Jutta Brunnee Research Articles

Complexity Rules (or: Ruling Complexity), a Response to Jutta Brunnne

This paper is a comment on the capacity of international law to address complex problems such as climate change, as a complement and response to a paper written on the topic by Prof. Jutta Brunnee, as part of the Berlin/Potsdam research group, International rule of law - Rise or Decline?. The comment first questions whether complexity is in fact a special case or rather an all-pervading characteristic of international relations, and by extension, of international law. Second, the comment questions - notwithstanding the current angst that internationalist lawyers feel and express due to what seems like a tidal-scale assault on international law - whether the international rule-of-law management of complexity is a particularly contemporary issue, or just another iteration of recurrent, resurgent, occasionally even refreshing, frictions that characterize international law. Third, the comment asks whether the challenges of complexity maintain a special relationship with international law, or whether these are substantially the same as the interactions of these issues with domestic legal systems.

Legalise or Not to Legalise International Trade: The Interactionalism Approach

This article undertakes an innovative analysis of the theoretical and practical bases of world trade law by employing the interactional international law theory developed by Jutta Brunnee and Stephen Toope, and the jurisprudence of Lon L. Fuller. There are two main reasons for choosing an interactional approach. Firstly, through the constructivist notion of shared understandings, it offers a suitable framework for identifying the social foundations of world trade in terms of economic and legal inputs into the system. Secondly, Fuller’s contributions are acutely relevant to the world trade law because of the economics foundation of his morality of law thesis, and his insightful reflections on fidelity to law, legality, and adjudication. Fuller’s jurisprudence pays close attention to the limits of adjudicating institutional rules that apply to the allocation of economic resources. This makes it useful for discussing the procedural challenges facing the World Trade Organization compliance regime.

Promoting Compliance in an Evolving Climate Regime. Edited By JUTTA BRUNNEE, MEINHARD DOELLE and LAVANYA RAJAMANI

Promoting Compliance in an Evolving Climate Regime. Edited By JUTTA BRUNNEE, MEINHARD DOELLE and LAVANYA RAJAMANI

The Work of Lon Fuller: A Promising Direction for Jurisprudence in the 21st Century

This is a review article of Kristen Rundle, Forms Liberate. Reclaiming the Jurisprudence of Lon L Fuller, and Jutta Brunnee & Stephen John Toope, Legitimacy and Legality in International Law. An Interactional Account. It puts both books in perspective, in the context of a modest Fuller revival since 1994. Rundle successfully tries to reclaim Fuller from the distorted picture that arose in the wake of the Hart-Fuller debate. According to Rundle, Fuller’s most important and still highly relevant message is that we should take the form of law seriously. There is a connection between the form of law and how law approaches human agency. Rundle relies extensively on unpublished materials from the Fuller archives. This was a fortunate choice, because in those materials Fuller was often franker and clearer than in the published materials. An interesting application of Fuller’s work is found in the field of international law, which has always been the Achilles heel of legal positivism. Jutta Brunnee and Stephen Toope have elaborated and adapted the Fullerian framework so that it provides an adequate theory of international law. In my view, they have provided a highly convincing account of the emergence of international law. Both books share a certain bias. First, the implicit focus on legislation leads to the neglect of other forms of law, such as contract. Second, Rundle’s focus on the conversations with Hart and others, and Brunnee and Toope’s focus on The Morality of Law, results in the neglect of those publications in which Fuller tried to transcend philosophical debates and present the field of jurisprudence in a relatively impartial way. For example, in Anatomy of the Law, Fuller tries seriously to do justice to the core of truth in both legal positivism and natural law thinking, to made law and to implicit law. I argue that once we accept that law is a gradual and pluralist concept, Fuller’s work may be seen to provide a rich source of inspiration. Perhaps his work is even more relevant and productive for the legal research agenda of the 21st century than it was in the last century.

