Rules For Nations

More recently, however, international law has come under fire by John Bolton, among others, in an attempt to explore options for United Nations reform. In a refreshing and timely new study, Jack Goldsmith and Eric Posner argue that the current underlying assumptions of international law fundamentally misunderstand the way the world works, and thus provide an unstable legal bedrock for many international institutions.

The dominant academic theory of international law posits that states comply with international law because it is legally binding and the morally right thing to do. Even if it is not in their interest, states will still operate under international law out of respect for its universal legitimacy. International legal norms, so the theory goes, will eventually trickle down and shape a state’s domestic behavior with regard to the environment, human rights, and so forth.

Goldsmith and Posner take issue with this elaborate fantasy. Armed with rational-choice theory, they systematically demonstrate that states comply with international law only when it serves their interests–interests that are rarely governed by international legal considerations.

Ambassadorial immunity, for instance, is commonly taken as a textbook example of the international community committing itself to a binding legal principle. States agree not to interfere with each other’s diplomatic personnel out of deference to international law, and as a way of providing peaceful means for settling international disputes. But that is not the real motive for compliance, according to Goldsmith and Posner. The United States and the Soviet Union maintained diplomatic relations during the Cold War because they both had an interest at stake in those relations (each also had an embassy in jeopardy). The Soviet-U.S. coincidence of interest existed regardless of, rather than because of, any international legal norms.

Back in 1914, when the State Department discovered that a German attaché was conspiring against the neutrality of the United States in World War I, diplomatic immunity did not protect him from the American justice system. When the balance tips in favor of self-interest, a state–whether it be the United States, France, or Pakistan–will make an exception to international law in a heartbeat.

Why, then, do countries make use of international law if it holds so little weight? Precisely because international talk is cheap, say Goldsmith and Posner. In the case of human rights treaties such as the International Covenant on Civil and Political Rights, states like Rwanda, Iraq, and Afghanistan were happy to ratify it because appeasing the international community could only bring them economic benefits, especially since they knew the treaty would not be enforced.

Historically, states have cloaked their intentions in the rhetoric of international law to avoid immediate reprisals for their actions. In its early years of conquest, Hitler’s Germany was remarkably diligent about paying lip service to international law and treaties as a way of obscuring its strategic motives. Paying tribute to international law is, in fact, one of the best ways a government can conceal self-interest and rationalize its policies in moral terms.

The real problem with international law is not so much that it is weak–it could, after all, be more rigorously enforced–but that its philosophical foundations are faulty. Conservatives commonly draw attention to the fact that international law is inimical to democracy in that it imposes a nebulous international will on locally elected governments. That much may be clear, but the authors point out that much of the problem owes to an endemic conflation of international law and moral obligation. Moral obligations, they argue, have no place in international law. Governments in states change hands too often for moral obligations to be expected of any state; and, at the international level, moral obligations make international law vulnerable to political exploitation.

Moreover, the ultimate purpose of a state is to secure rights for its own citizens, not to perform charitable acts that are better carried out by institutions designated for that purpose. In the view of Goldsmith and Posner, treaties modeled on trade agreements are among the most effective ways for states to come together.

When Jacques Chirac called the war in Iraq “illegal,” he was hoping to cash in on the confusion about international law. But to properly deem any international action “illegal” in terms of international law, one would have to argue that the status quo for the international rules of war was good and should not be violated. In the case of Iraq, that would mean arguing that a slow-in-coming U.N. mandate should have trumped military necessity.

To understand the limits of international law, the authors argue, one must understand international law as a record of traditional international behavior that can only be regulated by states’ current actions. Understood as such, international law can only be altered and improved by violations, in much the same way the Constitution violated and improved upon the Articles of Confederation. Though they may sound at times like old-fashioned champions of the nation-state, Goldsmith and Posner believe that only by appreciating these limitations of international law can the institution be made more effective.

In this pragmatic spirit, The Limits of International Law makes for a valuable contribution to international relations and a useful book for lawmakers and laymen alike.

Thomas Meaney is a writer living in New York.