Jordan J. Paust, Tolerance in the Age of Increased Interdependence

56 Fla. L. Rev. 987 (2004) | | | |

INTRODUCTION :: For several reasons, I hope that you will be a relatively tolerant reader. I am not sure that I can offer insights that an experienced psychiatrist or sensitive moral philosopher might lend to a discussion of love, loyalty, nationalism, patriotism, and what most assuredly fosters respect for the dignity of other human beings as opposed to human indignity and its many unacceptable and criminal consequences. In my opinion, a capacity for love and a general tolerance of others are quite important. Thus, I tend to agree with Viet Dinh that when we love, we tend to love locally, and that love within a family can form a base for love, or at least respect and tolerance, of others locally, nationally, and universally. It also seems apparent that “[l]iberal democracy requires a healthy dose of mutual commitment” and sharing. Perhaps these qualities relate even to a liberal being as opposed to one who is withdrawn, isolated, and prone to anger, if not violence.

I hesitate, however, when presented with alleged postulates such as “loving our country . . . allows us (indeed requires us) to love others more” and “[l]oyalty to our nation . . . fosters a commitment to universal principles,” assuming that Professor Dinh means preferable principles- for example, those commonly associated with the advancement of human dignity. What, indeed, is the full meaning of preferable patriotism or love of country?

I wonder, for example, whether Lieutenant William Calley had a normal capacity for love (or even a normal or healthy love of his country). I also wonder whether love of and loyalty to the United States assure that United States soldiers will not murder captured and defenseless


Vietnamese women and children, or that they will not torture captured Arab or Muslim men in Iraq or elsewhere. Did patriotism and loyalty to the United States protect United States citizens of Japanese ancestry from being publicly humiliated, mistreated, and sent to concentration camps by those within our military who acted in the name of patriotism and loyalty, and to whom a compliant majority of the United States Supreme Court deferred?

Did love of country contribute to the creation of racist land laws in California, or laws to keep out the “‘yellow horde’” and stave off the “‘yellow peril,’” or to the racist immigration laws passed by Congress, in the words of a nationalistic Supreme Court, to exclude the “vast hordes” from our shores? Are members of the Ku Klux Klan relatively patriotic and conservative, or relatively cosmopolitan and liberal? Would loyalty and patriotism, as understood by Professor Dinh, require deference to President Bush with respect to the forced disappearance of thousands of persons detained at Guantanamo and elsewhere after September 11, in violation of international law? Or would they require deference to “universal principles” enshrined in the Bill of Rights, the 1949 Geneva Conventions, and various human rights treaties? Indeed, should persons within the Administration who participated in a common plan to violate the law deserve the loyalty of any human being? More generally, does patriotic loyalty assure the creation or enhancement of liberal democracy and the liberal being?

Moreover, what if the state is not the United States, but Hitler’s Germany, the Stalinist Soviet Union, the Khmer Rouge in Cambodia, the apartheid regime in South Africa, Milosevic’s Yugoslavia, Saddam Hussein’s Iraq, or the present dictatorships in North Korea and Zimbabwe? Would love of country and loyalty to the state in such settings foster human dignity and degrade terrorism? As an international law professor, I know that such forms of love and loyalty would not be defenses to international crime. From a psychological perspective, however, were those who served or still serve the evils of human indignity in such states “rudderless person[s]“? Or, did they have “‘shared experiences and cooperative activity’” that allowed them to participate in “‘a process of association and mutuality, the ongoing character of which . . . claims to protect against external encroachment’” and “‘have common glories in the past and . . . have a common will[,] . . . a grand solidarity, constituted by the sentiment of sacrifices’”? Do many non-state terrorists share experiences and engage in associational processes similar to those of the state actor terrorists noted above? Did non-state Catholics and Protestants in Northern Ireland? Do bin Laden and his associates?

Viet Dinh seems to assume that what clearly distinguishes preferable associational experiences that foster human dignity from those that do not is patriotism that is territorially based, a love and loyalty to a state. Whatever love and loyalty drives bin Laden and a growing number of Islamic extremists across continents who kill infidels without any putative non-religious distinction is admittedly not based in a single state. However, from the few examples of allegedly loyal, nationalistic, and patriotic state actor terrorists noted above, it is evident that patriotism with a territorial base provides no assurance of preferred outcomes and effects. Some who follow bin Laden proclaim their love and loyalty to an Islamic nation. Would their terroristic tactics against any who disagree be abandoned if the Islamic nation that they prefer had a single territorial base and if they were generally free from outside intervention? Indeed, would use of terroristic tactics disappear if their extremist nation was global and generally in power?

