question of Anti Semitism. Ed. Ron Rosenbaum. New York: Random House Trade Paperbacks, 2004. 251-257. Print. Rabinovitch, Simon J. “Don’t Blame the Israeli-Palestinian Conflict for Muslim anti-Semitism in France.” Haaretz 8 Jan. 2015. Web. 23 March. 2015. Sahgal, Neha and Bill Webster. “French have positive views of both Jews, Muslims.” Pew Research Center 14 Jan. 2015. Web. 2 April. 2015. Schoenfeld, Gabriel. “Israel and the Anti-Semites.” Those Who Forget the Past: The Question of Anti-Semitism. Ed. Ron Rosenbaum. New York: Random House Trade Paperbacks, 2004. 96-115. Print. Wieviorka, Michel. The Lure of Anti-Semitism: Hatred of Jews in Present-Day France. Trans. Kristin Couper Lobel and Anna Declerck. Leiden: Brill, 2007. Print. Wieviorka, Michel. Interview with Vincent Daniel. “Antisémitisme: pourquoi le conflit israelo -palestinien déchaîne-t-il tant de passions en France?” France TV Info 10 Aug. 2014. Web. 24 March. 2015
Freedland, Jonathan. “Is Anti-Zionism Anti-Semitism?” Those Who Forget
The Case for Historically Black Colleges and Universities: Understanding Race Relations in the United States Through its HBCUs Priscille Biehlmann
a b s t r a c t a b s t r a i t There are over 100 Historically Black Colleges and Universities (HBCUs) in theUnited States today. These schools are driven by their historic responsibility as some of the central institutions for postsecondary education for African Americans. This essay traces the history of HBCUs and looks at empirical data to argue that though African Americans now have a constitutional right to attend Predominately White Institutions (PWIs), HBCUs continue to have distinct advantages for both Black and non-Black students. It is ultimately argued that HBCUs should be strengthened in the years to come light of the continued institutionalized racism that African Americans face in the United States today.
Il y a plus de 100 universités traditionnellement noires (HBCU pour « Historically black colleges and universities ») aux États-Unis aujourd’hui. Ces écoles sont encouragées par leur responsabilité historique en tant qu’institutions centrales envers l’éducation postsecondaire pour les Afro-Américains. Cette dissertation examine l’histoire de ces écoles et analyse les données empiriques afin de montrer que même si les Afro-Américains ont actuellement le droit constitutionnel d’avoir accès à l’éducation dans des institutions de prédominance blanche (PWIs), les HBCU continuent d’avoir des avantages distincts à la fois pour les étudiants noirs et non-noirs. Il est finalement soutenu que les HBCU devraient être encouragés et renforcés davantage dans les années à venir afin de lutter contre le racisme institutionnalisé auquel font face les Afro-Américains aux États-Unis aujourd’hui.
Keywords: racial.inequalities black. education opportunities white paternalism separate.but,equal The history of Black education in the United States has been characterized by exclusion. From the onset on the colonial period, European Americans did not allow Blacks into their schools. By the antebellum period, nearly every Southern state had laws in place specifically prohibiting the education of Black slaves. Well into the 20th century schools at all levels across the country were segregated, whether formally or informally, based on race. Despite their exclusion from mainstream education, African Americans continued to fight for the right to an education, from learning to read by candlelight away from the eyes of their masters during slavery, to pursuing an unrelenting legal campaign to break down barriers to opportunity in public schools during the Jim Crow era. Historically Black Colleges and Universities (HBCUs) are an important example of the Black struggle for education in the United States. These institutions were created in the years following the Civil War to foster opportunities for newly freed slaves at a time when very few such opportunities existed. HBCUs remained the primary institutions for higher education and social mobility for African Americans for the next one hundred years until the desegregation of public colleges in the 1960s (Kim and Conrad, 2006; Brown II and Davis, 2001). Today, there are 105 HBCUs across 20 states, the District of Columbia, and the U.S Virgin Islands. They are driven by their historic responsibility as some of the central institutions for postsecondary education for African Americans in a context of continued racial discrimination. Though they constitute only 3% of American institutions of higher education, they enroll over 14% of all African American students and graduate almost 29% of all African Americans who earn a degree (Bailey, 2003; Henderson, 2001). Of the top 10 col-