Climate Change Liability: Transnational Law and Practice. Edited by Richard Lord, Silke Goldberg, Lavanya Rajamani and Jutta Brunnee

Climate Change Liability: Transnational Law and Practice. Edited by Richard Lord, Silke Goldberg, Lavanya Rajamani and Jutta Brunnee

Jutta Brunnee, Stephen J. Toope. Legitimacy and Legality in International Law

�The hard work of international law is never done� (at 8). What might sound like a truism to some is still not well accounted for by a vast body of scholarship even when crossing the boundaries between the two fields of International Law and International Relations (IR). Yet, Jutta Brunnee and Stephen Toope do engage in an insightful discussion of just that ongoing �hard work�. The authors carefully develop what they call an �interactional account of international law� and apply this concept to the three regimes on climate change, torture, and the use of force. By the same token, the work takes issue with the concept of compliance that, following Brunnee and Toope, cannot be reduced to an �outcome produced by the norm� (at 121). This approach by itself is impressive. While articulating the (cl)aim to establish a theory of international legal obligation, the authors ask for the distinctive feature of law as a specific type of social ordering. They argue that this distinctiveness emanates from the �adherence to specific criteria of legality� that they substantiate in accordance with the work of Lon Fuller: �generality, promulgation, non-retroactivity, clarity, non-contradiction, not asking the impossible, constancy, and congruence between rules and official action� (at 6). Hence, it is not the mere form of specific rules (as legal rules) or the enforcement of those rules that accounts for the relevant difference; it is practice that applies norms according to these criteria. In the first part of the book the theoretical argument, the �interactional account�, is established in three moves: the reproduction of Fuller's legal theory and its deployment in the international realm (ch. 1), the elaboration of the social underpinnings of international law through a discussion of constructivist work in IR (ch. 2), and a critical engagement with the concept of compliance with

Canada and the Use of Force: Reclaiming Human Security

Jutta Brunnee is professor of law and Metcalf Chair in Environmental Law at the University of Toronto, and Stephen J. Toope is president of the Pierre Elliott Trudeau Foundation and professor of law at McGill University (on leave). The views expressed should not be attributed to the Foundation. The authors benefitted from the excellent research assistance of Sarah Perkins, Robert Rastorp and Sean Rehaag. In September 2003, the Canadian Centre for Foreign Policy Development of DFAIT funded a workshop that considered a draft of this paper. The authors thank all the workshop participants and Kent Roach for their comments. This essay is part of a larger research project funded by the Social Sciences and Humanities Research Council of Canada.THE EVENTS OF 11 SEPTEMBER 2001 PROPELLED the issue of global terrorism to the top of the international agenda, and prompted dramatic shifts in international political dynamics. Although there is wide agreement that the world is facing complex security challenges, a harsh debate has opened up over the appropriate responses. Building on the existing rhetoric of the clash of civilizations,(1) this debate was initially cast as one between the west and Islam and emerged immediately upon the invasion of Afghanistan. What is now apparent is that fissures have broken open within western culture that may be equally wide.(2) The most pointed disagreements pit the political and cultural elites of Old Europe against those of the United States,(3) but the phenomenon is broader, setting traditional allies such as the United States and Canada in opposition to each other.(4) Moreover, within western states, political divisions over the war in Iraq accentuated a widening chasm between liberal and neo-conservative forces.(5)Around the globe, the debate over responses to global terrorism has raised hard issues concerning the interplay of security concerns, human rights, democratic governance and the use of force. Within the US, influential voices are articulating a merging of these concerns in a way that fundamentally challenges the concepts of state sovereignty, non-intervention and political independence.(6) Fear seems to be the driving force for normative change. This fear is accentuated by the now-recognized vulnerability of the infrastructure of modern society, and by uncertainty as to who will be targeted and by what horrific means of attack. All values are becoming subsumed within the value of security, justifying the use of force against other states in an ever-broadening set of circumstances. Canada is particularly implicated in these developments for they threaten to subvert the goals of the human security agenda that has defined recent Canadian foreign policy. The basic premise of that agenda has been that security concerns should be evaluated primarily on the basis of the well-being of people rather than the physical security of states.(7) In the vast majority of cases, the promotion of human security calls not for the resort to military force but for measures that build social and economic capital and improve local governance. In the face of recent developments, Canada must reclaim, and probably recast, the human security agenda. It should also resist arguments for excessive reliance on the use of force. Moreover, caution is warranted where human security arguments are deployed to bolster defensive considerations that do not actually rise to a level justifying the use of armed force under international law.THE GLOBAL POLICY ARENAThe shifts in policy and perception that are taking place are transforming the global political context, but the trajectory of change is not clear. Clashes of civilization,(8) power and weakness,(9) or even the rise of a new Rome(10) are not simply circumstances of fact. They are also social constructions, built in large part upon ideas and norms.(11) States continue to define their relationships with each other through political choices that are influenced by prevailing norms. …

