Academic journal article ARIEL

Power Politics and International Public Law: Lessons from Benito Cereno

Academic journal article ARIEL

Power Politics and International Public Law: Lessons from Benito Cereno

Article excerpt

  Silent leges inter arma. During war, the laws are silent.
  Marcus Tullius Cicero, ProMilone 11

I. Introduction

Alone on the high seas, on the verge of the 19th century, the Spanish galleon San Dominick, captained by Benito Cereno, is engulfed in revolution when its cargo decides to alter their status. (1) The slaves' rebellion, led by their most intelligent, Babo, and their strongest, Atufal, upends the Spaniards' routine transportation of their "legal property" to the New World. When an American ship crosses paths with the San Dominick, its captain, Amasa Delano, boards the Spanish galleon as Cereno's guest, blissfully unaware that Cereno is no longer in power. Knowing that his rebellion will be quickly quashed if the Americans discover the slaves' mutiny, Babo orchestrates an elaborate act, in which the slaves pretend to be slaves, and the masters pretend to be masters, on pain of death. Eventually, though, Cereno manages to alert the naive Delano to the situation, and the Americans promptly overpower the slaves with their superior strength, numbers, and firepower. In the battle, Atufal is shot and killed, and Babo is captured. He is taken back to land and subjected to a trial under Spanish law. With all "due process," Babo is tried, and hanged.

On the high seas, the law is the tool of the strong, not necessarily the just. What passes for "governing law" on the high seas is not a mutually agreed-upon compact of peace and order between equals, but the law of the slave owners, enforced at gunpoint. In the sea of international relations, a veneer of agreements, protocols, and resolutions passes for public international law. But as Herman Melville's 1855 novella Benito Cereno suggests (certainly not for the first or last time), law is meaningless in the absence of power. While a putative first-world definition of "law" is absolutely dependent on mutual compacts between equals, the inequality between first world and third world in international relations, represented by the novella's white owners and black slaves, means that there can be no such compact. How can treaties between "partners" that are radically unequal be bargained for fairly and justly? How will deals between the developed and developing world be enforced when--not if, but when--the powerful decide to abrogate their agreements and flout the very notion of an international law? What recourse, for example, do Bangladesh and Micronesia--countries whose very existence is threatened by global warming--have against the United States for abandoning the Kyoto Protocol? If a just law requires a contract of equals, public international law is a "knot of contrariety" between two paradoxical pulls. On one end of the rope is the first world's advocacy of democracy and justice. On the other end is the first world's vested interest in maintaining the globe's order of inequality.

Babo's execution may suggest that any temporary disorder on the high seas will be ordered by the law of the victor, inexorably quelled, by violence if necessary. But Captain Benito Cereno's desolate demise, following shortly after the legal formalism of his testimony in the Babo case as presented through a deposition transcript, hints that even the master of a system of radical inequality cannot survive it.

This paper examines the connections between the power imbalance on the high seas of Melville's text and the power imbalance that inheres in international relations, in order to explore how parties of unequal status behave, and why they behave as they do, in the absence of a controlling and enforcing authority. Section II discusses the power politics surrounding the formation of two recent international treaties. Section III explores the similarities between the formation of these treaties and Melville's concept of the law of the high seas. Section IV discusses the complexities in the concept of self-defense in criminal law and its application to these questions. …

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