leges that graduate African Americans who go on to earn PhDs and MDs, 9 are HBCUs (Palmer, 2010). Though these achievements are remarkable, HBCUs have faced significant obstacles to their success. Notably, these institutions have continually struggled with low student retention, inadequate funding, and declining enrollment (Brower and Ketterhagen, 2004; Walker, 2006; Walters, 2006.). They have also been accused by some in the higher education community of compromising America’s commitment to desegregation since the Brown v. Board Supreme Court decision in 1954 (Guy-Sheftall, 2006; Hamilton, 2002). These challenges have had significant ramifications for these schools, at times threatening their very existence. This essay seeks to sift through the wealth of information and empirical data on HBCUs to answer a few central questions: In what context did HBCUs emerge in and how did this history influence the form they took? How did landmark Supreme Court cases like Plessy v. Ferguson and Brown v. Board affect these institutions? Do HBCUs still have a place in higher education opportunities for Blacks today? What role do they play in higher education for Whites and other nonBlack minorities? Shedding some light on these questions helps us to better comprehend the role these institutions have played (and continue to play) in redressing racial inequalities in educational opportunities within and outside of the United States. The question of HBCUs taps into wider tensions in American politics and society today: Will the country pursue a “color-blind” model for the nation, or a “race-conscious” one? The path the nation chooses will most probably determine the future of race relations in the United States in the years to come. This essay will provide insights into these questions by looking
at HBCUs through a chronological historical lens. First, I will trace their emergence during Reconstruction and subsequent growth throughout the Jim Crow era, arguing that that while most HBCUs were created largely to ensure continued segregation in higher education, HBCUs played a crucial role in African American socioeconomic mobility throughout the second half of the 19th and first half of the 20th century. I then examine the effects that the 1898 Plessy v. Ferguson and 1954 Brown v Board Supreme Court cases had upon HBCUs. I then move to an assessment of the role that HBCUs play in higher education today, using strong empirical evidence to argue that though African Americans now have a constitutional right to attend Predominately White Institutions (PWIs), HBCUs continue to provide distinct advantages for both Black and non-Black students. I conclude by analyzing how recent attacks on affirmative action policies, as well as White House initiatives to strengthen HBCUs, will affect HBCUs in the years to come. The findings in this historical and empirical analysis are clear; HBCUs have been a crucial component of America’s higher education system since their founding during Reconstruction, and continue to provide advantages to not only Black students, but to White and other non-Black minority students as well. These schools should be maintained and indeed strengthened in the years to come, in light of the continued institutionalized racism that Blacks face in the United States today. The Emergence of HBCUs from Reconstruction through Jim Crow The Mission of HBCUs Historically Black colleges and universities emerged out of a unique historical context. After the abolition of slavery during the Civil War, the United States was faced with the task of redefining its social order, in particular, the role that the new four million would have in American society. While some Americans advocated
for government intervention in order to ensure the creation of economic and social opportunities for Blacks, other were intent on maintaining the status quo of racial oppression. The question of Black education was a top societal concern during Reconstruction. In their historical analysis of HBCUs, Brown and Davis (2001) argue that these institutions were the result of a post-Civil War “social contract” between Whites and newly-freed Blacks, in which the US government took active measures to “reconcile the tattered relation between America and the descendants of Africa,” (pg. 34). As a result, more than 200 HBCUs were founded between 1860-1890, mostly by White abolitionists and missionaries, many of them with funds and land grants endowed by the federal government (Brown, 2002). The primary goal of these institutions was to provide higher education for Black Americans during a time when no other establishment would serve this need. HBCUs were thus borne out of necessity, arising “as a humanitarian response to the educational needs of black people,” (Blackwell, 1976). On a larger scale, the creation of HBCUs was driven by the goal of the collective economic and social advancement of Black Americans, a point which will be elaborated on in later sections. However, these institutions were also exploited by Whites as a way to ensure the continued subordination of Blacks and in education and beyond. By segregating Black students into separate and markedly inferior schools, Whites could limit the quality of Black education, and consequently their ability to compete economically and politically mobilize. Evans, Evans, and Evans (2002) even goes as far as to argue that HBCUs were specifically designed not to succeed as institutions of higher learning, but rather “to appease Black people or to serve as a ‘holding institution’ so that Black students would not matriculate in historically White colleges and universities,” (pg. 3). Whether this was or was not their true intent, the fact remained that most of these
