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ABOVE AND BEYOND INTERNATIONAL LAW:
GEORGE W. BUSH AS THE AUSTINIAN SOVEREIGN

Professor Ali Khan
Washburn University School of Law
JURIST Contributing Editor

For centuries, international law has been anchored in the theory of contracts. Treaties are explicit contracts among states, but even customary international law, at least in its formative stages, is founded on consent and is derived from voluntary state practices.

All along, powerful nations have influenced international law. Yet in modern times no single state - no single sovereign - has claimed the authority to make laws for the rest of the world. International law has, since the Second World War, admittedly developed some coercive elements in its genetic structure, but it nonetheless remains, both in its essence and legitimacy, the law of partnership. This jurisprudence might change, however, if George Walker Bush is successful in crowning himself as the Austinian Sovereign.

In 1832, the English legal theorist John Austin articulated his famous concept of the Sovereign, in his celebrated work The Province of Jurisprudence Determined. 鉄upreme power limited by positive law, he declared, 妬s a flat contradiction in terms. The Sovereign may impose laws and morals on himself, but these 菟rinciples or maxims are mere guides; the Sovereign is under no obligation to be constrained by these self-imposed limitations. The Sovereign has the ultimate authority to "abrogate the law at pleasure. If the Sovereign is bound to observe the law, Austin argued, he is no longer the Sovereign. On the basis of this logic, Austin concluded, that a departure by a Sovereign from any law is within the domain of his authority, and the inferiors are under a legal obligation to obey the Sovereign.

President Bush has gone to war on Iraq without the approval of the UN Security Council. The question remains whether the United Nations, has now, in the President痴 own words, become 妬rrelevant. President Bush痴 unilateralism has offended many nations, including China, Russia, and France. The President痴 departure from the United Nations Charter, however, makes perfect sense in the domain of Austinian jurisprudence, as it does in the realm of power.

In the realm of power, international relations flow from the dynamics of superior military and economic power. In the Security Council, Cameroon has a vote but no power. France has a veto but its power is not the same as that of the United States. Therefore, the logic of power would dictate that permanent and non-permanent members of the Security Council submit to the United States might rather than play games with the mechanics of voting. The five vetoes have collapsed into one, recognizing an already well-known reality that there exists only one super-power, the United States of America. In this new realm of power, the 電emocratic authority of the majority is confusing, if not outright meaningless. (It was this positivist logic upon which the apartheid in South Africa was established.)

The arguments of power are not always devoid of law. In the domain of Austinian jurisprudence, the matter is even more lucid. George Walker Bush is willing to be guided by the principles and maxims of the United Nations Charter. He would have been pleased to obtain a resolution that supported his option for war. But international law cannot be allowed to restrain his options, for President Bush, as the Austinian Sovereign, is fully empowered to 殿brogate the Charter at his pleasure.

One might further argue that a new norm has been established in international jurisprudence. International law is now subject to the authority of the United States President. International law may still be learned and taught, using the metaphor of partnership. It may still contain elements of the law of contracts. But its fundamental nature has changed. The norms of international law are valid only if the President says so. And if the President says a norm of international law is binding on other nations, it is, even if the same norm is not binding on the United States.

Iraq, for example, must adhere to the Geneva Conventions and treat American prisoners of war accordingly. This is so because the President says so. And no one can question the President (the Austinian Sovereign) as to why the same Conventions do not apply to the prisoners of war detained in see-through cages at Guantanamo Bay.

This analysis is not offered as a jest or satire, but as a serious presentation of a possible development in the theory of international law. One wonders, however, whether President Bush has thought through the consequences of his approach. Does he appreciate that Austinian jurisprudence - in name, or in fact - could not sustain the British Empire, on which the sun has now definitely set? And does he appreciate the irony of the fact that Austin himself was never formally trained in international law, but rather obtained his legal understandings, as the famed English legal historian William Holdsworth has somewhat snidely put it, "by means of undirected reading and discussion"?


Ali Khan is a professor at Washburn University School of Law in Kansas, and is the author of A Theory of Universal Democracy: Beyond the End of History (Kluwer, 2003).

January 24, 2003

GUEST COLUMNIST

JURIST Contributing Editor Ali Khan is Professor of Law at Washburn University School of Law in Topeka, Kansas. A law graduate of Punjab University in Lahore, Pakistan, he also holds LL.M. and S.J.D. degrees from New York University, where he was the Robert Marshall Fellow in Civil Liberties and the Judge Jacob D. Fuchsberg Fellow in Criminal Law. At Washburn he teaches international law and human rights. He has published numerous articles on international law. His latest book, A Theory of Universal Democracy: Beyond the End of History has just been published by Kluwer.

Professor Khan is a member of the New York Bar.