It seems that more than territoriality is involved. In fact, territorial enclaves within a state, region, or global community can also foster unhealthy distinctions between “them” and “us” and can deflate what seems to be at least as important as a capacity for love-a general tolerance of “the others.” Clearly, racist, ideologically intolerant, and religiously intolerant love of groups, loyalty, and patriotism are insufficient. Perhaps a healthy tolerance of others is even a necessary aspect of a healthy capacity for love. I prefer the phrase “general tolerance” because tolerance of intolerance is not always preferable, nor is nonintervention. Lines are sometimes difficult to draw between tolerance that is and is not preferable. The same pertains to preferred commitment and intervention by diplomatic, political, economic, and physical means. Yet, there are often generally shared legal expectations or cores of normative content that provide the legally trained with a basis for choice concerning the legal limits of tolerance and the permissibility of intervention.

The claimed desirability of reactive parochialism, primacy of the supposedly autonomous state, and nonintervention in an age of increased and growing interdependence (what Professor Dinh postulates as an age of terror), raise other issues of concern that pose points of disagreement. Professor Dinh’s argument in this regard confuses “state” with “nation,” and it appears to rest on ahistorical assumptions that there exists a supposed “monopoly on force of nation-states” and that a “central lesson of September 11 [is] that nation-states no longer have a monopoly on the motives and means of war.” However, under international law the participants in “war” have long included states, nations, belligerents, and insurgents. Thus, clearly, the state has never had a monopoly on the use of force or the motives and means of war. Additionally, armed violence not amounting to war or even insurgency has often been engaged in by nonstate actors, including nineteenth and twentieth century anarchists unmoored from geography, and transnational terrorists. Moreover, terrorism, whether in times of relative peace or war, certainly is not new. Why would one conclude, then, that our living generations are in a “new era, the Age of Terror”? And why should September 11 “define our domestic and foreign policy”? Indeed, applying the rhetoric and labels of “war” and “combatant” when international law does not (for example, in contexts where social violence is less than an insurgency), can be policy-thwarting and dangerous.

In any event, acceptance of dangerous “war” rhetoric and a specious need to allow September 11 to “define our domestic and foreign policy” is not necessary in order to address Professor Dinh’s final three recommendations. It is certainly not necessary to accept Professor Dinh’s preferences that states realize their collective interests and obligations to combat terrorism, and that universal jurisdiction pertains, because the international community has already made these recognitions, and did so prior to September 11. Importantly, the international community also recognized legal obligations of states to bring into custody those reasonably accused of committing customary and treaty-based international crimes, including impermissible terrorism, and to initiate prosecution of or extradition of such persons. Obligations already exist to provide opportunities for civil sanctions against such persons with respect to underlying human rights violations, and civil sanctions can aid overall efforts to combat terrorism.

The fallacies of “autonomous” states, a ban on all forms of intervention, and a “world ordered by sovereign states” present other points of disagreement. We live in a time of increasing interdependence and transnational interaction with respect to all sectors of public life, including trade and investment, energy, organized crime, law enforcement, banking, politics, the world wide web, and other forms of access to knowledge and communication, such as news media, intelligence gathering, education, culture, religion, entertainment, transportation, leisure, food and agriculture, the environment, health, employment, human invention, and exploration of space. Each year, tens of millions of United States citizens travel or work abroad, and tens of millions of other persons come to the United States. Among the many other nonstate participants in various geographically unmoored sectors of public life are multinational corporations, organized criminal entities, and religious entities that can sometimes wield more wealth and power than most states, and that might even control some states. Other potentially significant nonstate participants in economic, diplomatic, enlightenment, and political processes include trade organizations, international and regional intergovernmental organizations, nongovernmental organizations, and various media. Most sectors of the practice of law in major cities within the United States are also increasingly unmoored by geography. No first year law school course, and hardly any “bar course” or specialty course, is without its transnational and international legal elements. This is true regardless of whether law schools adequately prepare, and state bar examiners adequately test, our students for the changing practice of law.

An “absolute right of the sovereign” and “untrammeled” state sovereignty were never real and always faced opposition. Today, they are pipe dreams and are still not preferable, especially with respect to the protection of customary and treaty-based human rights, prohibitions of genocide and other crimes against humanity, and the control of terrorism. Within the United States, the very notion of sovereignty is one associated with the primary authority of the people of the United States, and not the state. This association is increasingly recognized in international law with respect to self-determination of peoples (not states) and the legitimacy of governments under human rights law.

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