schools were established and funded by White missionaries and an overwhelmingly White federal government. This had important implications for the curriculum, management, and mission of the Black colleges of the 19th century, which according to Allen (2002) boiled down to “White paternalism.” HBCUs provided the only avenue to higher education for Black Americans in the years after the Civil War. They enrolled tens of thousands of students and produced leading Black figures like Booker T. Washington and Martin Luther King Jr. Over the next century, control of these institutions gradually shifted from the grasps of White missionaries and into the hands of Black faculty. However, the federal government continued to have a strong influence over these schools. Two Supreme Court cases in particular were of central importance in shaping the HBCUs of the 20th century. Plessy v. Ferguson The landmark decision in the 1896 Plessy v. Ferguson Supreme Court case had important, albeit unexpected implications for HBCUs. In a 7-1 verdict, the court upheld state segregation laws in public facilities under the doctrine of ‘separate but equal.’ The decision simultaneously limited and strengthened opportunities for Blacks in higher education. While it sanctioned segregation policies that barred Blacks from White institutions, it also led to legislation such as the Second Morrill Act that specifically prohibited states from practicing discriminating college admissions, unless they could provide ‘separate but equal’ facilities for both races (Brown, 1999). As a result, Southern states reluctantly increased funding for HBCUs in order to ensure compliance (however loosely) with the ruling, allowing continued racial discrimination in White institutions. This increased funding allowed HBCUs to develop more robust academic programs, improve facilities, and enroll more students, ultimately strengthening the institutions (Samuels, 2005).
HBCUs continued to be grossly underfunded in comparison to their predominantly White counterparts. Many states were able to evade federal requirements for equal facilities altogether. Often, when states did grant funds to Black colleges, it was for only a fraction of what the HBCUs were legally entitled to (Samuels, 2005). The limited state funding resulted in the continued and marked inferiority of HBCUs into the 20th century. For this reason, African American civil rights groups began calling for the desegregation of colleges and universities across the country. The National Association for the Advancement of Colored People (NAACP) in particular championed desegregation in higher education in the 1940s and 1950s, often through tireless campaigns in state courts. However, these litigation strategies proved ineffective, as Southern state legislatures continued to fight off integration efforts by reactively upgrading Black colleges. As Samuels (2005) outlines, “The pattern was usually predictable: a black student would apply for admission to an allwhite graduate school or professional school. After the institution’s governing board summarily denied the application, there would be a sense of urgency to create a separate program at one of the state’s black colleges to preserve the all-white character of the institution whose admissions policy had been challenged,” (pg. 53). Thus, the ‘separate but equal’ doctrine established in the Plessy v. Ferguson ruling had contradictory effects on HBCUs. While it resulted in greater state funding for these institutions, this funding materialized at the cost of continued racial discrimination in admissions to significantly better White colleges and universities. Brown v. Board of Education In wasn’t until 1954 that the
Supreme Court rescinded its earlier decision in Plessy v. Ferguson and ruled unequivocally in the landmark case, Brown v. Board of Education, that segregation in public education “is a denial of the equal protection of the law” and that “‘separate but equal’ has no place” in state-funded institutions. While this decision was a clear victory in the fight for African American higher education, it raised important questions about the place of HBCUs in American society. Was the existence of state-funded Black colleges now antithetical to United States’ newfound commitment to desegregation? Or did HBCUs continue to be crucial actors in the fight for equal education opportunities for African Americans? The decision prohibited state-sponsored segregation because it denied African Americans the power to determine their own destiny, Samuels (2005) argues that “it did not, and should not, apply to the voluntary choices made by black students regarding the educational institutions they decide to attend,” (pg. 7). If we adhere to Samuels’ interpretation of the Brown decision as essentially prohibiting constraints on educational opportunities for Blacks, HBCUs remain harmonious with the nation’s commitment to desegregation since Brown. This compatibility is clear when HBCUs are compared to similar institutions that were also founded on a particular group identity, including women’s colleges such as Sarah Lawrence, or religious colleges such as Duke (Catholic) and Brandeis (Jewish).
“The question of HBCUs taps into wider tensions in American politics and society today: Will the country pursue a ‘colorblind’ model for the nation or a ‘race-conscious’ one?”