Canadian Armed Forces under United States Command

Associate Professor, Duke University Law School. This is a revised and condensed version of a report commissioned by the Simons Centre for Peace & Disarmament Studies, University of British Columbia, and presented to the House of Commons Standing Committee on Foreign Affairs & International Trade, 6 May 2002. I am grateful for comments from Robert Adamson, Lloyd Axworthy, Gerry Barr, Douglas Bland, Bruce Broomhall, Jutta Brunnee, Maurice Copithorne, Paul Evans, John Godfrey, David Haglund, Brian Job, Nicole LaViolette, Neil MacFarlane, Patricia Marchack, Pierre Martin, Donald McRae, Richard Price, Rene Provost, Ernie Regehr, Marco Sassoli, Jennifer Simons, Penelope Simons, Stephen Toope, and Michael Wallace.IN JANUARY 2002, IT BECAME APPARENT that negotiations were under way to place a substantial part of the Canadian armed forces - land and sea forces as well as air - under the operational control of a permanent, integrated command structure under United States leadership.(1) The creation of a 'Northern Command' in April 2002 unified the continental United States into a single military command and provided a logical precursor to an expansion that would include Canada and Canadian forces.(2) A number of difficult questions will have to be answered before the Canadian government could responsibly embark on closer military co-operation of this kind.UNITED NATIONS/NATO/NORAD OPERATIONSCanadian soldiers have in the past functioned under United States command in operations authorized by the United Nations, the North Atlantic Treaty Organization (NATO), and in the North American Aerospace Defence Command. The first operation authorized by the United Nations Security Council was the 1950 intervention in Korea. Subsequent operations include the 1991 Gulf War and the intervention in Bosnia-Herzegovina in 1991-5. Canada has also placed its soldiers under foreign command within peacekeeping operations authorized by the General Assembly. Those operations are not contentious: the Council and the Assembly operate under the United Nations Charter - a multilateral treaty ratified by 190 states. Although American commanders are sometimes in charge of day-to-day operations, they have the explicit, delegated authority of the international community behind them. And these operations are, in any case, temporary in scope.As parties to the 1949 North Atlantic Treaty, Canada and the United States are obligated to assist any NATO member country subject to an armed attack. This obligation, set out in article 5, has been invoked only once - by the United States following the 11 September 2001 attacks in New York and Washington. Even then NATO was not called upon to engage in military action. Article 5 operations would be very different from that which is contemplated today. NATO structures remain largely dormant and without authority, except in those specific instances in which the members agree to activate them. Moreover, NATO, like the United Nations, is a multilateral organization - in this case composed of 19 states. When an American commander is placed in charge of an operation, he acts as a NATO commander within the multilateral structure.Outside the context of article 5, NATO participated in operations authorized by the Security Council in Bosnia-Herzegovina. And in one instance - Kosovo - NATO acted without explicit United Nations approval. But even then, the operation was that of a multilateral organization, subject to its authorization and control. Every target had to be approved unanimously by all involved governments.NORAD was designed to enable rapid responses to incursions into Canadian or United States airspace by Soviet bombers. Its integrated command structure is limited to one specific function - air defence - and involves a relatively small part of the Canadian forces. Since the end of the cold war, the number of Canadian planes and pilots required for NORAD duties has decreased. And pilots on intercept missions do not encounter many of the legal issues faced by ground and naval personnel, since they do not, for example, take prisoners or lay mines. …