These institutions had been created in reaction to their exclusion from mainstream higher education or their desire for institutions that represented their common identity or values. Like HBCUs, these schools are able to provide academic, social, and physiological advantages for their students that are a result of the environments they foster, free from discrimination based on race, gender, or religion in admissions. The fact that they were founded on a particular group identity, be it race, gender or religion, is not antithetical to desegregation, as long as these schools do not discriminate in their applications. HBCUs Today Advantages for Black Students Despite the Supreme Court’s decision that African Americans have the unequivocal constitutional right to attend PWIs, HBCUs continue to have an important role to play in the Black higher education in the United States today. A wealth of empirical research supports the claim that HBCUs provide many advantages for African American students seeking higher education that PWIs do not. For instance, research has found that Black students who attend HBCUs earned higher wages than those who attended other institutions of higher education (Constantine, 1994). African American graduates from HBCUs are more likely to pursue a doctoral degree and other post-graduate degrees than black students at PWIs (Joseph, 2013; Drewry and Doermann, 2001, Wenglinsky, 1996). As previously mentioned, of the top ten colleges that graduate Blacks who go on to earn PhDs and MD, nine are HBCUs (Palmer, 2010). A study by Henderson (2001) found that 80% of Black officers in the United States military, 80% of Black federal judges, 65% of Black physicians, 60% of Black attorneys, and 50% of Black teachers and engineers are HBCU graduates. Research has consistently shown that Black students attending HBCUs have significantly higher psychosocial wellness, are more engaged
in their campus community, and have greater confidence when compared to their counterparts at PWIs (Allen, 1992; Fleming, 1984; Fries-Britt and Turner, 2002). Further still, Black students at HBCUs tend to have better relationships with faculty, higher academic success and intellectual development, and an overall greater satisfaction with their university experience than Black students attending PWIs (Fleming, 1984; Boer et al, 1995). HBCUs also have a better track record than their predominantly White counterparts of encouraging the academic and professional success of economically disadvantaged and underprepared Black students. Many of these schools have specific programs in place to help these students adjust to the collegiate-level workload. In one example, Elizabeth City State University, an HBCU in North Carolina that accepts a large percentage of low-income and first-generation students, has seen a lot of success with its “Basic Education and Enrichment Program.” This program provides tutoring, studyskills workshops, and other services to students whose academic backgrounds reflect low levels of achievement (ECSU, 2006). Other HBCUs like Fort Valley State College in Georgia, Knoxville College in Tennessee, Federal City College in Washington, D.C, and Paul Quinn College in Texas, among many others, also have “catch-up” programs in place that are specifically designed to make up for deficiencies in secondary schooling that many of its students face (Willie, Reddick, and Brown, 2003; Davis, 1998). HBCUs’ longstanding history of serving poor and marginalized students has allowed them to develop effective remedial programs and services that help underprepared students succeed in university. It should be mentioned here that HBCUs are often criticized for their lower graduation rates, which hovers around an average of only 30% (NCES, 2011). However, this statistic is not telling the full story. For instance, it does not take into account the fact that HBCUs take
on the lion’s share of first-generation and low-income students (Mercer & Stedman, 2008). Despite the significant headway the programs mentioned above have made, these students remain for a variety of reasons, less likely to graduate regardless of the school they attend. This point is reaffirmed by the fact that PWIs with a similar percentage of low-income and first-generation students have similar graduation rates as HBCUs at large (Kim and Conrad, 2006). It is also worth noting that most HBCUs are located in Southern states, where graduation rates for all colleges and universities are lower than the national average (Gasman, 2012). It is important to keep these caveats in mind when criticizing Black colleges on their stats. In fact, I argue that the fact that these schools take on so many disadvantaged students confirms their importance to higher education, and indeed highlights their efforts in redressing socioeconomic inequalities at large. A More Welcoming Institutional Environment The reasons for this overall more positive experience for Black students attending HBCUs than those attending PWIs can be closely linked to the unique institutional climate that HBCUs provide for students of color. Research has consistently found that these institutions foster a more encouraging and understanding environment for Black students, given the higher percentage of Black faculty and administrators as role models and the “psychological advantages that accrue from being in the visible majority,” (Sibulkin and Butler, 2011, pg. 848; Palmer, Davis, and Gasman 2011; Palmer, 2010). The presence of Black faculty and peers creates a setting that is in tune with the “specific knowledge of the Black experience in America,” which can help Black students feel comfortable and involved in their classes and campus (Brown and Davis, 2001, pg. 42). This more nurturing environment also has the effect of creating stronger
social networks for Black students that become important sources of “social capital” for these students in the future (Brown and Davis, 2001, pg. 42). This findings present a stark contrast to the experiences of Black students at PWIs, who often report feelings of alienation and disconnect from faculty, their White peers, and the campus community at large (Johnson, 2005; Person and Christensen, 1996). An in-depth study on the experiences of Black students at PWIs found that Black students cited concerns that their professors and course material barely touched on Black issues, if it all (Johnson, 2005). Transcripts from interviews conducted during the study demonstrate the dismay that many Black students feel about the lack of attention paid to Black issues in the classroom: “I feel like [the professors] deprive us because I guess it’s generally just based on Caucasians,”; “The professors were not sensitive to my being an African American, my being an African American in the classroom,”; “I feel like I’m left out. I’m left out,” (Johnson, 2005, 59). Some students even felt that their professors were afraid to discuss racial topics in class. Black students also reported feeling stereotyped by university staff. For example, one student felt that the administration staff was often reluctant or slow to grant permission to Black students seeking to hold social events on campus (Johnson, 2005). Beyond the classroom, Black students attending PWIs also tend to feel alienated from their peers, who are predominately White. They are often put in situations where they feel they have to act as the “defenders” and “explainers” of their race to White students (Feagin, Vera, and Imani, 1996, 91). In a study conducted by Fries-Britt and Turner (2001) one Black student attending a PWI described feeling a constant need to prove to her White peers that she was as intellectually competent as they were: “As far as my major, I am one of a few African American stu-
dents and it’s hard for me to see what people think or whatever. But when I first got here I had to prove myself, prove myself, and prove myself. It was not like I would go up to them and say, “now you see?” But it’s like they kept doubting me and doubting me,” (pg. 426).
These students often feel stereotyped by their White peers and face subtle micro-aggressions and even blatant racism at social events on and off campus. For instance, numerous Black males in Johnson’s (2005) study cited feeling that their classmates assumed they were at university because they were recruited to play sports rather than attending the university for its academics (pg. 67). Black students are also frequently stigmatized for being perceived as recipients of affirmative action policies, regardless of personal achievements (Feagin, Vera, and Imani, 1996). More flagrant examples include instances of campus fraternities and sororities hosting “ghetto-themed” parties, during which White students poke fun at Black stereotypes by wearing blackface, drinking from watermelon cups, and posing for pictures holding while forming gang signs with their hands. These students often feel stereotyped by their White peers and face subtle micro-aggressions and even blatant racism at social events on and off campus. For instance, numerous Black males in Johnson’s (2005) study cited feeling that their classmates assumed they were at university because they were recruited to play sports rather than attending the university for its academics (pg. 67). Black students are also frequently stigmatized for being perceived as recipients of affirmative action policies, regardless of personal achievements (Feagin, Vera, and Imani, 1996). More flagrant examples include instances of campus fraternities and sororities hosting “ghetto-themed” parties, during which White students poke fun at Black stereotypes by wear-
ing blackface, drinking from watermelon cups, and posing for pictures holding while forming gang signs with their hands. Negga, Applewhite, and Livingston (2007) found that Black students attending a PWI reported having lower levels of social support from faculty and peers when compared both to White students and to Black students at an HBCU. This social alienation can have serious consequences for the mental health of Black students at PWIs, with an abundance of research evidencing that this can result in increased psychosocial stress and hinder academic performance (Allen, 1992; Fleming, 1984; Love, 1993; Phelon-Rucker, 2000). Aside from the significant consequences that these feelings of alienation and exclusion from faculty and peers can have on Black students’ mental health and academic success, alienation at PWIs further limits Black students access to the formal and informal social networks that are critical for professional and personal growth in university (Brown and Davis, 2001, pg. 44). HBCUs and Black Cultural Identity Beyond the academic, professional, and psychological advantages HBCUs provide for Black students, these institutions also have an important role to play in maintaining and strengthening a sense of African American identity in their students. HBCUs work to preserve Black historical and cultural tradition, creating leaders and role models for the Black community, and stimulating economic growth within the Black community (Allen, 1992). This is done in part by providing a curriculum and campus life focused on Black issues, Black perspectives, and Black history (Mays, 1978). A feeling of Black racial unity is also fostered as a result of a student body that is made up of “poor and affluent people, the dispossessed and the well connected. Such diversity tends to prevent the development of social class stereotypes among Black people,” (Willies, Reddick and
Brown, 2005, pg. 6). In this sense, HBCUs are unique in their role as vehicles for the collective advancement of African Americans. In focusing on their Black identity, these schools are driven not only by goals of providing educational opportunities to individual students and gaining status as nationally ranked institutions; they are also motivated by an “ethical goal of serving the needs of Black Americans,” (Willie, Reddick, and Brown, 2005, pg. 59). This ideal of a shared Black mission for HBCUs is clearly expressed in the 1945 speech given by the president of Morehouse College, a prominent HBCU in Atlanta: “It will not be sufficient for Morehouse College…to produce clever graduates, men fluent in speech and able to argue their way through; but rather, honest men, men who are sensitive to the wrongs, the sufferings and the injustices of society and who are willing to accept responsibility for correcting the ills,” (quoted in Willie, Reddick, and Brown, 2005, pg 56). For African Americans, higher education is the pathway to both individual success and the collective advancement of all Blacks. HBCUs take this task head on by creating an institutional environment that reminds its students of the nation’s Black past, present, and future. This creates students who are conscious of Black issues and are more willing and able to pursue these issues in their personal, professional, and political lives after graduation. The Experiences of Non-Black Students at HBCUs Though HBCUs are defined in large part by their Black identity and mission, they are committed to diversity in their student body and within their faculty. Many HBCUs active-
ly recruit other racial minorities and White students, and consequently have sizable non-Black populations. As of 2011, over a quarter of HBCUs across the United States have at least a 20% non-Black student body (NCES, 2011). This diversity applies to faculty where non-Blacks made up anywhere from 28% to 40% of professors and administrators at HBCUs (quoted in Willie, Reddick, and Brown, 2005, pg. xvii). There exits some fear that increasing non-Black population threatens to undermine the original mission and identity of these institutions (Issa, 2014; Gasman, 2012). However, I argue that this diversity actually strengthens the schools and their mission as it fosters an appreciation and respect for Black culture among the broader population and helps break down stereotypes nonBlack students may have about African Americans. Indeed, the presence of non-Black students does not threaten the integrity of HBCUs in the same way that the presence of racial minorities does not threaten the integrity of PWIs. Normative claims about the implications of an increased non-Black student body aside, empirical evidence suggests that like their Black peers, non-Black students also significantly benefit from the attending HBCUs. Not only do these schools provide non-Black students with a top-tier education – HBCUs like Howard University, Spelman College, and Morehouse College are consistently ranked among the top schools in the country – but they also provide them with opportunities for personal and intellectual growth. For instance, in a study by Willie (1981) over 75% of White students attending HBCUs reported that “education on Black campuses heightened their appreciation of different ways of life and caused them to be more concerned about equal opportunity for all,” (pg. 89-90). Moreover, White students attending HBCUs said that their multicultural experience would help them be more effective in their future careers, and felt they had benefited from the ex-
perience of being “temporary minorities,” (Willie, 1981, pg. 80). Non-Black minorities like Latinos also report positive experienced on HBCUs campuses, in part because they often come from disadvantaged backgrounds similar to many of their Black peers and benefit from the remedial programs mentioned above that these schools offer (Gasman, 2012). The academic, profession, psychological, and social benefits of HBCUs for both Black and non-Black students highlighted in this section demonstrate that despite the desegregation of higher education, these institutions are still important actors in higher education. The Future of HBCUs The positive effects HBCUs have on both Black and non-students’ mental health, self-confidence, and academic, professional, and personal growth signals the importance that these institutions play in higher education today. These empirics provide convincing evidence to justify not only the continued existence of, but also the grounds for the strengthening of HBCUs across the country. In essence, this implies a need for increased funding for these schools. Hikes in student tuition cannot be the source of this expanded funding, as the annual income of Blacks continues to be markedly lower than that of national average at all income levels (CNN Money, 2014), and thus would disproportionately burden this group and prevent many Black students from attending HBCUs altogether. The support must instead come from either private donors or federal and state governments. HBCUs under President Obama The Obama administration has taken steps to support Black colleges in its second term, focusing its efforts on increasing funding for the schools and strengthening the relationship between the schools and executive branch. In February 2010, President Obama signed an Executive Order establishing the “White House Initiative on Histori-
cally Black Colleges and Universities” and the “President’s Board of Advisors on Historically Black Colleges and Universities.” This first body, housed within the Department of Education, is tasked with fostering private-sector initiatives and public-private partnerships to promote the development of HBCUs and improving the quality of information about HBCUs available to the public. The second is made up largely of HBCU presidents from around the United States and is tasked with “advising the Obama Administration on matters pertaining to strengthening the educational capacity of these institutions,” (OPS, 2010). The executive order provides for the greater involvement of the Department of Education and the executive branch in the fate of HBCUs, requiring these bodies to prepare annual plans for improving education in these schools and submitting annual progress reports on these plans to the President and the education secretary. In addition to the 2010 Executive Order establishing these two bodies, the Obama administration has worked to strengthen educational opportunities at HBCUs through its recent fiscal budgets. In 2011, it allocated $98 million in new funds for HBCUs within the Department of Education budget and increased its funding for the Strengthening Historically Black Graduate Institution program by 5%. It also allotted $20.5 million for the HBCU Capital Financing program, which provides money to finance renovations of infrastructure on HBCU campuses like classrooms, libraries, and dorms (OPS, 2010). The money can also be used to buy new research instruments and instructional equipment and build new educational facilities. While it is difficult to assess the direct impact these initiatives and funding packages have had on Black colleges because of how recently they were implemented, they demonstrate a new level of commitment from the federal government to the mission of Black higher education. This support from the executive
branch is incredibly important in light of recent Supreme Court decisions that have resulted in the steady dismantling of affirmative action across the country. The Demise of Affirmative Action and its Implications for HBCUs The 1978 University of California Regents v. Bakke case was the first successful challenge to affirmative action policies. Allan Bakke, a White student, sued the University of California, Davis medical school on the grounds that the school’s affirmative action policy had unfairly discriminated against his application because of his race. The case made its way to the Supreme Court, where the Court ruled 5-4 that though race was an acceptable factor to consider in admissions as long as the program served a “compelling government interest,” the use of racial quotas was prohibited under the constitution. This instigated the gradual weakening of affirmative action programs for racial minorities in colleges and universities across the country, as schools cut their quota programs and restructured their admissions policies. The next challenge came from the Hopwood v. Texas case of 1996. Here, four White students who were denied admission to Texas Law School sued the university for its affirmative action programs, claiming they had applied with higher LSAT scores and GPAs than 36 of the 43 Latinos admitted, and 16 of the 18 black students admitted. The U.S District Court ruled that these policies remained necessary until the nation could overcome its problems of institutionalized racism. However, the decision was overruled by the U.S Court of Appeals, 5th Circuit, which declared race-sensitive admissions policies were unconstitutional. Affirmative action policies were thus prohibited in the three states that 5th circuit has jurisdiction over until the 2003 Grutter v. Bollinger decision, which reaffirmed the limited use of race in admissions decisions. Since then, California, Washington, and Florida have all passed laws prohibiting the
use of race-conscious policies in public institutions. Though each of these states has implemented other programs to increase minority enrollment, these have not been nearly as effective in promoting higher education opportunities for minorities (Horn and Flores, 2003). This string of attacks on affirmative action programs could result in the revival of HBCUs as the primary institutions for African American higher education, as PWIs become less accessible to Black students. As Palmer (2010) points out, state governments have largely abandoned race-conscious policies in recent years in favor of building a so called race-blind society, which will “inevitably result in fewer opportunities from African American students... making Black colleges and the role that they play even more important,” (pg. 771). If state legislatures and the courts continue to limit the use of affirmative action programs in higher education, HBCUs may once again become the primary providers for Black higher education. The schools will then need all the support they can get from private donors and other branches of the federal government. President Obama’s initiatives may not be sufficient on their own to enable HBCUs to surmount the task they face, however they signal a step in the right direction.
Black identity. This success justifies the continued existence and reinforcement of Black colleges across the country. Further still, it suggests that PWIs can benefit from forming closer ties with HBCUs, who can teach them how to effectively handle the education of low-income and first generation students and create a more welcoming environments for their minority students.
Conclusion A long history of achievement and a wealth of empirical data evidences that HBCUs represent an important component of the higher education system in the United States. They are essential to America’s higher education system because of the supportive and welcoming institutional environment they create for Black and non-Black students alike. The academic, professional, psychological, and personal benefits that accrue from the studying within an HBCU environment in conjunction with their innovative strategies for teaching low-income and first generation students, cements their critical role as the nurturers of a collective
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